[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 II:
FLOOR TRIAL PROCEEDINGS
VOLUME II OF IV
February 12, 1999.--Ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
57-102 WASHINGTON : 2000
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)]
aking 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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
. 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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
8 (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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
986
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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
601982
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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
aking 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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
(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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
d 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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
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 (daily ed. Feb. 9, 1999)] I601997
I21Order to Secretary of the Senate
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.
Thursday, January 14, 1999
[From the Congressional Record]
The Senate met at 1:04 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Almighty God, whose providential care has never varied all
through our Nation's history, we ask You for a special measure
of wisdom for the women and men of this Senate as they act as
jurors in this impeachment trial. You have been our Nation's
refuge and strength in triumphs and troubles, prosperity and
problems. Now, dear Father, help us through this difficult
time. As You guided the Senators to unity in matters of
procedure, continue to make them one in their search for the
truth and in their expression of justice. Keep them focused in
a spirit of nonpartisan patriotism today and in the crucial
days to come. Bless the distinguished Chief Justice as he
presides over this trial. We commit to You all that is said and
done and ultimately decided. In Your holy Name. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against William Jefferson Clinton,
President of the United States.
The CHIEF JUSTICE. The Presiding Officer recognizes the
majority leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
installing equipment and furniture in the senate chamber
Mr. LOTT. I send a resolution to the desk providing for
installing equipment and furniture in the Senate Chamber and
ask that it be agreed to and the motion to reconsider be laid
upon the table.
The CHIEF JUSTICE. The clerk will report the resolution by
title.
The legislative clerk read as follows:
A resolution (S. Res. 17), to authorize the installation of
appropriate equipment and furniture in the Senate Chamber for the
impeachment trial.
The CHIEF JUSTICE. Without objection, the resolution is
considered and agreed to.
The resolution (S. Res. 17) was agreed to, as follows:
S. Res. 17
Resolved, That in recognition of the unique requirements raised by
the impeachment trial of a President of the United States, the Sergeant
at Arms shall install appropriate equipment and furniture in the Senate
chamber for use by the managers from the House of Representatives and
counsel to the President in their presentations to the Senate during
all times that the Senate is sitting for trial with the Chief Justice
of the United States presiding.
Sec. 2. The appropriate equipment and furniture referred to in the
first section is as follows:
(1) A lectern, a witness table and chair if required, and
tables and chairs to accommodate an equal number of managers
from the House of Representatives and counsel for the President
which shall be placed in the well of the Senate.
(2) Such equipment as may be required to permit the display
of video, or audio evidence, including video monitors and
microphones, which may be placed in the chamber for use by the
managers from the House of Representatives or the counsel to
the President.
Sec. 3. All equipment and furniture authorized by this resolution
shall be placed in the chamber in a manner that provides the least
practicable disruption to Senate proceedings.
Privilege of the Floor
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent
that floor privileges be granted to the individuals listed on
the document I send to the desk, during the closed impeachment
proceedings of William Jefferson Clinton, President of the
United States.
The CHIEF JUSTICE. Without objection, it is so ordered.
The document follows.
Floor Privileges During Closed Session
David Hoppe, Administrative Assistant, Majority Leader.
Michael Wallace, Counsel, Majority Leader.
Robert Wilkie, Counsel, Majority Leader.
Bill Corr, Counsel, Democratic Leader.
Robert Bauer, Counsel, Democratic Leader.
Andrea LaRue, Counsel, Democratic Leader.
Peter Arapis, Floor Manager, Democratic Whip.
Kirk Matthew, Chief of Staff, Assistant Majority Leader.
Stewart Verdery, Counsel, Assistant Majority Leader.
Tom Griffith, Senate Legal Counsel.
Morgan Frankel, Deputy Senate Legal Counsel.
Loretta Symms, Deputy Sergeant at Arms.
Bruce Kasold, Chief Counsel, Secretary & Sergeant at Arms.
David Schiappa, Assistant Majority Secretary.
Lula Davis, Assistant Minority Secretary.
Alan Frumin, Assistant Parliamentarian.
Kevin Kayes, Assistant Parliamentarian.
Patrick Keating, Assistant Journal Clerk.
Scott Sanborn, Assistant Journal Clerk.
David Tinsley, Assistant Legislative Clerk.
Ronald Kavulick, Chief Reporter.
Jerald Linnell, Official Reporter.
Raleigh Milton, Official Reporter.
Joel Breitner, Official Reporter.
Mary Jane McCarthy, Official Reporter.
Paul Nelson, Official Reporter.
Katie-Jane Teel, Official Reporter.
Patrick Renzi, Official Reporter.
Lee Brown, Staff Assistant, Official Reporter.
Kathleen Alvarez, Bill Clerk.
Simon Sargent, Staff Assistant to Sen. Cleland.
Unanimous-Consent Agreement--Authority to Print Senate Documents
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the Secretary of the Senate be authorized to print as a Senate
document all documents filed by the parties together with other
materials for the convenience of all Senators.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I am about to submit a series
of unanimous-consent agreements and a resolution for the
consideration of the Senate. In addition to these matters, I
would like to state for the information of all Senators that,
pursuant to S. Res. 16, the evidentiary record on which the
parties' presentations over the next days will be based was
filed by the House managers yesterday and was distributed to
all Senators through their offices. These materials are now
being printed at the Government Printing Office as Senate
documents. The initial documents of the record have been
printed and are now at each Senator's desk. As the printing of
the rest of the volumes of the record is completed over the
next few days, they will also be placed on the Senators' desks
for their convenience.
THE JOURNAL
The CHIEF JUSTICE. Without objection, the Journal of the
proceedings of the trial is approved to date.
The Presiding Officer submits to the Senate for printing in
the Senate Journal the following documents:
The precept, issued on January 8, 1999;
The writ of summons, issued on January 8, 1999; and the
receipt of summons, dated January 8, 1999.
The Presiding Officer submits to the Senate for printing in
the Senate Journal the following documents, which were received
by the Secretary of the Senate pursuant to Senate Resolution
16, 106th Congress, first session:
The answer of William Jefferson Clinton, President of the
United States, to the articles of impeachment exhibited by the
House of Representatives against him on January 7, 1999,
received by the Secretary of the Senate on January 11, 1999;
The trial brief filed by the House of Representatives,
received by the Secretary of the Senate on January 11, 1999;
The trial brief filed by the President, received by the
Secretary of the Senate on January 13, 1999;
The replication of the House of Representatives, received
by the Secretary of the Senate on January 13, 1999; and
The rebuttal brief filed by the House of Representatives,
received by the Secretary of the Senate on January 14, 1999.
Without objection, the foregoing documents will be printed
in the Congressional Record.
The documents follow:
The United States of America, ss:
The Senate of the United States to James W. Ziglar, Sergeant at Arms,
United States Senate, greeting:
You are hereby commanded to deliver to and leave with William
Jefferson Clinton, if conveniently to be found, or if not, to leave at
his usual place of abode, a true and attested copy of the within writ
of summons, together with a like copy of this precept; and in
whichsoever way you perform the service, let it be done at least 2 days
before the answer day mentioned in the said writ of summons.
Fail not, and make return of this writ of summons and precept, with
your proceedings thereon indorsed, on or before the day for answering
mentioned in the said writ of summons.
Witness Strom Thurmond, President pro tempore of the Senate, at
Washington, D.C., this 8th day of January, 1999, the two hundred and
twenty-third year of the Independence of the United States.
Attest:
Gary Sisco,
Secretary of the Senate.
______
The United States of America, ss:
The Senate of the United States to William Jefferson Clinton, greeting:
Whereas the House of Representatives of the United States of
America did, on the 7th day of January, 1999, exhibit to the Senate
articles of impeachment against you, the said William Jefferson
Clinton, in the words following:
``Articles of impeachment exhibited by the House of Representatives
of the United States of America in the name of itself and of the people
of the United States of America, against William Jefferson Clinton,
President of the United States of America, in maintenance and support
of its impeachment against him for high crimes and misdemeanors.
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 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 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.
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 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
to 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.''
And demand that you, the said William Jefferson Clinton, should be put
to answer the accusations as set forth in said articles, and that such
proceedings, examinations, trials, and judgments might be thereupon had
as are agreeable to law and justice.
You, the said William Jefferson Clinton, are therefore hereby
summoned to file with the Secretary of the United States Senate, S-220
The Capitol, Washington, D.C., 20510, an answer to the said articles of
impeachment no later than noon on the 11th day of January, 1999, and
therefore to abide by, obey, and perform such orders, directions, and
judgments as the Senate of the United States shall make in the premises
according to the Constitution and laws of the United States.
Hereof you are not to fail.
Witness Strom Thurmond, President pro tempore of the Senate, at
Washington, D.C., this 8th day of January, 1999, the two hundred and
twenty-third year of the Independence of the United States.
Attest:
Gary Sisco,
Secretary of the Senate.
______
The foregoing writ of summons, addressed to William Jefferson
Clinton, President of the United States, and the foregoing precept,
addressed to me, were duly served upon the said William Jefferson
Clinton, by my delivering true and attested copies of the same to
Charles Ruff, at the White House, on the 8th day of January, 1999, at
5:27 p.m.
Attest:
James W. Ziglar,
Sergeant at Arms.
Loretta Symms,
Deputy Sergeant at Arms.
Dated: January 8, 1999.
Witnesseth:
Gary Sisco, Secretary,
United States Senate.
______
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of William Jefferson Clinton, President of the United
States
ANSWER OF PRESIDENT WILLIAM JEFFERSON CLINTON TO THE ARTICLES OF
IMPEACHMENT
The Honorable William Jefferson Clinton, President of the United
States, in response to the summons of the Senate of the United States,
answers the accusations made by the House of Representatives of the
United States in the two Articles of Impeachment it has exhibited to
the Senate as follows:
Preamble
The Charges in the Articles Do Not Constitute High Crimes or
Misdemeanors
The charges in the two Articles of Impeachment do not permit the
conviction and removal from office of a duly elected President. The
President has acknowledged conduct with Ms. Lewinsky that was improper.
But Article II, Section 4 of the Constitution provides that the
President shall be removed from office only upon ``Impeachment for, and
Conviction of, Treason, Bribery or other high Crimes and
Misdemeanors.'' The charges in the articles do not rise to the level of
``high Crimes and Misdemeanors'' as contemplated by the Founding
Fathers, and they do not satisfy the rigorous constitutional standard
applied throughout our Nation's history. Accordingly, the Articles of
Impeachment should be dismissed.
The President Did Not Commit Perjury or Obstruct Justice
The President denies each and every material allegation of the two
Articles of Impeachment not specifically admitted in this answer.
Article I
President Clinton denies that he made perjurious, false and
misleading statements before the federal grand jury on August 17, 1998.
Factual Responses to Article I
Without waiving his affirmative defenses, President Clinton offers
the following factual responses to the allegations in Article I:
(1) The President denies that he made perjurious, false and misleading
statements to the grand jury about ``the nature and details of
his relationship'' with Monica Lewinsky
There is a myth about President Clinton's testimony before the
grand jury. The myth is that the President failed to admit his improper
intimate relationship with Ms. Monica Lewinsky. The myth is perpetuated
by Article I, which accuses the President of lying about ``the nature
and details of his relationship'' with Ms. Lewinsky.
The fact is that the President specifically acknowledged to the
grand jury that he had an improper intimate relationship with Ms.
Lewinsky. He said so, plainly and clearly: ``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 involve
inappropriate intimate contact.'' The President described to the grand
jury how the relationship began and how it ended at his insistence
early in 1997--long before any public attention or scrutiny. He also
described to the grand jury how he had attempted to testify in the
deposition in the Jones case months earlier without having to
acknowledge to the Jones lawyers what he ultimately admitted to the
grand jury--that he had an improper intimate relationship with Ms.
Lewinsky.
The President read a prepared statement to the grand jury
acknowledging his relationship with Ms. Lewinsky. The statement was
offered at the beginning of his testimony to focus the questioning in a
manner that would allow the Office of Independent Counsel to obtain
necessary information without unduly dwelling on the salacious details
of the relationship. The President's statement was followed by almost
four hours of questioning. If it is charged that his statement was in
any respect perjurious, false and misleading, the President denies it.
The President also denies that the statement was in any way an attempt
to thwart the investigation.
The President states, as he did during his grand jury testimony,
that he engaged in improper physical contact with Ms. Lewinsky. The
President was truthful when he testified before the grand jury that he
did not engage in sexual relations with Ms. Lewinsky as he understood
that term to be defined by the Jones lawyers during their questioning
of him in that deposition. The President further denies that his other
statements to the grand jury about the nature and details of his
relationship with Ms. Lewinsky were perjurious, false, and misleading.
(2) The President denies that he made perjurious, false and misleading
statements to the grand jury when he testified about statements
he had made in the Jones deposition
There is a second myth about the President's testimony before the
grand jury. The myth is that the President adopted his entire Jones
deposition testimony in the grand jury. The President was not asked to
and did not broadly restate or reaffirm his Jones deposition testimony.
Instead, in the grand jury he discussed the bases for certain answers
he gave. The President testified truthfully in the grand jury about
statements he made in the Jones deposition. The President stated to the
grand jury that he did not attempt to be helpful to or assist the
lawyers in the Jones deposition in their quest for information about
his relationship with Ms. Lewinsky. He truthfully explained to the
grand jury his efforts to answer the questions in the Jones deposition
without disclosing his relationship with Ms. Lewinsky. Accordingly, the
full, underlying Jones deposition is not before the Senate.
Indeed, the House specifically considered and rejected an article
of impeachment based on the President's deposition in the Jones case.
The House managers should not be allowed to prosecute before the Senate
an article of impeachment which the full House has rejected.
(3) The President denies that he made perjurious, false and misleading
statements to the grand jury about ``statements he allowed his
attorney to make'' during the Jones deposition
The President denies that he made perjurious, false and misleading
statements to the grand jury about the statements his attorney made
during the Jones deposition. The President was truthful when he
explained to the grand jury his understanding of certain statements
made by his lawyer, Robert Bennett, during the Jones deposition. The
President also was truthful when he testified that he was not focusing
on the prolonged and complicated exchange between the attorneys and
Judge Wright.
(4) The President denies that he made perjurious, false and misleading
statements to the grand jury concerning alleged efforts ``to
influence the testimony of witnesses and to impede the
discovery of evidence'' in the Jones case
For the reasons discussed more fully in response to Article II, the
President denies that he attempted to influence the testimony of any
witness or to impede the discovery of evidence in the Jones case. Thus,
the President denies that he made perjurious, false and misleading
statements before the grand jury when he testified about these matters.
First Affirmative Defense: Article I Does Not Meet the Constitutional
Standard for Conviction and Removal
For the same reasons set forth in the preamble of this answer,
Article I does not meet the rigorous constitutional standard for
conviction and removal from office of a duly elected President and
should be dismissed.
Second Affirmative Defense: Article I Is Too Vague To Permit Conviction
and Removal
Article I is unconstitutionally vague. No reasonable person could
know what specific charges are being leveled against the President. It
alleges that the President provided the grand jury with ``perjurious,
false, and misleading testimony'' concerning ``one or more'' of four
subject areas. But it fails to identify any specific statement by the
President that is alleged to be perjurious, false and misleading. The
House has left the Senate and the President to guess at what it had in
mind.
One of the fundamental principles of our law and the Constitution
is that a person has a right to know what specific charges he or she is
facing. Without such fair warning, no one can prepare the defense to
which every person is entitled. The law and the Constitution also
mandate adequate notice to jurors so they may know the basis for the
vote they must make. Without a definite and specific identification of
false statements, a trial becomes a moving target for the accused. In
addition, the American people deserve to know upon what specific
statements the President is being judged, given the gravity and effect
of these proceedings, namely nullifying the results of a national
election.
Article I sweeps broadly and fails to provide the required definite
and specific identification. Were it an indictment, it would be
dismissed. As an article of impeachment, it is constitutionally
defective and should fail.
Third Affirmative Defense: Article I Charges Multiple Offense in One
Article
Article I is fatally flawed because it charges multiple instances
of alleged perjurious, false and misleading statements in one article.
The Constitution provides that ``no person shall be convicted without
the Concurrence of two thirds of the Members present,'' and Senate Rule
XXIII provides that ``an article of impeachment shall not be divisible
for the purpose of voting thereon at any time during the trial.'' By
the express terms of Article I, a Senator may vote for impeachment if
he or she finds that there was perjurious, false and misleading
testimony in ``one or more'' of four topic areas. This creates the very
real possibility that conviction could occur even though Senators were
in wide disagreement as to the alleged wrong committed. Put simply, the
structure of Article I presents the possibility that the President
could be convicted even though he would have been acquitted if separate
votes were taken on each allegedly perjurious statement. For example,
it would be possible for the President to be convicted and removed from
office with as few as 17 Senators agreeing that any single statement
was perjurious, because 17 votes for each of the four categories in
Article I would yield 68 votes, one more than necessary to convict and
remove.
By charging multiple wrongs in one article, the House of
Representatives has made it impossible for the Senate to comply with
the Constitutional mandate that any conviction be by the concurrence of
two-thirds of the members. Accordingly, Article I should fail.
Factual Responses to Article II
Without waiving his affirmative defenses, President Clinton offers
the following factual responses to the allegations in Article II:
(1) The President denies that on or about December 17, 1997, he
``corruptly encouraged'' Monica Lewinsky ``to execute a sworn
affidavit in that proceeding that he knew to be perjurious,
false and misleading''
The President denies that he encouraged Monica Lewinsky to execute
a false affidavit in the Jones case. Ms. Lewinsky, the only witness
cited in support of this allegation, denies this allegation as well.
Her testimony and proffered statements are clear and unmistakable:
``[N]o one even asked me to lie and I was never promised a
job for my silence.''
``Neither the President nor anyone ever directed Lewinsky
to say anything or to lie . . .''
``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L[ewinsky] to lie.''
The President states that, sometime in December 1997, Ms. Lewinsky
asked him whether she might be able to avoid testifying the Jones case
because she knew nothing about Ms. Jones or the case. The President
further states that he told her he believed other witnesses had
executed affidavits, and there was a chance they would not have to
testify. The President denies that he ever asked, encouraged or
suggested that Ms. Lewinsky file a false affidavit or lie. The
President states that he believed that Ms. Lewinsky could have filed a
limited but truthful affidavit that might have enabled her to avoid
having to testify in the Jones case.
(2) The President denies that on or about December 17, 1997, he
``corruptly encouraged'' Monica Lewinsky ``to give perjurious,
false and misleading testimony of and when called to testify
personally'' in the Jones litigation
Again, the President denies that he encouraged Ms. Lewinsky to lie
if and when called to testify personally in the Jones case. The
testimony and proffered statements of Monica Lewinsky, the only witness
cited in support of this allegation, are clear and unmistakable:
``[N]o one ever asked me to lie and I was never promised a
job for my silence.''
``Neither the President nor anyone ever directed Lewinsky
to say anything or to lie . . .''
``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L[ewinsky] to lie.''
The President states that, prior to Ms. Lewinsky's involvement in
the Jones case, he and Ms. Lewinsky might have talked about what to do
to conceal their relationship from others. Ms. Lewinsky was not a
witness in any legal proceeding at that time. Ms. Lewinsky's own
testimony and statements support the President's recollection. Ms.
Lewinsky testified that she ``pretty much can'' exclude the possibility
that she and the President ever had discussions about denying the
relationship after she learned she was a witness in the Jones case. Ms.
Lewinsky also stated that ``they did not discuss the issue [of what to
say about their relationship] is specific relation to the Jones
matter,'' and that ``she does not believe they discussed the content of
any deposition that [she] might be involved in at a later date.''
(3) The President denies that on or about December 28, 1997, he
``corruptly engaged in, encouraged, or supported a scheme to
conceal evidence'' in the Jones case
The President denies that he engaged in, encouraged, or supported
any scheme to conceal evidence from discovery in the Jones case,
including any gifts he had given to Ms. Lewinsky. The President states
that he gave numerous gifts to Ms. Lewinsky prior to December 28, 1997.
The President states that, sometime in December, Ms. Lewinsky inquired
as to what to do if she were asked in the Jones case about the gifts he
had given her, to which the President responded that she would have to
turn over whatever she had. The President states that he was
unconcerned about having given her gifts and, in fact, that he gave Ms.
Lewinsky additional gifts on December 28, 1997. The President denies
that he ever asked his secretary, Ms. Betty Currie, to retrieve gifts
he had given Ms. Lewinsky, or that he ever asked, encouraged, or
suggested that Ms. Lewinsky conceal the gifts. Ms. Currie told
prosecutors as early as January 1998 and repeatedly thereafter that it
was Ms. Lewinsky who had contacted her about retrieving gifts.
(4) The President denies that he obstructed justice in connection with
Monica Lewinsky's efforts to obtain a job in New York to
``corruptly prevent'' her ``truthful testimony'' in the Jones
case
The President denies that he obstructed justice in connection with
Ms. Lewinsky's job search in New York or sought to prevent her truthful
testimony in the Jones case. The President states that he discussed
with Ms. Lewinsky her desire to obtain a job in New York months before
she was listed as a potential witness in the Jones case. Indeed, Ms.
Lewinsky was offered a job in New York at the United Nations more than
a month before she was identified as a possible witness. The President
also states that he believes that Ms. Lewinsky raised with him, again
before she was ever listed as a possible witness in the Jones case, the
prospect of having Mr. Vernon Jordan assist in her job search. Ms.
Lewinsky corroborates his recollection that it was her idea to ask for
Mr. Jordan's help. The President also states that he was aware that Mr.
Jordan was assisting Ms. Lewinsky to obtain employment in New York. The
President denies that any of these efforts had any connection
whatsoever to Ms. Lewinsky's status as a possible or actual witness in
the Jones case. Ms. Lewinsky forcefully confirmed the President's
denial when she testified, ``I was never promised a job for my
silence.''
(5) The President denies that he ``corruptly allowed his attorney to
make false and misleading statements to a Federal judge''
concerning Monica Lewinsky's affidavit
The President denies that he corruptly allowed his attorney to make
false and misleading statements concerning Ms. Lewinsky's affidavit to
a Federal judge during the Jones deposition. The President denies that
he was focusing his attention on the prolonged and complicated exchange
between his attorney and Judge Wright.
(6) The President denies that he obstructed justice by relating ``false
and misleading statements'' to ``a potential witness,'' Betty
Currie, ``in order to corruptly influence [her] testimony''
The President denies that he obstructed justice or endeavored in
any way to influence any potential testimony of Ms. Betty Currie. The
President states that he spoke with Ms. Currie on January 18, 1998. The
President testified that, in that conversation, he was trying to find
out what the facts were, what Ms. Currie's perception was, and whether
his own recollection was correct about certain aspects of his
relationship with Ms. Lewinsky. Ms. Currie testified that she felt no
pressure ``whatsoever'' from the President's statements and no pressure
``to agree with [her] boss.'' The President denies knowing or believing
that Ms. Currie would be a witness in any proceeding at the time of
this conversation. Ms. Currie had not been on any of the witness lists
proffered by the Jones lawyers. President Clinton states that, after
the Independent Counsel investigation became public, when Ms. Currie
was scheduled to testify, he told Ms. Currie to ``tell the truth.''
(7) The President denies that he obstructed justice when he relayed
allegedly ``false and misleading statements'' to his aides
The President denies that he obstructed justice when he misled his
aides about the nature of his relationship with Ms. Lewinsky in the
days immediately following the public revelation of the Lewinsky
investigation. The President acknowledges that, in the days following
the January 21, 1998, Washington Post article, he misled his family,
his friends and staff, and the Nation to conceal the nature of his
relationship with Ms. Lewinsky. He sought to avoid disclosing his
personal wrongdoing to protect his family and himself from hurt and
public embarrassment. The President profoundly regrets his actions, and
he has apologized to his family, his friends and staff, and the Nation.
The President denies that he had any corrupt purpose or any intent to
influence the ongoing grand jury proceedings.
First Affirmative Defense: Article II Does Not Meet the Constitutional
Standard for Conviction and Removal
For the reasons set forth in the preamble of this answer, Article
II does not meet the constitutional standard for convicting and
removing a duly elected President from office and should be dismissed.
Second Affirmative Defense: Article II Is Too Vague To Permit
Conviction and Removal
Article II is unconstitutionally vague. No reasonable person could
know what specific charges are being leveled against the President.
Article II alleges that the President ``obstructed and impeded the
administration of justice'' in both the Jones case and the grand jury
investigation. But it provides little or no concrete information about
the specific acts in which the President is alleged to have engaged, or
with whom, or when, that allegedly obstructed or otherwise impeded the
administration of justice.
As we set forth in the Second Affirmative Defense to Article I, one
of the fundamental principles of our law and the Constitution is that a
person has the right to know what specific charges he or she is facing.
Without such fair warning, no one can mount the defense to which every
person is entitled. Fundamental to due process is the right of the
President to be adequately informed of the charges so that he is able
to confront those charges and defend himself.
Article II sweeps too broadly and provides too little definite and
specific identification. Were it an indictment, it would be dismissed.
As an article of impeachment, it is constitutionally defective and
should fail.
Third Affirmative Defense: Article II Charges Multiple Offenses in One
Article
For the reasons set forth in the Third Affirmative Defense to
Article I, Article II is constitutionally defective because it charges
multiple instances of alleged acts of obstruction in one article, which
makes it impossible for the Senate to comply with the Constitutional
mandates that any conviction be by the concurrence of the two-thirds of
the members. Accordingly, Article II should fail.
Respectfully submitted,
David E. Kendall,
Nicole K. Seligman,
Emmet T. Flood,
Max Stier,
Glen Donath,
Alicia Marti,
Williams & Connolly,
725 12th Street, N.W.,
Washington, D.C. 20005.
Charles F. C. Ruff,
Gregory B. Craig,
Bruce R. Lindsey,
Cheryl D. Mills,
Lanny A. Breuer,
Office of the White House
Counsel,
The White House,
Washington, D.C. 20502.
Submitted: January 11, 1999.
______
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
TRIAL MEMORANDUM OF THE UNITED STATES HOUSE OF REPRESENTATIVES
Now comes the United States House of Representatives, by and
through its duly authorized Managers, and respectfully submits to the
United States Senate its Brief in connection with the Impeachment Trial
of William Jefferson Clinton, President of the United States.
Summary
The President is charged in two Articles with: (1) Perjury and
false and misleading testimony and statements under oath before a
federal grand jury (Article I), and (2) engaging in a course of conduct
or scheme to delay and obstruct justice (Article II).
The evidence contained in the record, when viewed as a unified
whole, overwhelmingly supports both charges.
perjury and false statements under oath
President Clinton deliberately and willfully testified falsely
under oath when he appeared before a federal grand jury on August 17,
1998. Although what follows is not exhaustive, some of the more overt
examples will serve to illustrate.
At the very outset, the President read a prepared
statement, which itself contained totally false assertions and other
clearly misleading information.
The President relied on his statement nineteen times in
his testimony when questioned about his relationship with Ms. Lewinsky.
President Clinton falsely testified that he was not paying
attention when his lawyer employed Ms. Lewinsky's false affidavit at
the Jones deposition.
He falsely claimed that his actions with Ms. Lewinsky did
not fall within the definition of ``sexual relations'' that was given
at his deposition.
He falsely testified that he answered questions truthfully
at his deposition concerning, among other subjects, whether he had been
alone with Ms. Lewinsky.
He falsely testified that he instructed Ms. Lewinsky to
turn over the gifts if she were subpoenaed.
He falsely denied trying to influence Ms. Currie after his
deposition.
He falsely testified that he was truthful to his aides
when he gave accounts of his relationship, which accounts were
subsequently disseminated to the media and the grand jury.
obstruction of justice
The President engaged in an ongoing scheme to obstruct both the
Jones civil case and the grand jury. Further, he undertook a continuing
and concerted plan to tamper with witnesses and prospective witnesses
for the purpose of causing those witnesses to provide false and
misleading testimony. Examples abound:
The President and Ms. Lewinsky concocted a cover story to
conceal their relationship, and the President suggested that she employ
that story if subpoenaed in the Jones case.
The President suggested that Ms. Lewinsky provide an
affidavit to avoid testifying in the Jones case, when he knew that the
affidavit would need to be false to accomplish its purpose.
The President knowingly and willfully allowed his attorney
to file Ms. Lewinsky's false affidavit and to use it for the purpose of
obstructing justice in the Jones case.
The President suggested to Ms. Lewinsky that she provide a
false account of how she received her job at the Pentagon.
The President attempted to influence the expected
testimony of his secretary, Ms. Currie, by providing her with a false
account of his meetings with Ms. Lewinsky.
The President provided several of his top aides with
elaborate lies about his relationship with Ms. Lewinsky, so that those
aides would convey the false information to the public and to the grand
jury. When he did this, he knew that those aides would likely be called
to testify, while he was declining several invitations to testify. By
this action, he obstructed and delayed the operation of the grand jury.
The President conspired with Ms. Lewinsky and Ms. Currie
to conceal evidence that he had been subpoenaed in the Jones case, and
thereby delayed and obstructed justice.
The President and his representatives orchestrated a
campaign to discredit Ms. Lewinsky in order to affect adversely her
credibility as a witness, and thereby attempted to obstruct justice
both in the Jones case and the grand jury.
The President lied repeatedly under oath in his
disposition in the Jones case, and thereby obstructed justice in that
case.
The President's lies and misleading statements under oath
at the grand jury were calculated to, and did obstruct, delay and
prevent the due administration of justice by that body.
The President employed the power of his office to procure
a job for Ms. Lewinsky after she signed the false affidavit by causing
his friend to exert extraordinary efforts for that purpose.
The foregoing are merely accusations of an ongoing pattern of
obstruction of justice, and witness tampering extending over a period
of several months, and having the effect of seriously compromising the
integrity of the entire judicial system.
The effect of the President's misconduct has been devastating in
several respects.
(1) He violated repeatedly his oath to ``preserve, protect and
defend the Constitution of the United States.''
(2) He ignored his constitutional duty as chief law enforcement
officer to ``take care that the laws be faithfully executed.''
(3) He deliberately and unlawfully obstructed Paula Jones's rights
as a citizen to due process and the equal protection of the laws,
though he had sworn to protect those rights.
(4) By his pattern of lies under oath, misleading statements and
deceit, he has seriously undermined the integrity and credibility of
the Office of President and thereby the honor and integrity of the
United States.
(5) His pattern of perjuries, obstruction of justice, and witness
tampering has affected the truth seeking process which is the
foundation of our legal system.
(6) By mounting an assault in the truth seeking process, he has
attacked the entire Judicial Branch of government.
The Articles of Impeachment that the House has preferred state
offenses that warrant, if proved, the conviction and removal from
office of President William Jefferson Clinton. The Articles charge that
the President has committed perjury before a federal grand jury and
that he obstructed justice in a federal civil rights action. The
Senate's own precedents establish beyond doubt that perjury warrants
conviction and removal. During the 1980s, the Senate convicted and
removed three federal judges for committing perjury. Obstruction of
justice undermines the judicial system in the same fashion that perjury
does, and it also warrants conviction and removal.
Under our Constitution, judges are impeached under the same
standard as Presidents--treason, bribery, or other high crimes and
misdemeanors. Thus, these judicial impeachments for perjury set the
standard here. Finally, the Senate's own precedents further establish
that the President's crimes need not arise directly out of his official
duties. Two of the three judges removed in the 1980s were removed for
perjury that had nothing to do with their official duties.
Introduction
This Brief is intended solely to advise the Senate generally of the
evidence that the Managers intend to produce, if permitted, and of the
applicable legal principles. It is not intended to discuss exhaustively
all of the evidence, nor does it necessarily include each and every
witness and document that the Managers would produce in the course of
the trial. This Brief, then, is merely an outline for the use of the
Senate in reviewing and assessing the evidence as it is set forth at
trial--it is not, and is not intended to be a substitute for a trial at
which all of the relevant facts will be developed.
H. Res. 611, 105th Cong. 2nd Sess. (1998)
The House Impeachment Resolution charges the President with high
crimes and misdemeanors in two Articles. Article One alleges that
President Clinton ``willfully corrupted and manipulated the judicial
process of the United States for his personal gain and exoneration,
impeding the administration of justice'' in that he willfully provided
perjurious, false and misleading testimony to a federal grand jury on
August 17, 1998. Article Two asserts that the President ``has
prevented, obstructed, and impeded the administration of justice and
engaged 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.'' Both Articles
are now before the Senate of the United States for trial as provided by
the Constitution of the United States.
The Office of President represents to the American people and to
the world, the strength, the philosophy and most of all, the honor and
integrity that makes us a great nation and an example for the world.
Because all eyes are focused upon that high office, the character and
credibility of any temporary occupant of the Oval Office is vital to
the domestic and foreign welfare of the citizens. Consequently, serious
breaches of integrity and duty of necessity adversely influence the
reputation of the United States.
This case is not about sex or private conduct. It is about multiple
obstructions of justice, perjury, false and misleading statements, and
witness tampering--all committed or orchestrated by the President of
the United States.
Before addressing the President's lies and obstruction, it is
important to place the events in the proper context. If this were only
about private sex we would not now be before the Senate. But the manner
in which the Lewinsky relationship arose and continued is important
because it is illustrative of the character of the President and the
decisions he made.
Background
Monica Lewinsky, a 22-year-old intern, (ML 8/6/98 GJ, p. 8; H.Doc.
105-311, p. 728) was working at the White House during the government
shutdown in 1995. (ML 8/6/98 GJ, p. 10; H.Doc. 105-311, p. 730) Prior
to their first intimate encounter, she had never even spoken with the
President. Sometime on November 15, 1995, Ms. Lewinsky and President
Clinton flirted with each other. (Id.) The President of the United
States of America then invited this unknown young intern into a private
area off the Oval Office where he kissed her. He then invited her back
later and when she returned, the two engaged in the first of many acts
of inappropriate contact. (ML 8/6/98 GJ, p. 12; H.Doc. 105-311, p. 732)
Thereafter, the two concocted a cover story. If Ms. Lewinsky were
seen, she was bringing papers to the President. That story was totally
false. (ML 8/6/98 GJ, p. 54; H.Doc. 105-311, p. 774; 8/26/98 Dep., p.
34; H.Doc. 105-311, p. 1314) The only papers she brought were personal
messages having nothing to do with her duties or those of the
President. (ML 8/6/98 GJ, pgs. 54-55; H.Doc. 105-311, pp. 774-775)
After Ms. Lewinsky moved from the White House to the Pentagon, her
frequent visits to the President were disguised as visits to Betty
Currie. (Id.) Those cover stories are important, because they play a
vital role in the later perjuries and obstructions.
Encounters
Over the term of their relationship the following significant
matters occurred:
1. Monica Lewinsky and the President were alone on at least twenty-
one occasions;
2. They had at least eleven personal sexual encounters, excluding
phone sex: Three in 1995, Five in 1996 and Three in 1997;
3. They had at least 55 telephone conversations, at least seventeen
of which involved phone sex;
4. The President gave Ms. Lewinsky twenty presents; and,
5. Ms. Lewinsky gave the President forty presents (O.I.C. Referral,
App., Tab E; H.Doc. 105-311, pgs. 104-111)
These are the essential facts which form the backdrop for all of
the events that followed.
The sexual details of the President's encounters with Ms. Lewinsky,
though relevant, need not be detailed either in this document or
through witness testimony. It is necessary, though, briefly to outline
that evidence, because it will demonstrate that the President
repeatedly lied about that sexual relationship in his deposition,
before the grand jury, and in his responses to the Judiciary
Committee's questions. He has consistently maintained that Ms. Lewinsky
merely performed acts on him, while he never touched her in a sexual
manner. This characterization not only directly contradicts Ms.
Lewinsky's testimony, but it also contradicts the sworn grand jury
testimony of three of her friends and the statements by two
professional counselors with whom she contemporaneously shared the
details of her relationship. (O.I.C. Referral, H.Doc. 105-310, pgs.
138-140)
While his treatment of Ms. Lewinsky was offensive, it is much more
offensive for the President to expect the Senate to believe that in
1995, 1996, and 1997, his intimate contact with Ms. Lewinsky was so
limited that it did not fall within his narrow interpretation of a
definition of ``sexual relations''. As later demonstrated, he did not
even conceive his interpretation until 1998, while preparing for his
grand jury appearance.
How To View the Evidence
We respectfully submit that the evidence and testimony must be
viewed as a whole; it cannot be compartmentalized. It is essential to
avoid considering each event in isolation, and then treating it
separately. Events and words that may seem innocent or even exculpatory
in a vacuum may well take on a sinister, or even criminal connotation
when observed in the context of the whole plot. For example, everyone
agrees that Monica Lewinsky testified ``No one ever told me to lie;
nobody ever promised me a job.'' (ML 8/20/98 GJ, p. 105; H.Doc. 105-
311, p. 1161)
When considered alone this would seem exculpatory. However, in the
context of the other evidence, another picture emerges. Of course no
one said. ``Now, Monica, you go in there and lie.'' They didn't have
to. Ms. Lewinsky knew what was expected of her. Similarly, nobody
promised her a job, but once she signed the false affidavit, she got
one.
The Issue
The ultimate issue is whether the President's course of conduct is
such as to affect adversely the Office of the President and also upon
the administration of justice, and whether he has acted in a manner
contrary to his trust as President and subversive to the Rule of Law
and Constitutional government.
The Beginning
The events that form the basis of these charges actually began in
late 1995. They reached a critical stage in the winter of 1997 and the
first month of 1998. The event culminated when the President of the
United States appeared before a federal grand jury, raised his right
hand to God and swore to tell the truth, the whole truth, and nothing
but the truth.
December 5-6, 1997
On Friday, December 5, 1997, Monica Lewinsky asked Betty Currie if
the President could see her the next day, Saturday, but Ms. Currie said
that the President was scheduled to meet with his lawyers all day. (ML
8/6/98 GJ, pgs. 107-108; H.Doc. 105-311, pgs. 827-828) Later that
Friday, Ms. Lewinsky spoke briefly to the President at a Christmas
party. (ML 7/31/98 Int., p. 1; H.Doc. 105-311, p. 1451; ML 8/6/98 GJ,
p. 108; H.Doc. 105-311, p. 828)
The Witness List Is Received
That evening, Paula Jones's attorneys faxed a list of potential
witnesses to the President's attorneys. (849-DC-00000128; 849-DC-
00000121-37; Referral, H.Doc. 105-311, p. 88) The list included Monica
Lewinsky. However, Ms. Lewinsky did not find out that her name was on
the list until the President told her ten days later, on December 17.
(ML 8/6/98 GJ, pgs. 121-123; H.Doc. 105-311, pgs. 841-843) That delay
is significant.
Ms. Lewinsky's First Visit
After her conversation with Ms. Currie and seeing the President at
the Christmas party, Ms. Lewinsky drafted a letter to the President
terminating their relationship. (ML-55-DC-0177); ML 7/31/98 Int., p. 2;
H.Doc. 105-311, p. 1452) The next morning, Saturday, December 6, Ms.
Lewinsky went to the White House to deliver the letter and some gifts
for the President to Ms. Currie. (ML 8/6/98 GJ, pgs. 108-109; H.Doc.
105-311, pgs. 828-829) When she arrived at the White House, Ms.
Lewinsky spoke to several Secret Service officers, and one of them told
her that the President was not with his lawyers, as she thought, but
rather, he was meeting with Eleanor Mondale. (ML 8/6/98 GJ, p. 111;
H.Doc. 105-311, p. 831; Mondale 7/16/98 Int., p. 1; H.Doc. 105-316,
pgs. 2907-2908; H.Doc. 105-311, p. 2654) Ms. Lewinsky called Ms. Currie
from a pay phone, angrily exchanged words with her, and went home. (ML
8/6/98 GJ, pgs. 112-13; H.Doc. 105-311, pgs. 832-833; Currie 1/27/98
GJ, p. 27; H.Doc. 105-316, p. 553) After that phone call, Ms. Currie
told the Secret Service watch commander that the President was so upset
about the disclosure of his meeting with Ms. Mondale that he wanted
somebody fired. (Purdie 7/23/98 GJ, pgs. 13, 18-19; H.Doc. 105-316,
pgs. 3356-3357).
The Telephone Conversations
At 12:05 p.m., records demonstrate that Ms. Currie paged Bruce
Lindsey with the message: ``Call Betty ASAP.'' (964-DC-00000862; H.Doc.
105-311, p. 2722) Around that same time, according to Ms. Lewinsky,
while she was back at her apartment, Ms. Lewinsky and the President
spoke by phone. The President was very angry; he told Ms. Lewinsky that
no one had every treated him as poorly as she had. (ML 8/6/98 GJ, pgs.
113-14; H.Doc. 105-311, pgs. 833-834) The President acknowledged to the
grand jury that he was upset about Ms. Lewinsky's behavior and
considered it inappropriate. (WJC 8/17/98 GJ, p. 85; H.Doc. 105-311, p.
537). Nevertheless, in a sudden change of mood, he invited her to visit
him at the White House that afternoon. (ML 8/6/98 GJ, p. 114; H.Doc.
105-311, p. 834)
Ms. Lewinsky's Second Visit
Monica Lewinsky arrived at the White House for the second time that
day and was cleared to enter at 12:52 p.m. (WAVES: 827-DC-00000018)
Although, in Ms. Lewinsky's words, the President was ``very angry''
with her during their recent telephone conversation, he was ``sweet''
and ``very affectionate'' during this visit. (ML 8/6/98 GJ, pgs. 113-
15; H.Doc. 105-311, pgs. 833-835). He also told her that he would talk
to Vernon Jordan about her job situation. (ML 8/6/98 GJ, pgs. 115-16;
H.Doc. 105-311, pgs. 835-836)
The Discussions With the Secret Service
The President also suddenly changed his attitude toward the Secret
Service. Ms. Currie informed some officers that if they kept quiet
about the Lewinsky incident, there would be no disciplinary action.
(Williams 7/23/98 GJ, pgs. 25, 27-28; H.Doc. 105-316, p. 4539; Chinery
7/23/98 GJ, p. 22-23; H.Doc. 105-316, p. 456). According to the Secret
Service watch commander, Captain Jeffrey Purdie, the President
personally told him, ``I hope you use your discretion'' or ``I hope I
can count on your discretion.'' (Purdie 7/23/98 GJ, p. 32; H.Doc. 105-
316, p. 3360; Purdie 7/17/98 GJ, p. 3; H.Doc. 105-316, p. 3353) Deputy
Chief Charles O'Malley, Captain Purdie's supervisor, testified that he
knew of no other time in his fourteen years of service at the White
House where the President raised a performance issue with a member of
the Secret Service uniformed division. (O'Malley 9/8/98 Dep., pgs. 40-
41; H.Doc. 105-316, pgs. 3168-3171) After his conversation with the
President, Captain Purdie told a number of officers that they should
not discuss the Lewinsky incident. (Porter 8/13/98 GJ, p. 12; H.Doc.
105-316, p. 3343; Niedzwiecki 7/30/98 GJ, pgs. 30-31, H.Doc. 105-316,
p. 3114)
When the President was before the grand jury and questioned about
his statements to the Secret Service regarding this incident, the
President testified, ``I don't remember what I said and I don't
remember to whom I said it.'' (WJC 8/17/98 GJ, p. 86; H.Doc. 105-311,
p. 534) When confronted with Captain Purdie's testimony, the President
testified, ``I don't remember anything I said to him in that regard. I
have no recollection of that whatever.'' (WJC 8/17/98 GJ, p. 91; H.Doc.
105-311, p. 543)
The President's Knowledge of the Witness List
President Clinton testified before the grand jury that he learned
that Ms. Lewinsky was on the Jones witness list that evening, Saturday,
December 6, during a meeting with his lawyers. (WJC 8/17/98 GJ, p. 83-
84; H.Doc. 105-311, p. 535-536) He stood by this answer in response to
Request Number 16 submitted by the Judiciary Committee. (Exhibit 18).
The meeting occurred around 5 p.m., after Ms. Lewinsky had left the
White House. (WAVES: 1407-DC-00000005; Lindsey 3/12/98 GJ, pgs. 64-66;
H.Doc. 105-316, pgs. 2418-19) According to Bruce Lindsey, at the
meeting, Bob Bennett had a copy of the Jones witness list faxed to Mr.
Bennett the previous night. (Lindsey 3/12/98 GJ, pgs. 65-67; H.Doc.
105-316, p. 2419) (Exhibit 15)
However, during his deposition, the President testified that he had
heard about the witness list before he saw it. (WJC 1/17/98 Dep., p.
70) In other words, if the President testified truthfully in his
deposition, then he knew about the witness list before the 5 p.m.
meeting. It is valid to infer that hearing Ms. Lewinsky's name on a
witness list prompted the President's sudden and otherwise unexplained
change from ``very angry'' to ``very affectionate'' that Saturday
afternoon. It is also reasonable to infer that it prompted him to give
the unique instruction to a Secret Service watch commander to use
``discretion'' regarding Ms. Lewinsky's visit to the White House, which
the watch commander interpreted as an instruction to refrain from
discussing the incident. (Purdie 7/17/98 GJ, pgs. 20-21; H.Doc. 105-
316, pgs. 3351-3352; Purdie 7/23/98 GJ, pgs. 32-33; H.Doc. 105-315,
pgs. 3360-3361)
The Job Search for Ms. Lewinsky
Monica Lewinsky had been looking for a good paying and high profile
job in New York since the previous July. She was not having much
success despite the President's promise to help. In early November,
Betty Currie arranged a meeting with Vernon Jordan who was supposed to
help. (BC 5/6/98 GJ, p. 176; H.Doc. 105-316, p. 592)
On November 5, Ms. Lewinsky met for twenty minutes with Mr. Jordan
(ML 8/6/98 GJ, pg. 104; H.Doc. 105-311, p. 824) No action followed; no
job interviews were arranged and there were no further contacts with
Mr. Jordan. It was obvious that he made no effort to find a job for Ms.
Lewinsky. Indeed, it was so unimportant to him that he ``had no
recollection of an early November meeting'' (VJ 3/3/98 GJ, pg. 50;
H.Doc. 105-316, p. 1799) and that finding a job for Ms. Lewinsky was
not a priority (VJ 5/5/98 GJ, p. 76; H.Doc. 105-316, p. 1804) (Chart R)
Nothing happened throughout the month of November, because Mr. Jordan
was either gone or would not return Monica's calls. (ML 8/6/98 GJ, p.
105-106; H.Doc. 105-311, pgs. 825-826)
During the December 6 meeting with the President, she mentioned
that she had not been able to get in touch with Mr. Jordan and that it
did not seem he had done anything to help her. The President responded
by stating, ``Oh, I'll talk to him. I'll get on it,'' or something to
that effect. (ML 8/6/98 GJ, pgs. 115-116; H.Doc. 105-311, p. 836) There
was obviously still no urgency to help Ms. Lewinsky. Mr. Jordan met the
President the next day, December 7, but the meeting was unrelated to
Ms. Lewinsky. (VJ 5/5/98 GJ. pgs. 83, 116; H.Doc. 105-316, pgs. 1805,
1810)
The December 11, 1997 Activity
The first activity calculated to help Ms. Lewinsky actually procure
employment took place on December 11. Mr. Jordan met with Ms. Lewinsky
and gave her a list of contact names. The two also discussed the
President. (ML 8/6/98 GJ, pgs. 119, 120; H.Doc. 105-311, pgs. 839-840)
That meeting Mr. Jordan remembered. (VJ 3/5/98 GJ, p. 41; H.Doc. 105-
316, p. 1798) Vernon Jordan immediately placed calls to two prospective
employers. (VJ 3/3/98 GJ, pgs. 54, 62-63; H.Doc. 105-316, pgs. 1800-
1802) Later in the afternoon, he even called the President to give him
a report on his job search efforts. (VJ 3/3/98 GJ, pgs. 64-66; H.Doc.
105-316, p. 1802) Clearly, Mr. Jordan and the President were now very
interested in helping Monica find a good job in New York. (VJ 5/5/98
GJ, p. 95; H.Doc. 105-316, p. 1807)
Significance of December 11, 1997
This sudden interest was inspired by a court order entered on
December 11, 1997. On that date, Judge Susan Webber Wright ordered that
Paula Jones was entitled to information regarding any state or federal
employee with whom the President had sexual relations, proposed sexual
relations, or sought to have sexual relations.
The President knew that it would be politically and legally
expedient to maintain an amicable relationship with Monica Lewinsky.
And the President knew that that relationship would be fostered by
finding Ms. Lewinsky a job. This was accomplished through enlisting the
help of Vernon Jordan.
December 17, 1997, Ms. Lewinsky Learns of Witness List
On December 17, 1997, between 2:00 and 2:30 in the morning, Monica
Lewinsky's phone rang unexpectedly. It was the President of the United
States. The President said that he wanted to tell Ms. Lewinsky two
things: one was that Betty Currie's brother had been killed in a car
accident; secondly, the President said that he ``had some more bad
news,'' that he had seen the witness list for the Paula Jones case and
her name was on it. (ML 8/6/98 GJ, p. 123; H.Doc. 105-311, p. 843) The
President told Ms. Lewinsky that seeing her name on the list ``broke
his heart.'' He then told her that ``if [she] were to be subpoenaed,
[she] should contact Betty and let Betty know that [she] had received
the subpoena.'' (Id.) Ms. Lewinsky asked what she should do if
subpoenaed. The President responded: ``Well, maybe you can sign an
affidavit.'' (Id.) Both parties knew that the Affidavit would need to
be false and misleading to accomplish the desired result.
The President's ``Suggestion''
Then, the President had a very pointed suggestion for Monica
Lewinsky, a suggestion that left little room for compromise. He did not
specifically tell her to lie. What he did say is ``you know, you can
always say you were coming to see Betty or that you were bringing me
letters.'' (ML 8/6/98 GJ, p. 123; H.Doc. 105-311, p. 843)
In order to understand the significance of this statement, it is
necessary to recall the ``cover stories'' that the President and Ms.
Lewinsky had previously structured in order to deceive those who
protected and worked with the President.
Ms. Lewinsky said she would carry papers when she visited the
President. When she saw him, she would say: ``Oh, gee, `here are your
letters,' wink, wink, wink and he would answer, `Okay that's good.' ''
(ML 8/6/98 GJ, p. 54; H.Doc. 105-311, p. 774) After Ms. Lewinsky left
White House employment, she would return to the Oval Office under the
guise of visiting Betty Currie, not the President. (ML 8/6/98 GJ, p.
55; H.Doc. 105-311, p. 775)
Moreover, Ms. Lewinsky promised the President that she would always
deny the sexual relationship and always protect him. The President
would respond ``that's good'' or similar language of encouragement. (ML
8/20/98 GJ, p. 22; H.Doc. 105-311, p. 1078)
So, when the President called Ms. Lewinsky at 2:00 a.m. on December
17 to tell her she was on the witness list, he made sure to remind her
of those prior ``cover stories.'' Ms. Lewinsky testified that when the
President brought up the misleading stories, she understood that the
two would continue their pre-existing pattern of deception.
The President's Intention
It became clear that the President had no intention of making his
sexual relationship with Monica Lewinsky a public affair. And he would
use lies, deceit, and deception to ensure that the truth would not be
known.
It is interesting to note that when the grand jury asked the
President whether he remembered calling Monica Lewinsky at 2:00 a.m.,
he responded: ``No sir, I don't. But it would . . . it is quite
possible that that happened. . . .'' (WJC 8/17/98 GJ, p. 115; H.Doc.
105-311, p. 567)
And when he was asked whether he encouraged Monica Lewinsky to
continue the cover stories of ``coming to see Betty'' or ``bringing the
letters,'' he answered: ``I don't remember exactly what I told her that
night.'' (WJC 8/17/98 GJ, p. 117; H.Doc. 105-311, p. 565)
Six days earlier, he had become aware that Paula Jones' lawyers
were now able to inquire about other women. Ms. Lewinsky could file a
false affidavit, but it might not work. It was absolutely essential
that both parties told the same story. He knew that he would lie if
asked about Ms. Lewinsky, and he wanted to make certain that she would
lie also. That is why the President of the United States called a
twenty-four year old woman at 2:00 in the morning.
The Evidence Mounts
But the President had an additional problem. It was not enough that
he (and Ms. Lewinsky) simply deny the relationship. The evidence was
beginning to accumulate. Because of the emerging evidence, the
President found it necessary to reevaluate his defense. By this time,
the evidence was establishing, through records and eyewitness accounts,
that the President and Monica Lewinsky were spending a significant
amount of time together in the Oval Office complex. It was no longer
expedient simply to refer to Ms. Lewinsky as a ``groupie'',
``stalker'', ``clutch'', or ``home wrecker'' as the White House first
attempted to do. The unassailable facts were forcing the President to
acknowledge some type of relationship. But at this point, he still had
the opportunity to establish a non-sexual explanation for their
meetings, since his DNA had not yet been identified on Monica
Lewinsky's blue dress.
Need for the Cover Story
Therefore, the President needed Monica Lewinsky to go along with
the cover story in order to provide an innocent, intimate-free
explanation for their frequent meetings. And that innocent explanation
came in the form of ``document deliveries'' and ``friendly chats with
Betty Currie.''
Significantly, when the President was deposed on January 17, 1998,
he used the exact same cover stories that had been utilized by Ms.
Lewinsky. In doing so, he stayed consistent with any future Lewinsky
testimony while still maintaining his defense in the Jones lawsuit.
In the President's deposition, he was asked whether he was ever
alone with Monica Lewinsky. He responded: ``I don't recall . . . She--
it seems to me she brought things to me once or twice on the weekends.
In that case, whatever time she would be in there, drop it off,
exchange a few words and go, she was there.'' (WJC 1/17/98 Dep., p. 52-
53)
Additionally, when questions were posed regarding Ms. Lewinsky's
frequent visits to the Oval Office, the President did not hesitate to
mention Betty Currie in his answers, for example:
And my recollection is that on a couple of occasions after [the
pizza party meeting], she was there [in the oval office] but my
secretary, Betty Currie, was there with her. (WJC 1/17/98 Dep., p. 58)
Q. When was the last time you spoke with Monica Lewinsky?
A. 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. (WJC 1/17/
98 Dep., p. 68)
December 19, 1997, Ms. Lewinsky Is Subpoenaed
On December 19, 1997, Ms. Lewinsky was subpoenaed to testify in a
deposition scheduled for January 23, 1998 in the Jones case. (ML 8/6/98
GJ, p. 128; H.Doc. 105-311, p. 848) (Charts F and G) Extremely
distraught, she immediately called the President's closest friend,
Vernon Jordan. As noted Ms. Lewinsky testified that the President
previously told her to call Betty Currie if she was subpoenaed. She
called Mr. Jordan instead because Ms. Currie's brother recently died
and she did not want to bother her. (ML 8/6/98 GJ, pgs. 128-129; H.Doc.
105-311, pgs. 848, 849)
Vernon Jordan's Role
Mr. Jordan invited Ms. Lewinsky to his office and she arrived
shortly before 5 p.m., still extremely distraught. Around this time,
Mr. Jordan called the President and told him Ms. Lewinsky had been
subpoenaed. (VJ 5/5/98 GJ, p. 145; H.Doc. 105-316, p. 1815) (Exhibit 1)
During the meeting with Ms. Lewinsky, which Mr. Jordan characterized as
``disturbing'' (VJ 3/3/98 GJ, p. 100; H.Doc. 105-316, p. 1716), she
talked about her infatuation with the President. (VJ 3/3/98 GJ, p. 150;
H.Doc. 105-316, p. 1724) Mr. Jordan decided that he would call a lawyer
for her. (VJ 3/3/98 GJ, p. 161; H.Doc. 105-316, p. 1726)
Mr. Jordan Informs the President
That evening, Mr. Jordan met with the President and relayed his
conversation with Ms. Lewinsky. The details are extremely important
because the President, in his deposition, did not recall that meeting.
Mr. Jordan told the President again that Ms. Lewinsky had been
subpoenaed, that he was concerned about her fascination with the
President, and that Ms. Lewinsky had asked Mr. Jordan if he thought the
President would leave the First Lady. He also asked the President if he
had sexual relations with Ms. Lewinsky. (VJ 3/3/98 GJ, p. 169; H.Doc
105-3316, p. 1727) The President was asked at his deposition:
Q. Did anyone other than your attorneys ever tell you that Monica
Lewinsky had been served with a subpoena in this case?
A. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the possibility
that she might be asked to testify in this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she was, I
think maybe that's the first person told me she was. I want to be as
accurate as I can.
(WJC 1/17/98 Dep., pgs. 68-69)
In the grand jury, the President first repeated his denial that Mr.
Jordan told him Ms. Lewinsky had been subpoenaed. (WJC 8/17/98 GJ, p.
39; H.Doc. 105-311, p. 491) Then, when given more specific facts, he
admitted that he ``knows now'' that he spoke with Mr. Jordan about the
subpoena on the night of December 19, but his ``memory is not clear. .
. .'' (WJC 8/17/98 GJ, pgs. 41-42; H.Doc. 105-311, p. 493-494) In an
attempt to explain away his false deposition testimony, the President
testified in the grand jury that he was trying to remember who told him
first. (WJC 8/17/98 GJ, p. 41; H.Doc. 105-311, pgs. 492-493) But that
was not the question. So his answer was false and misleading. When one
considers the nature of the conversation between the President and Mr.
Jordan, the suggestion that it would be forgotten defies common sense.
December 28, 1997
December 28, 1997 is a crucial date, because the evidence shows
that the President made false and misleading statements to the federal
court, the federal grand jury and the Congress of the United States
about the events on that date. (Chart J) It is also a date on which he
obstructed justice.
The President's Account
The President testified that it was ``possible'' that he invited
Ms. Lewinsky to the White House for this visit. (WJC 8/17/98 GJ, p. 33;
H.Doc. 105-311, p. 485) He admitted that he ``probably'' gave Ms.
Lewinsky the most gifts he had ever given her on that date, (WJC 8/17/
98 GJ, p. 35; H.Doc. 105-311, p. 487) and that he had given her gifts
on other occasions. (WJC 8/6/98 GJ, p. 35) (Chart D) Among the many
gifts the President gave Ms. Lewinsky on December 28 was a bear that he
said was a symbol of strength. (ML 8/6/98 GJ, p. 176; H.Doc. 105-311,
p. 896) Yet only two-and-a-half weeks later, the President forgot that
he had given any gifts to Ms. Lewinsky.
As an attorney, the President knew that the law will not tolerate
someone who says, ``I don't recall'' when that answer is unreasonable
under the circumstances. He also knew that, under those circumstances,
his answer in the deposition could not be believed. When asked in the
grand jury why he was unable to remember, even though he had given Ms.
Lewinsky so many gifts only two-and-a-half weeks before the deposition,
the President put forth an obviously contrived explanation.
``I think what I meant there was I don't recall what they were, not
that I don't recall whether I had given them.''
(WJC 8/17/98 GJ, p. 51; H.Doc. 105-311, p. 503)
Response to Committee Requests
The President adopted that same answer in Response No. 42 to the
House Judiciary Committee's Requests For Admission. (Exhibit 18) He was
not asked in the deposition to identify the gifts. He was simply asked,
``Have you ever'' given gifts to Ms. Lewinsky. The law does not allow a
witness to insert unstated premises or mental reservations into the
question to make his answer technically true, if factually false. The
essence of lying is in deception, not in words.
The President's answer was false. The evidence also proves that his
explanation to the grand jury and to the Committee is also false. The
President would have us believe that he was able to analyze questions
as they were being asked, and pick up such things as verb tense in an
attempt to make his statements at least literally true. But when he was
asked a simple, straightforward question, he did not understand it.
Neither his answer in the deposition nor his attempted explanation is
reasonable or true.
Testimony Concerning Gifts
The President was asked in the deposition if Monica Lewinsky ever
gave him gifts. He responded, ``once or twice.'' (WJC 1/17/98 Dep., p.
77) This is also false testimony calculated to obstruct justice. He
answered this question in his Response to the House Judiciary Committee
by saying that he receives numerous gifts, and he did not focus on the
precise number. (Exhibit 18) The law again does not support the
President's position. An answer that baldly understates a numerical
fact in response to a specific quantitative inquiry can be deemed
technically true but actually false. For example, a witness is
testifying falsely if he says he went to the store five times when in
fact he had gone fifty, even though technically he had also gone five
times. So too, when the President answered once or twice in the face of
evidence that Ms. Lewinsky was frequently bringing gifts, he was lying.
(Chart C)
Concealment of Gifts
On December 28, one of the most blatant efforts to obstruct justice
and conceal evidence occurred. Ms. Lewinsky testified that she
discussed with the President the fact that she had been subpoenaed and
that the subpoena called for her to produce gifts. She recalled telling
the President that the subpoena requested a hat pin, and that caused
her concern. (ML 8/6/98 GJ, pgs. 151-152; H.Doc. 105-311, pgs. 871-872)
The President told her that it ``bothered'' him, too. (ML 8/20/98 GJ,
p. 66; H.Doc. 105-311, p. 1122) Ms. Lewinsky then suggested that she
take the gifts somewhere, or give them to someone, maybe to Betty. The
President answered: ``I don't know'' or ``Let me think about that.''
(ML 8/6/98 GJ, pgs. 152-153; H.Doc. 105-311, pgs. 872-873) (Chart L)
Later that day, Ms. Lewinsky got a call from Ms. Currie, who said: ``I
understand you have something to give me'' or ``the President said you
have something to give me.'' (ML 8/6/98 GJ, pgs. 154-155; H.Doc. 105-
311, pgs. 874-875) Ms. Currie has a fuzzy memory about this incident,
but says that ``the best she can remember,'' Ms. Lewinsky called her.
(Currie 5/6/98 GJ, p. 105; H.Doc. 105-316, p. 581)
The Cell Phone Record
There is key evidence that Ms. Currie's fuzzy recollection is
wrong. Ms. Lewinsky said that she thought Ms. Currie called from her
cell phone. (ML 8/6/98 GJ, pgs. 154-155) (Chart K, Exhibit 2) Ms.
Currie's cell phone record corroborates Ms. Lewinsky and proves
conclusively that Ms. Currie called Monica from her cell phone several
hours after she had left the White House. Moreover, Ms. Currie herself
later testified that Ms. Lewinsky's memory may be better than hers on
this point. (BC 5/6/98 GJ, p. 126; H.Doc. 105-316, p. 584) The facts
prove that the President directed Ms. Currie to pick up the gifts.
Ms. Currie's Later Actions
That conclusion is buttressed by Ms. Currie's actions. If Ms.
Lewinsky had placed the call requesting a gift exchange, Ms. Currie
would logically ask the reason for such a transfer. Ms. Lewinsky was
giving her a box of gifts from the President yet she did not tell the
President of this strange request. She simply took the gifts and placed
them under her bed without asking a single question. (BC 1/27/98 GJ,
pgs. 57-58; H.Doc. 105-316, p. 557; BC 5/6/98 GJ, pgs. 105-108, 114;
H.Doc. 105-316, pgs. 581-582)
The President stated in his Response to questions No. 24 and 25
from the House Committee that he was not concerned about the gifts.
(Exhibit 18) In fact, he said that he recalled telling Monica that if
the Jones lawyers request gifts, she should turn them over. The
President testified that he is ``not sure'' if he knew the subpoena
asked for gifts. (WJC 8/17/98 GJ, pgs. 42-43; H.Doc. 105-311, pgs. 494-
495) Would Monica Lewinsky and the President discuss turning over gifts
to the Jones lawyers if Ms. Lewinsky had not told him that the subpoena
asked for gifts? On the other hand, if he knew the subpoena requested
gifts, why would he give Ms. Lewinsky more gifts on December 28? Ms.
Lewinsky's testimony reveals the answer. She said that she never
questioned ``that we were ever going to do anything but keep this
private'' and that meant to take ``whatever appropriate steps needed to
be taken'' to keep it quiet. (ML 8/6/98 GJ, pgs. 166; H.Doc. 105-311,
p. 886) The 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.
The President's Deposition Testimony
Furthermore, the President, at various times in his deposition,
seriously misrepresented the nature of his meeting with Ms. Lewinsky on
December 28 in order to obstruct the administration of justice. First,
he was asked: ``Did she tell you she had been served with a subpoena in
this case?'' The President answered flatly: ``No. I don't know if she
had been.'' (WJC 1/17/98 Dep., p. 68)
He was also asked if he ``ever talked to Monica Lewinsky about the
possibility of her testifying.'' ``I'm not sure . . .,'' he said. he
then added that he may have joked to her that the Jones lawyers might
subpoena every woman he has ever spoken to, and that ``I don't think we
ever had more of a conversation than that about it. . . .'' (WJC 1/17/
98 Dep., p. 70) Not only does Monica Lewinsky directly contradict this
testimony, but the President also directly contradicted himself before
the grand jury. Speaking of his December 28, 1997 meeting, he said that
he ``knew by then, of course, that she had gotten a subpoena'' and that
they had a ``conversation about the possibility of her testifying.''
(WJC 8/17/98 Dep., pgs. 35-36) Remember, he had this conversation about
her testimony only two-and-a-half weeks before his deposition. Again,
his version is not reasonable.
January 5-9, 1998, Ms. Lewinsky Signs the Affidavit and Gets a Job
The President knew that Monica Lewinsky was going to execute a
false Affidavit. He was so certain of the content that when she asked
if he wanted to see it, he told her no, that he had seen fifteen of
them. (ML 8/2/98 Int., p. 3; H.Doc. 105-311, p. 1489) He got his
information from discussions with Ms. Lewinsky and Vernon Jordan
generally about the content of the Affidavit. Moreover, the President
had suggested the Affidavit himself and he trusted Mr. Jordan to be
certain the mission was accomplished.
Additional Presidential Advice
In the afternoon of January 5, 1998, Ms. Lewinsky met with her
lawyer, Mr. Carter, to discuss the Affidavit. (ML 8/6/98 GJ, p. 192;
H.Doc. 105-311, p. 912) Her lawyer asked her some hard questions about
how she got her job. (ML 8/6/98 GJ, p. 195; H.Doc. 105-311, p. 915)
After the meeting, she called Betty Currie and said that she wanted to
speak to the President before she signed anything. (ML 8/6/98 GJ, p.
195; H.Doc. 105-311, p. 915) Ms. Lewinsky and the President discussed
the issue of how she would answer under oath if asked about how she got
her job at the Pentagon. (ML 8/6/98 GJ, p. 197; H.Doc. 105-311, p. 917)
The President told her: ``Well, you could always say that the people in
Legislative Affairs got it for you or helped you get it.'' (ML 8/6/98
GJ, p. 197; H.Doc. 105-311, p. 917) That, too, is false and misleading.
Vernon Jordan's New Role
The President was also kept advised as to the contents of the
Affidavit by Vernon Jordan. (VJ 5/5/98 GJ, p. 224; H.Doc. 105-316, p.
1828) On January 6, 1998, Ms. Lewinsky picked up a draft of the
Affidavit from Mr. Carter's office. (ML 8/6/98 GJ, p. 199; H.Doc. 105-
311, p. 919) She delivered a copy to Mr. Jordan's office. (ML 8/6/98
GJ, p. 200; H.Doc. 105-311, p. 920) because she wanted Mr. Jordan to
look at the Affidavit in the belief that if Vernon Jordan gave his
imprimatur, the President would also approve. (ML 8/6/98 GJ, pgs. 194-
195; H.Doc. 105-311, pgs. 914, 915) (Chart M) Ms. Lewinsky and Mr.
Jordan conferred about the contents and agreed to delete a paragraph
inserted by Mr. Carter which might open a line of questions concerning
whether she had been alone with the President. (ML 8/6/98 GJ, p. 200;
H.Doc. 105-311, p. 920) (Exhibit 3) Mr. Jordan maintained that he had
nothing to do with the details of the Affidavit. (VJ 3/5/98 GJ, p. 12;
H.Doc. 105-316, p. 1735) He admits, though, that he spoke with the
President after conferring with Ms. Lewinsky about the changes made to
her Affidavit. (VJ 5/5/98 GJ, p. 218; H.Doc. 105-316, p. 1827)
Ms. Lewinsky Signs the False Affidavit
The next day, January 7, Monica Lewinsky signed the false
Affidavit. (ML 8/6/98 GJ, pgs. 204-205; H.Doc. 105-311, pgs. 924-925)
(Chart N; Exhibit 12) She showed the executed copy to Mr. Jordan that
same day. (VJ 5/5/98 GJ, p. 222; H.Doc. 105-316, p. 1828) (Exhibit 4)
Mr. Jordan, in turn, notified the President that she signed an
affidavit denying a sexual relationship. (VJ 3/5/98 GJ, p. 26; H.Doc.
105-316, p. 1739)
Ms. Lewinsky Gets the Job
On January 8, 1998, Mr. Jordan arranged an interview for Ms.
Lewinsky with MacAndrews and Forbes in New York. (ML 8/6/98 GJ, p. 206;
H.Doc. 105-311, p. 926) The interview went poorly, so Ms. Lewinsky
called Mr. Jordan and informed him. (ML 8/6/98 GJ, p. 206; H.Doc. 105-
311, p. 926) Mr. Jordan, who had done nothing to assist Ms. Lewinsky's
job search from early November to mid December, then called MacAndrews
and Forbes CEO, Ron Perelman, to ``make things happen, if they could
happen.'' (VJ 5/5/98 GJ, p. 231; H.Doc. 105-316, p. 1829) Mr. Jordan
called Ms. Lewinsky back and told her not to worry. (ML 8/6/98 GJ, pgs.
208-209; H.Doc. 105-311, pgs. 928-929) That evening, Ms. Lewinsky was
called by MacAndrews and Forbes and told that she would be given more
interviews the next morning. (ML 8/6/98 GJ, p. 209; H.Doc. 105-311, p.
929)
After a series of interviews with MacAndrews and Forbes personnel,
she was informally offered a job. (ML 8/6/98 GJ, p. 210; H.Doc. 105-
311, p. 930) When Ms. Lewinsky called Mr. Jordan to tell him, he passed
the good news on to Betty Currie stating, ``Mission Accomplished.'' (VJ
5/28/98 GJ, p. 39; H.Doc. 105-316, p. 1898). Later, Mr. Jordan called
the President and told him personally. (VJ 5/28/98 GJ, p. 41; H.Doc.
105-316, p. 1899) (Chart P)
The Reason for Mr. Jordan's Unique Behavior
After Ms. Lewinsky had spent months looking for a job--since July
according to the President's lawyers--Vernon Jordan made the critical
call to a CEO the day after the false Affidavit was signed. Mr.
Perelman testified that Mr. Jordan had never called him before about a
job recommendation. (Perelman 4/23/98 Dep., p. 11; H.Doc. 105-316, p.
3281) Mr. Jordan, on the other hand, said that he called Mr. Perelman
to recommend for hiring: (1) former Mayor Dinkins of New York; (2) a
very talented attorney from Akin Gump; (3) a Harvard business school
graduate; and (4) Monica Lewinsky. (VJ 3/5/98 GJ, p. 58-59; H.Doc. 105-
316, p. 1747) Even if Mr. Perelman's testimony is mistaken, Ms.
Lewinsky's qualifications do not compare to those of the individuals
previously recommended by Mr. Jordan.
Vernon Jordan was well aware that people with whom Ms. Lewinsky
worked at the White House did not like her (VJ 3/3/98 GJ, pgs. 43, 59)
and that she did not like her Pentagon job. (VJ 3/3/98 GJ, pgs. 43-44;
H.Doc. 105-316, pgs. 1706, 1707) Mr. Jordan was asked if at ``any point
during this process you wondered about her qualifications for
employment?'' He answered: ``No, because that was not my judgment to
make.'' (VJ 3/3/98 GJ, p. 44; H.Doc. 105-316, p. 1707) Yet, when he
called Mr. Perelman the day after she signed the Affidavit, he referred
to Ms. Lewinsky as a bright young girl who is ``terrific.'' (Perelman
4/23/98 Dep., p. 10; H.Doc. 105-316, p. 3281) Mr. Jordan testified that
she had been pressing him for a job and voicing unrealistic
expectations concerning positions and salary. (VJ 3/5/98 GJ, pgs. 37-
38; H.Doc. 105-316, p. 1742) Moreover, she narrated a disturbing story
about the President leaving the First Lady, and how the President was
not spending enough time with her. Yet, none of that gave Mr. Jordan
pause in making the recommendation, especially after Monica was
subpoenaed. (VJ 3/3/98 GJ, pgs. 156-157; H.Doc. 105-316, p. 1725)
The Importance of the False Affidavit
Monica Lewinsky's false Affidavit enabled the President, through
his attorneys, to assert at his January 17, 1998 deposition ``. . .
there is absolutely no sex of any kind in any manner, shape or form
with President Clinton. . . .'' (WJC, 1/17/98 Dep., p. 54) When
questioned by his own attorney in the deposition, the President stated
specifically that paragraph 8 of Ms. Lewinsky's Affidavit was
``absolutely true.'' (WJC, 1/17/98 Dep., p. 204) The President later
affirmed the truth of that statement when testifying before the grand
jury. (WJC, 8/17/98 GJ, p. 20-21; H.Doc. 105-311, pg. 473) Paragraph 8
of Ms. Lewinsky's Affidavit states:
``I have never had a sexual relationship with the President, he did
not propose that we have a sexual relationship, he did not offer me
employment or other benefits in exchange for a sexual relationship, he
did not deny me employment or other benefits for rejecting a sexual
relationship.''
Significantly, Ms. Lewinsky reviewed the draft Affidavit on January
6, and signed it on January 7 after deleting a reference to being alone
with the President. She showed a copy of the signed Affidavit to Vernon
Jordan, who called the President and told him that she had signed it.
(VJ, 3/5/98 GJ, pgs. 24-26; H.Doc. 105-316, pgs. 1728, 1739; VJ, 5/5/98
GJ, p. 222; H.Doc. 105-316, p. 1828)
The Rush To File the Affidavit
For the affidavit to work for the President in precluding questions
by the Jones attorneys concerning Ms. Lewinsky, it had to be filed with
the Court and provided to the President's attorneys in time for his
deposition on January 17. On January 14, the President's lawyers called
Ms. Lewinsky's lawyer and left a message, presumably to find out if he
had filed the Affidavit with the Court. (Carrier 6/18/98 GJ, p. 123;
H.Doc. 105-316, p. 423) (Chart O) On January 15, the President's
attorneys called her attorney twice. When they finally reached him,
they requested a copy of the Affidavit and asked him, ``Are we still on
time?'' (Carter 6/18/98 GJ, p. 123; H.Doc. 105-216, p. 423) Ms.
Lewinsky's lawyer faxed a copy on the 15th. (Carter 6/18/98 GJ, p. 123,
H.Doc. 105-316, p. 423) The President's counsel was aware of its
contents and used it powerfully in the deposition.
Ms. Lewinsky's lawyer called the court in Arkansas twice on January
15 to ensure that the Affidavit could be filed on Saturday, January 17.
(Carter 6/18/98 GJ, pgs. 124-125; H.Doc. 105-316, pgs. 423-424)
(Exhibit 5) He finished the Motion to Quash Ms. Lewinsky's deposition
in the early morning hours of January 16 and mailed it to the Court
with the false Affidavit attached, for Saturday delivery. (Carter 6/18/
98 GJ, p. 134; H.Doc. 105-316, p. 426) The President's lawyers left him
another message on January 16, saying, ``You'll know what it's about.''
(Carter 6/18/98 GJ, p. 135; H.Doc. 105-316, p. 426) Obviously, the
President needed that Affidavit to be filed with the Court to support
his plans to mislead Ms. Jones' attorneys in the deposition, and
thereby obstruct justice.
The Newsweek Inquiry
On January 15, Michael Isikoff of Newsweek called Betty Currie and
asked her about Ms. Lewinsky sending gifts to her by courier. (BC 5/6/
98 GJ, p. 123; H.Doc. 105-316, p. 584; ML 8/6/98 GJ, p. 228; H.Doc.
105-311, p. 948) Ms. Currie then called Ms. Lewinsky and told her about
it. (ML 8/6/98 GJ, p. 228-229; H.Doc. 105-311, pgs. 948-949) The
President was out of town, so later, Betty Currie called Ms. Lewinsky
back, and asked for a ride to Mr. Jordan's office. (ML 8/6/98 GJ, p.
229; H.Doc. 105-311, p. 949; Currie 5/6/98 GJ, p. 130-131; H.Doc. 105-
316, p. 585) Mr. Jordan advised her to speak with Bruce Lindsey and
Mike McCurry. (VJ 3/5/98 GJ, p. 71) Ms. Currie testified that she spoke
immediately to Mr. Lindsey about Isikoff's call. (BC 5/6/98 GJ, p. 127;
H.Doc. 105-316, p. 584)
January 17, 1998, Deposition Aftermath
By the time the President concluded his deposition on January 17,
he knew that someone was talking about his relationship with Ms.
Lewinsky. He also knew that the only person who had personal knowledge
was Ms. Lewinsky herself. The cover stories that he and Ms. Lewinsky
created, and that he used himself during the deposition, were now in
jeopardy. It became imperative that he not only contact Ms. Lewinsky,
but that he obtain corroboration of his account of the relationship
from his trusted secretary, Ms. Currie. At around 7 p.m. on the night
of the deposition, the President called Ms. Currie and asked that she
come in the following day, Sunday. (BC 7/22/98 GJ, p. 154-155; H.Doc.
105-316, p. 701 (Exhibit 6) Ms. Currie could not recall the President
ever before calling her that late at home on a Saturday night. (BC 1/
27/98 GJ, p. 69; H.Doc. 105-316, p. 559) (Chart S) Sometime in the
early morning hours of January 18, 1998, the President learned of a
news report concerning Ms. Lewinsky released earlier that day. (WJC 8/
17/98 GJ, p. 142-143; H.Doc. 105-311, pgs. 594-595) (Exhibit 14)
The Tampering With the Witness, Betty Currie
As the charts indicate, between 11:49 a.m. and 2:55 p.m., there
were three phone calls between Mr. Jordan and the President. (Exhibit
7) At about 5 p.m., Ms. Currie met with the President. (BC 1/27/98 GJ,
p. 67; H.Doc. 105-316, p. 558) He told her that he had just been
deposed and that the attorneys asked several questions about Monica
Lewinsky. (BC 1/27/98 GJ, p. 69-70; H.Doc. 105-316, p. 559) He then
made a series of statements to Ms. Currie: (Chart T)
(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 cannot do that.
(BC 1/27/98 GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC 7/22/98
GJ, pgs. 6-7; H.Doc. 105-316, p. 664)
During Betty Currie's grand jury testimony, she was asked whether
she believed that the President wished her to agree with the
statements:
Q. Would it be fair to say, then--based on the way he stated [these
five points] and the demeanor that he was using at the time that he
stated it to you--that he wished you to agree with that statement?
A. I can't speak for him, but----
Q. How did you take it? Because you told us at these [previous]
meetings in the last several days that that is how you took it.
A. [Nodding.]
Q. And you're nodding you head, ``yes,'' is that correct?
A. That's correct.
Q. Okay, with regard to the statement that the President made to
you, ``You remember I was never really alone with Monica, right?'' Was
that also a statement that, as far as you took, that he wished you to
agree with that?
A. Correct.
(BC 1/27/98 GJ, p. 74; H.Doc. 105-316, 559)
Though Ms. Currie would later intimate that she did not necessarily
feel pressured by the President, she did state that she felt the
President was seeking her agreement (or disagreement) with those
statements. (BC 7/22/98 GJ, p. 27; H.Doc. 105-316, p. 669)
Was This Obstruction of Justice?
The President essentially admitted to making these statements when
he knew they were not true. Consequently, he had painted himself into a
legal corner. Understanding the seriousness of the President
``coaching'' Ms. Currie, the argument has been made that those
statements to her could not constitute obstruction because she had not
been subpoenaed, and the President did not know that she was a
potential witness at the time. This argument is refuted by both the law
and the facts.
The United States Court of Appeals rejected this argument, and
stated, ``[A] person may be convicted of obstructing justice if he
urges or persuades a prospective witness to give false testimony.
Neither must the target be scheduled to testify at the time of the
offense, nor must he or she actually give testimony at a later time.''
United States v. Shannon, 836 F.2d 1125, 1128 (8th Cir. 1988) (citing,
e.g., United States v. Friedland, 660 F.2d 919, 931 (3rd Cir. 1981)).
Of course Ms. Currie was a prospective witness, and the President
clearly wanted her to be deposed to corroborate him, as his testimony
demonstrates. The President claims that he called Ms. Currie into work
on a Sunday night only to find out what she knew. But the President
knew the truth about his relationship with Ms. Lewinsky, and if he had
told the truth during his deposition the day before, then he would have
no reason to worry about what Ms. Currie knew. More importantly, the
President's demeanor, Ms. Currie's reaction to his demeanor, and the
blatant lies that he suggested clearly prove that the President was not
merely interviewing Ms. Currie. Rather, he was looking for
corroboration for his false cover-up, and that is why he coached her.
January 18, the Search for Ms. Lewinsky
Very soon after his Sunday meeting with Ms. Currie, at 5:12 p.m.,
the flurry of telephone calls in search of Monica Lewinsky began.
(Chart S) Between 5:12 p.m. and 8:28 p.m., Ms. Currie paged Ms.
Lewinsky four times. ``Kay'' is a reference to a code name Ms. Lewinsky
and Ms. Currie agreed to when contacting one another. (ML 8/6/98 GJ, p.
216; H.Doc. 105-311, pg. 936) At 11:02 p.m., the President called Ms.
Currie at home to ask if she had reached Lewinsky. (BC 7/22/98 GJ, p.
160; H.Doc. 105-316, p. 702)
January 19, the Search Continues
The following morning, January 19, Ms. Currie continued to work
diligently on behalf of the President. Between 7:02 a.m. and 8:41 a.m.,
she paged Ms. Lewinsky another five times. (Chart S) (Exhibit 8) After
the 8:41 page, Ms. Currie called the President at 8:43 a.m. and said
that she was unable to reach Ms. Lewinsky. (BC 7/22/98 GJ, pgs. 161-
162; H.Doc. 105-316, p. 703) One minute later, at 8:44 a.m., she again
paged Ms. Lewinsky. This time Ms. Currie's page stated ``Family
Emergency,'' apparently in an attempt to alarm Ms. Lewinsky into
calling back. That may have been the President's idea, since Ms. Currie
had just spoken with him. The President was obviously quite concerned
because he called Betty Currie only six minutes later, at 8:50 a.m.
Immediately thereafter, at 8:51 a.m., Ms. Currie tried a different
tact, sending the message: ``Good news.'' Again, perhaps at the
President's suggestion. If bad news does not get her to call, try good
news. Ms. Currie said that she was trying to encourage Ms. Lewinsky to
call, but there was no sense of ``urgency.'' (BC 7/22/98 GJ, p. 165;
H.Doc. 105-316, p. 704) Ms. Currie's recollection of why she was
calling was again fuzzy. She said at one point that she believes the
President asked her to call Ms. Lewinsky, and she thought she was
calling just to tell her that her name came up in the deposition. (BC
7/22/98 GJ, p. 162; H.Doc. 105-316, p. 703) Monica Lewinsky had been
subpoenaed; of course her name came up in the deposition. There was
obviously another and more important reason the President needed to get
in touch with her.
Mr. Jordan and Ms. Lewinsky's Lawyers Join the Search
At 8:56 a.m., the President telephoned Vernon Jordan, who then
joined in the activity. Over a course of twenty-four minutes, from
10:29 to 10:53 a.m., Mr. Jordan called the White House three times,
paged Ms. Lewinsky, and called Ms. Lewinsky's attorney, Frank Carter.
Between 10:53 a.m. and 4:54 p.m., there are continued calls between Mr.
Jordan, Ms. Lewinsky's attorney and individuals at the White House.
Ms. Lewinsky Replaces Her Lawyer
Later that afternoon, at 4:54 p.m., Mr. Jordan called Mr. Carter.
Mr. Carter relayed that he had been told he no longer represented Ms.
Lewinsky. (VJ 3/5/98 GJ, p. 141; H.Doc. 105-316, p. 1771) Mr. Jordan
then made feverish attempts to reach the President or someone at the
White House to tell them the bad news, as represented by the six calls
between 4:58 p.m. and 5:22 p.m. Vernon Jordan said that he tried to
relay this information to the White House because ``[t]he President
asked me to get Monica Lewinsky a job,'' and he thought it was
``information that they ought to have.'' (VJ 6/9/98 GJ, pgs. 45-46;
H.Doc. 105-316, p. 1968) (Chart Q) Mr. Jordan then called Mr. Carter
back at 5:14 p.m. to go over what they had already talked about. (VJ 3/
5/98 GJ, p. 146; H.Doc. 104-316, p. 1772) Mr. Jordan finally reached
the President at 5:56 p.m. and told him that Mr. Carter had been fired.
(VJ 6/9/98 GJ, p. 54; H.Doc. 105-316, p. 1970)
The Reason for the Urgent Search
This activity shows how important it was for the President of the
United States to find Monica Lewinsky to learn to whom she was talking.
Betty Currie was in charge of contacting Ms. Lewinsky. The President
had just completed a deposition in which he provided false and
misleading testimony about his relationship with Ms. Lewinsky. She was
a co-conspirator in hiding this relationship from the Jones attorneys,
and he was losing control over her. The President never got complete
control over her again.
Article I.--False and Misleading Statements to the Grand Jury
Article I addresses the President's perjurious, false, and
misleading testimony to the grand jury. Four categories of false grand
jury testimony are listed in the Article. Some salient examples of
false statements are described below. When judging the statements made
and the answers given, it is vital to recall that the President spent
literally days preparing his testimony with his lawyer. He and his
attorney were fully aware that the testimony would center around his
relationship with Ms. Lewinsky and his deposition testimony in the
Jones case.
Grand Jury Testimony
On August 17, after six invitations, the President of the United
States appeared before a grand jury of his fellow citizens and took an
oath to tell the complete truth. The President proceeded to equivocate
and engage in legalistic fencing; he also lied. The entire testimony
was calculated to mislead and deceive the grand jury and to obstruct
its process, and eventually to deceive the American people. He set the
tone at the very beginning. In the grand jury a witness can tell the
truth, lie or assert his privileges against self incrimination. (Chart
Y) President Clinton was given a fourth choice. The President was
permitted to read a statement. (Chart Z; WJC 8/17/98 GJ, pgs. 8-9)
The President's Prepared Statement
That statement itself is demonstrably false in many particulars.
President Clinton claims that he engaged in inappropriate conduct with
Ms. Lewinsky ``on certain occasions in early 1996 and once in 1997.''
Notice he did not mention 1995. There was a reason. On three
``occasions'' in 1995, Ms. Lewinsky said she engaged in sexual contact
with the President. Ms. Lewinsky was a twenty-one year old intern at
the time.
The President unlawfully attempted to conceal his three visits
alone with Ms. Lewinsky in 1995 during which they engaged in sexual
conduct. (ML 8/6/98 GJ, pgs. 27-28; H.Doc. 105-311, pgs. 747-748; ML 8/
6/98 GJ, Ex. 7; H.Doc. 105-311, p. 1251; Chart A) Under Judge Wright's
ruling, this evidence was relevant and material to Paula Jones' sexual
harassment claims. (Order, Judge Susan Webber Wright, December 11,
1997, p. 3)
The President specifically and unequivocally states, ``[The
encounters] did not constitute sexual relations as I understood that
term to be defined at my January 17, 1998 deposition.'' That assertion
is patently false. It is directly contradicted by the corroborated
testimony of Monica Lewinsky. (See eg: ML 8/20/98 GJ, pgs. 31-32;
H.Doc. 311, p. 1174; ML 8/26/98 Dep., p. 25, 30; H.Doc. 311, pgs. 1357,
1358)
Evidence indicates that the President and Ms. Lewinsky engaged in
``sexual relations'' as the President understood the term to be defined
at his deposition and as any reasonable person would have understood
the term to have been defined.
Contrary to his statement under oath, the President's conduct
during the 1995 visits and numerous additional visits did constitute
``sexual relations'' as he understood the term to be defined at his
deposition. Before the grand jury, the President admitted that directly
touching or kissing another person's breast, or directly touching
another person's genitalia with the intent to arouse, would be ``sexual
relations'' as the term was defined. (WJC 8/17/98 GJ, pgs. 94-95; H.Doc
105-311, pgs. 546-547) However, the President maintained that he did
not engage in such conduct. (Id.) These statements are contradicted by
Ms. Lewinsky's testimony and the testimony of numerous individuals with
whom she contemporaneously shared the details of her encounters with
the President. Moreover, the theory that Ms. Lewinsky repeated and
unilaterally performed acts on the President while he tailored his
conduct to fit a contorted definition of ``sexual relations'' which he
had not contemplated at the time of the acts, defies common sense.
Moreover, the President had not even formed the contorted
interpretation of ``sexual relations'' which he asserted in the grand
jury until after his deposition had concluded. This is demonstrated by
the substantial evidence revealing the President's state of mind during
his deposition testimony. First, the President continuously denied at
his deposition any fact that would cause the Jones lawyers to believe
that he and Ms. Lewinsky had any type of improper relationship,
including a denial that they had a sexual affair, (WJC 1/17/98 Dep., p.
78) not recalling if they were ever alone, (WJC 1/17/98 Dep., pgs. 52-
53, 59) and not recalling whether Ms. Lewinsky had ever given him
gifts. (WJC 1/17/98 Dep., pg. 75) Second, the President testified that
Ms. Lewinsky's affidavit denying a sexual relationship was ``absolutely
true'' when, even by his current reading of the definition, it is
absolutely false. (WJC 1/17/98 Dep., p. 204) Third, the White House
produced a document entitled ``January 24, 1998 Talking Points,''
stating flatly that the President's definition of ``sexual relations''
included oral sex. (Chart W) Fourth, the President made statements to
staff members soon after the deposition, saying that he did not have
sexual relations, including oral sex, with Ms. Lewinsky, (Podesta 6/16/
98 GJ, pg. 92; H.Doc. 105-316, p. 3311) and that she threatened to tell
people she and the President had an affair when he rebuffed her sexual
advances. (Blumenthal 6/4/98 GJ, p. 59; H.Doc. 105-316, p. 185) Fifth,
President Clinton's Answer filed in Federal District Court in response
to Paula Jones' First Amended Complaint states unequivocally that
``President Clinton denies that he engaged in any improper conduct with
respect to plaintiff or any other woman.'' (Answer of Defendant William
Jefferson Clinton, December 17, 1997, p. 8, para. 39) Sixth, in
President Clinton's sworn Answers to Interrogatories Numbers 10 and 11,
as amended, he flatly denied that he had sexual relations with any
federal employee. The President filed this Answer prior to his
deposition. Finally, as described below, the President sat silently
while his attorney, referring to Ms. Lewinsky's affidavit, represented
to the court that there was no sex of any kind or in any manner between
the President and Ms. Lewinsky. (WJC 1/17/98 Dep., pg. 54)
This circumstantial evidence reveals the President's state of mind
at the time of the deposition: his concern was not in technically or
legally accurate answers, but in categorically denying anything
improper. His grand jury testimony about his state of mind during the
deposition is false.
Reasons for the False Testimony
The President did not lie to the grand jury to protect himself from
embarrassment, as he could no longer deny the affair. Before his grand
jury testimony, the President's semen had been identified by laboratory
tests on Ms. Lewinsky's dress, and during his testimony, he admitted an
``inappropriate intimate relationship'' with Ms. Lewinsky, In fact,
when he testified before the grand jury, he was only hours away from
admitting the affair on national television. Embarrassment was
inevitable. But, if he truthfully admitted the details of his
encounters with Ms. Lewinsky to the grand jury, he would be
acknowledging that he lied under oath during his deposition when he
claimed that he did not engage in sexual relations with Ms. Lewinsky.
(WJC 1/17/98 Dep., pgs. 78, 109, 204) Instead, he chose to lie, not to
protect his family or the dignity of his office, but to protect himself
from criminal liability for his perjury in the Jones case.
Additional Falsity in the Prepared Statement
The President's statement continued, ``I regret that what began as
a friendship came to include this conduct [.]'' (WJC 8/17/98 GJ, p. 9;
H.Doc. 105-311, p. 461) The truth is much more troubling. As Ms.
Lewinsky testified, her relationship with the President began with
flirting, including Ms. Lewinsky showing the President her underwear.
(ML 7/30/98 Int., p. 5; H.Doc. 105-311, p. 1431) As Ms. Lewinsky
candidly admitted, she was surprised that the President remembered her
name after their first two sexual encounters. (ML 8/26/98 Dep., p. 25;
H.Doc. 105-311, p. 1295)
Reason for the Falsity
The President's prepared statement, fraught with untruths, was not
an answer the President delivered extemporaneously to a particular
question. It was carefully drafted testimony which the President read
and relied upon throughout his deposition. The President attempted to
use the statement to foreclose questioning on an incriminating topic on
nineteen separate occasions. Yet, this prepared testimony, which along
with other testimony provides the basis for Article I, Item 1, actually
contradicts his sworn deposition testimony.
Contrary Deposition Testimony
In this statement, the President admits that he and Ms. Lewinsky
were alone on a number of occasions. He refused to make this admission
in his deposition in the Jones case. During the deposition, the
following exchange occurred:
Q. Mr. President, before the break, we were talking about Monica
Lewinsky. At any time were you and Monica Lewinsky together alone in
the Oval Office?
A. I don't recall, but as I said, when she worked in the
legislative affairs office, they always had somebody there on the
weekends. I typically work some on the weekends. Sometimes they'd bring
me things on the weekends. She--it seems to me she brought things to me
once or twice on the weekends. In that case, whatever time she would be
in there, drop if off, exchange a few words and go, she was there. I
don't have any specific recollections of what the issues were, what was
going on, but when the Congress is there, we're working all the time,
and typically I would do some work on one of the days of the weekends
in the afternoon.
Q. So I understand, your testimony is that it was possible, then,
that you were alone with her, but you have no specific recollection of
that ever happening?
A. Yes, that's correct. It's possible that she, in, while she was
working there, brought something to me and that at the time she brought
it to me, she was the only person there. That's possible.
(WJC 1/17/98 Dep., pgs. 52-53)
After telling this verbose lie under oath, the President was given
an opportunity to correct himself. This exchange followed:
Q. At any time have you and Monica Lewinsky ever been alone
together in any room in the White House?
A. I think I testified to that earlier. I think that there is a, it
is--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.
That's--I have a general memory of that.
Q. Do you remember anything that was said in any of those meetings?
A. No. You know, we just had conversation, I don't remember.
(WJC 1/17/98 Dep., pgs. 52-53)
Before the grand jury, the President maintained that he testified
truthfully at his deposition, a lie which provides, in part, the basis
for Article I, Item 2. He stated, ``My goal in this deposition was to
be truthful, but not particularly helpful . . . I was determined to
walk through the mind field of this deposition without violating the
law, and I believe I did.'' (WJC 8/17/98 GJ, p. 80; H.Doc. 105-311, p.
532) But contrary to his deposition testimony, he certainly was alone
with Ms. Lewinsky when she was not delivering papers, as the President
conceded in his prepared grand jury statement.
In other words, the President's assertion before the grand jury
that he was alone with Ms. Lewinsky, but that he testified truthfully
in his deposition, is inconsistent. Yet, to this day, both the
President and his attorneys have insisted that he did not lie at his
deposition and that he did not lie when he swore under oath that he did
not lie at his deposition.
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.
Testimony Concerning the False Affidavit
Article I, Item 3 charges the President with providing perjurious,
false and misleading testimony before a federal grand jury concerning
false and misleading statements his attorney Robert Bennett made to
Judge Wright at the President's deposition. In one statement, while
objecting to questions regarding Ms. Lewinsky, Mr. Bennett misled the
Court, perhaps knowingly, stating, ``Counsel [for Ms. Jones] 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[.]'' (WJC 1/17/98 Dep.,
pgs. 53-54) When Judge Wright interrupted Mr. Bennett and expressed her
concern that he might be coaching the President, Mr. Bennett responded,
``In preparation of the witness for this deposition, the witness is
fully aware of Ms. Lewinsky's affidavit, so I have not told him a
single thing he doesn't know[.]'' (WJC 1/17/98 Dep., p. 54) (Emphasis
added)
When asked before the grand jury about his statement to Judge
Wright, the President testified, ``I'm not even sure I paid attention
to what he was saying,'' (WJC 8/17/98 GJ, p. 24; H.Doc. 105-3131, p.
476) He added, ``I didn't pay much attention to this conversation,
which is why, when you started asking me about this, I asked to see the
deposition.'' (WJC 8/17/98 GJ, p. 24; H.Doc. 105-311, p. 477) Finally,
``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 hearing. That moment, the whole argument just passed me by.''
(WJC 8/17/98 GJ, p. 29; H.Doc. 105-311, p. 481)
This grand jury testimony defies common sense. During his
deposition testimony, the President admittedly misled Ms. Jones'
attorneys about his affair with Ms. Lewinsky, which continued while Ms.
Jones' lawsuit was pending, because he did not want the truth to be
known. Of course, when Ms. Lewinsky's name is mentioned during the
deposition, particularly in connection with sex, the President is going
to listen. Any doubts as to whether he listened to Mr. Bennett's
representations are eliminated by watching the videotape of the
President's deposition. The videotape shows the President looking
directly at Mr. Bennett, paying close attention to his argument to
Judge Wright.
False Testimony Concerning Obstruction of Justice
Article I, Item 4 concerns the President's grand jury perjury
regarding his efforts to influence the testimony of witnesses and his
efforts to impede discovery in the Jones v. Clinton lawsuit. These
lies are perhaps the most troubling, as the President used them in an
attempt to conceal his criminal actions and the abuse of his office.
For example, the President testified before the grand jury that he
recalled telling Ms. Lewinsky that if Ms. Jones' lawyers requested the
gifts exchanged between Ms. Lewinsky and the President, she should
provide them. (WJC 8/17/98 GJ, p. 43; H.Doc. 105-311, p. 495) He
stated, ``And I told her that if they asked her for gifts, she'd have
to give them whatever she had, that that's what the law was.'' (Id.)
This testimony is false, as demonstrated by both Ms. Lewinsky's
testimony and common sense.
Ms. Lewinsky testified that on December 28, 1997, she discussed
with the President the subpoena's request for her to produce gifts,
including a hat pin. She told the President that it concerned her, (ML
8/6/98 GJ, p. 151; H.Doc. 105-311, p. 871) and he said that it
``bothered'' him too. (ML 8/20/98 GJ, p. 66; H.Doc. 105-311, p. 1122)
Ms. Lewinsky then suggested that she give the gifts to someone, maybe
to Betty. But rather than instructing her to turn the gifts over to Ms.
Jones' attorneys, the President replied, ``I don't know'' or ``Let me
think about that.'' (ML 8/6/98 GJ, p. 152; H.Doc. 105-311, p. 872)
Several hours later, Ms. Currie called Ms. Lewinsky on her cellular
phone and said, ``I understand you have something to give me'' or ``the
President said you have something to give me.'' (ML 8/6/98 GJ, pgs.
154-155; H.Doc. 105-311, pgs. 874-875)
Although Ms. Currie agrees that she picked up the gifts from Ms.
Lewinsky, Ms. Currie testified that ``the best'' she remembers is that
Ms. Lewinsky called her. (BC 5/6/98 GJ, p. 105; H.Doc. 105-316, p. 581)
She later conceded that Ms. Lewinsky's memory may be better than hers
on this point. (BC 5/6/98 GJ, p. 126; H.Doc. 105-316, p. 584) A
telephone record corroborates Ms. Lewinsky, revealing that Ms. Currie
did call her from her cellular phone several hours after Ms. Lewinsky's
meeting with the President. The only logical reason Ms. Currie called
Ms. Lewinsky to retrieve gifts from the President is that the President
told her to do so. He would not have given this instruction if he
wished the gifts to be given to Ms. Jones' attorneys.
Testimony Concerning Ms. Currie
The President again testified falsely when he told the grand jury
that he was simply trying to ``refresh'' his recollection when he made
a series of statements to Ms. Currie the day after his deposition. (WJC
8/17/98 GJ, p. 131; H.Doc. 105-311, p. 583) Ms. Currie testified that
she met with the President at about 5:00 P.M. on January 18, 1998, and
he proceeded to make these statements to her:
(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 cannot do that.
(BC 1/27/98 GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC 7/22/98
GJ, pgs. 6-7; H.Doc. 105-316, p. 664)
Ms. Currie testified that these were more like statements than
questions, and that, as far as she understood, the President wanted her
to agree with the statements. (BC 1/27/98 GJ, p. 74; H.Doc. 105-316, p.
559)
The President was asked specifically about these statements before
the grand jury. He did not deny them, but said that he was ``trying to
refresh [his] memory about what the facts were.'' (WJC 8/17/98 GJ, p.
131; H.Doc. 105-311, p. 583) He added that he wanted to ``know what
Betty's memory was about what she heard,'' (WJC 8/17/98 GJ, p. 54;
H.Doc. 105-316, p. 506) and that he was ``trying to get as much
information as quickly as [he] could.'' (WJC 8/17/98 GJ, p. 56; H.Doc.
105-311, p. 508) Logic demonstrates that the President's explanation is
contrived and false.
A person does not refresh his recollection by firing declarative
sentences dressed up as leading questions to his secretary. If the
President was seeking information, he would have asked Ms. Currie what
she recalled. Additionally, a person does not refresh his recollection
by asking questions concerning factual scenarios of which the listener
was unaware, or worse, of which the declarant and the listener knew
were false. How would Ms. Currie know if she was always there when Ms.
Lewinsky was there? Ms. Currie, in fact, acknowledged during her grand
jury testimony that Ms. Lewinsky could have visited the President at
the White House when Ms. Currie was not there. (BC 7/22/98 GJ, pgs. 65-
66; H.Doc. 105-316, p. 679) Ms. Currie also testified that there were
several occasions when the President and Ms. Lewinsky were in the Oval
Office or study area without anyone else present. (BC 1/27/98 GJ, pgs.
32-33, 36-38; H.Doc. 105-316, pgs. 552-553)
More importantly, the President admitted in his statement to the
grand jury that he was alone with Ms. Lewinsky on several occasions.
(WJC 8/17/98 GJ, pgs. 9-10; H.Doc. 105-311, pgs. 460-461) Thus, by his
own admission, his statement to Ms. Currie about never being alone with
Ms. Lewinsky was false. And if they were alone together, Ms. Currie
certainly could not say whether the President touched Ms. Lewinsky or
not.
The statement about whether Ms. Currie could see and hear
everything is also refuted by the President's own grand jury testimony.
During his ``intimate'' encounters with Ms. Lewinsky, he ensured
everyone, including Ms. Currie, was excluded. (WJC 8/17/98 GJ, p. 53;
H.Doc. 105-311, p. 505) Why would someone refresh his recollection by
making a false statement of fact to a subordinate? The answer is
obvious--he would not.
Lastly, the President stated in the grand jury that he was
``downloading'' information in a ``hurry,'' apparently explaining that
he made these statements because he did not have time to listen to
answers to open-ended questions. (WJC 8/17/98 GJ, p. 56; H.Doc. 105-
311, p. 508) But, if he was in such a hurry, why did the President not
ask Ms. Currie to refresh his recollection when he spoke with her on
the telephone the previous evening? He also has no adequate explanation
as to why he could not spend an extra five or 10 minutes with Ms.
Currie on January 18 to get her version of the events. In fact, Ms.
Currie testified that she first met the President on January 18 while
he was on the White House putting green, and he told her to go into the
office and he would be in in a few minutes. (BC 1/27/98 GJ, pgs. 67-70;
H.Doc. 105-316, pgs. 558-559) And if he was in such a hurry, why did he
repeat these statements to Ms. Currie a few days later? (BC 1/27/98 GJ,
pgs. 80-81; H.Doc. 105-316, pgs. 560-561) The reason for these
statements had nothing to do with time constraints or refreshing
recollection; he had just finished lying during the Jones deposition
about these issues, and he needed corroboration from his secretary.
Testimony About Influencing Aides
Not only did the President lie about his attempts to influence Ms.
Currie's testimony, but he lied about his attempts to influence the
testimony of some of his top aides. Among the President's lies to his
aides, described in detail later in this brief, were that Ms. Lewinsky
did not perform oral sex on him, and that Ms. Lewinsky stalked him
while he rejected her sexual demands. These lies were then disseminated
to the media and attributed to White House sources. They were also
disseminated to the grand jury.
When the President was asked about these lies before the grand
jury, he testified:
``And so I said to them things that were true about this
relationship. That I used--in the language I used, I said, there's
nothing going on between us. That was true. I said, I have not had sex
with her as I defined it. That was true. And did I hope that I never
would have to be here on this day giving this testimony? Of course.
``But I also didn't want to do anything to complicate this matter
further. So I said things that were true. They may have been
misleading, and if they were I have to take responsibility for it, and
I'm sorry.''
(WJC 8/17/98 GJ, p. 106; H.Doc. 105-311, p. 558)
To accept this grand jury testimony as truth, one must believe that
many of the President's top aides engaged in a concerted effort to lie
to the grand jury in order to incriminate him at the risk of subjecting
themselves to a perjury indictment. We suggest that it is illustrative
of the President's character that he never felt any compunction in
exposing others to false testimony charges, so long as he could conceal
his own perjuries. Simply put, such a conspiracy did not exist.
The above are merely highlights of the President's grand jury
perjury, and there are numerous additional examples. In order to keep
these lies in perspective, three facts must be remembered. First,
before the grand jury, the President was not lying to cover up an
affair and protect himself from embarrassment, as concealing the affair
was now impossible. Second, the President could no longer argue that
the facts surrounding his relationship with Ms. Lewinsky were somehow
irrelevant or immaterial, as the Office of Independent Counsel and the
grand jury had mandates to explore them. Third, he cannot claim to have
been surprised or unprepared for questions about Ms. Lewinsky before
the grand jury, as he spent days with his lawyer, preparing responses
to such questions.
The President's Method
Again, the President carefully crafted his statements to give the
appearance of being candid, when actually his intent was the opposite.
In addition, throughout the testimony, whenever the President was asked
a specific question that could not be answered directly without either
admitting the truth or giving an easily provable false answer, he said,
``I rely on my statement.'' 19 times he relied on this false and
misleading statement; nineteen times, then, he repeated those lies in
``answering'' questions propounded to him. (See eg. WJC 8/17/98 GJ, pg.
139; H.Doc. 105-311, p. 591)
The House Committee's Request
In an effort to avoid unnecessary work and to bring its inquiry to
an expeditious end, the Judiciary Committee of the House of
Representatives submitted to the President 81 requests to admit or deny
specific facts relevant to this investigation. (Exhibit 18) Although,
for the most part, the questions could have been answered with a simple
``admit'' or ``deny,'' the President elected to follow the pattern of
selective memory, reference to other testimony, blatant untruths,
artful distortions, outright lies, and half truths. When he did answer,
he engaged in legalistic hair-splitting in an obvious attempt to skirt
the whole truth and to deceive and obstruct the due proceedings of the
Committee.
The President Repeats His Falsities
Thus, on at least 23 questions, the President professed a lack of
memory. This from a man who is renowned for his remarkable memory, for
his amazing ability to recall details.
In at least 15 answers, the President merely referred to ``White
House Records.'' He also referred to his own prior testimony and that
of others. He answered several of the requests by merely restating the
same deceptive answers that he gave to the grand jury. We will point
out several false statements in this Brief.
In addition, the half-truths, legalistic parsings, evasive and
misleading answers were obviously calculated to obstruct the efforts of
the House Committee. They had the effect of seriously hampering its
ability to inquire and to ascertain the truth. The President has,
therefore, added obstruction of an inquiry and an investigation before
the Legislative Branch to his obstructions of justice before the
Judicial Branch of our constitutional system of government.
The Early Attack on Ms. Lewinsky
After his deposition, the power and prestige of the Office of
President was marshaled to destroy the character and reputation of
Monica Lewinsky, a young woman that had been ill-used by the President.
As soon as her name surfaced, the campaign began to muzzle any possible
testimony, and to attack the credibility of witnesses, in a concerted
effort to obstruct the due administration of justice in a lawsuit filed
by one female citizen of Arkansas. It almost worked.
When the President testified at his deposition that he had no
sexual relations, sexual affair or the like with Monica Lewinsky, he
felt secure. Monica Lewinksy, the only other witness was on board. She
had furnished a false affidavit also denying everything. Later, when he
realized from the January 18, 1998, Drudge Report that there were taped
conversations between Ms. Lewinsky and Linda Tripp, he had to develop a
new story, and he did. In addition, he recounted that story to White
House aides who passed it on to the grand jury in an effort to obstruct
that tribunal too.
On Wednesday, January 21, 1998, The Washington Post published a
story entitled ``Clinton Accused of Urging Aide to Lie; Starr Probes
Whether President Told Woman to Deny Alleged Affair to Jones'
Lawyers.'' The White House learned the substance of the Post story on
the evening of January 20, 1998.
Mr. Bennett's Remark
After the President learned of the existence of the story, he made
a series of telephone calls.
At 12:08 a.m. he called his attorney, Mr. Bennett, and they had a
conversation. The next morning, Mr. Bennett was quoted in the
Washington Post stating:
``The President adamantly denies he ever had a relationship with
Ms. Lewinsky and she has confirmed the truth of that.'' He added,
``This story seems ridiculous and I frankly smell a rat.''
Additional Calls
After that conversation, the President had a half hour conversation
with White House counsel, Bruce Lindsey.
At 1:16 a.m., the President called Betty Currie and spoke to her
for 20 minutes.
He then called Bruce Lindsey again.
At 6:30 a.m. the President called Vernon Jordan.
After that, the President again conversed with Bruce Lindsey.
This flurry of activity was a prelude to the stories which the
President would soon inflict upon top White House aides and advisors.
The President's Statements to Staff
erskine bowles
On the morning of January 21, 1998, the President met with White
House Chief of Staff, Erskine Bowles, and his two deputies, John
Podesta and Sylvia Matthews.
Erskine Bowles recalled entering the President's office at 9:00
a.m. that morning. He then recounts the President's immediate words as
he and two others entered the Oval Office:
And he looked up at us and he said the same thing he said to the
American people.
He said, ``I want you to know I did not have sexual relationships
with this woman, Monica Lewinsky. I did not ask anybody to lie. And
when the facts come out, you'll understand.''
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239) After the President
made that blanket denial, Mr. Bowles responded:
I said, ``Mr. President, I don't know what the facts are. I don't
know if they're good, bad, or indifferent. But whatever they are, you
ought to get them out. And you ought to get them out rignt now.''
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239)
When counsel asked whether the President responded to Bowles'
suggestion that he tell the truth, Bowles responded:
I don't think he made any response, but he didn't disagree with me.
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239)
john podesta
January 21, 1998
Deputy Chief John Podesta also recalled a meeting with the
President on the morning of January 21, 1998.
He testified before the grand jury as to what occurred in the Oval
Office that morning:
A. And we started off meeting--we didn't--I don't think we said
anything. And I think the President directed this specifically to Mr.
Bowles. He said, ``Erskine, I want you to know that this story is not
true.''
Q. What else did he say?
A. He said that--that he had not had a sexual relationship with
her, and that he never asked anybody to lie.
(Podesta, 6/16/98 GJ, p. 85; H.Doc. 105-316, p. 3310)
January 23, 1998
Two days later, on January 23, 1998, Mr. Podesta had another
discussion with the President:
``I asked him how he was doing, and he said he was working on this
draft and he said to me that he never had sex with her, 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.''
Then Podesta testified as follows:
Q. Okay. Not explicit, in the sense that he got more specific than
sex, than the word ``sex.''
A. Yes, he was more specific than that.
Q. Okay, share that with us.
A. 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----
Q. Okay.
A. That they had not had oral sex.
(Podesta, 6/16/98 GJ, p. 92; H.Doc. 105-316, p. 3311) (Exhibit V)
sidney blumenthal
Later in the day on January 21, 1998, the President called Sidney
Blumenthal to his office. It is interesting to note how the President's
lies become more elaborate and pronounced when he has time to concoct
this newest line of defense. When the President spoke to Mr. Bowles and
Mr. Podesta, he simply denied the story. But, by the time he spoke to
Mr. Blumenthal, the President has added three new angles to his defense
strategy: (1) he now portrays Monica Lewinsky as the aggressor; (2) he
launches an attack on her reputation by portraying her as a
``stalker''; and (3) he presents himself as the innocent victim being
attacked by the forces of evil.
Note well this recollection by Mr. Blumenthal in his June 4, 1998
testimony: (Chart U)
And it was at this point that he gave his account of what had
happened to me and he said that Monica--and it came very fast. 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 the stalker anymore.
(Blumenthal, 6/4/98 GJ, p. 49; H.Doc. 105-316, p. 185)
And then consider what the President told Mr. Blumenthal moments
later:
And he said, ``I feel like a character in a novel. 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. I feel like the character
in the novel Darkness at Noon.
And I said to him, ``When this happened with Monica Lewinsky, were
you alone?'' He said, ``Well, I was within eyesight or earshot of
someone.''
(Blumenthal, 6/4/98 GJ, p. 50; H.Doc. 105-316, p. 185)
At one point, Mr. Blumenthal was asked by the grand jury to
describe the President's manner and demeanor during the exchange.
Q. In response to my question how you responded to the President's
story about a threat or discussion about a threat from Ms. Lewinsky,
you mentioned you didn't recall specifically. Do you recall generally
the nature of your response to the President?
A. It was generally sympathetic to the President. And I certainly
believed his story. It was a very heartfelt story, he was pouring out
his heart, and I believed him.
(Blumenthal, 6/25/98 GJ, pgs. 16-17; H.Doc. 105-316, pgs. 192-193)
betty currie
When Betty Currie testified before the grand jury, she could not
recall whether she had another one-on-one discussion with the President
on Tuesday, January 20, or Wednesday, January 21. But she did state
that on one of those days, the President summoned her back to his
office. At that time, the President recapped their now-infamous Sunday
afternoon post-deposition discussion in the Oval Office. It was at that
meeting that the President made a series of statements to Ms. Currie,
to some of which she could not possibly have known the answers. (e.g.
``Monica came on to me and I never touched her, right?'') (BC 1/27/98
GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC 7/22/98 GJ, pgs. 6-7;
H.Doc. 105-316, p. 664)
When he spoke to her on January 20 or 21, he spoke in the same tone
and demeanor that he used in his January 18 Sunday session.
Ms. Currie stated that the President may have mentioned that she
might be asked about Monica Lewinsky. (BC, 1/24/98 Int., p. 8; H.Doc.
105-316, p. 536)
Motive for Lies to Staff
It is abundantly clear that the President's assertions to staff
were designed for dissemination to the American people. But it is more
important to understand that the President intended his aides to relate
that false story to investigators and grand jurors alike. We know that
this is true for the following reasons: the Special Division had
recently appointed the Office of Independent Counsel to investigate the
Monica Lewinsky matter; the President realized that Jones' attorneys
and investigators were investigating this matter; the Washington Post
journalists and investigators were exposing the details of the Lewinsky
affair; and, an investigation relating to perjury charges based on
Presidential activities in the Oval Office would certainly lead to
interviews with West Wing employees and high level staffers. Because
the President would not appear before the grand jury, his version of
events would be supplied by those staffers to whom he had lied. The
President actually acknowledged that he knew his aides might be called
before the grand jury. (WJC 8/17/98 GJ, pgs. 105-109; H.Doc. 105-311,
pgs. 557-557)
In addition, Mr. Podesta testified that he knew that he was likely
to be a witness in the ongoing grand jury criminal investigation. He
said that he was ``sensitive about not exchanging information because I
knew I was a potential witness.'' (Podesta 6/23/98 GJ, p. 79; H.Doc.
105-316, p. 3332) He also recalled that the President volunteered to
provide information about Ms. Lewinsky to him even though Mr. Podesta
had not asked for these details. (Podesta 6/23/98 GJ, p. 79; H.Doc.
105-316, p. 3332)
In other words, the President's lies and deceptions to his White
House aides, coupled with his steadfast refusal to testify had the
effect of presenting a false account of events to investigators and
grand jurors. The President's aides believed the President when he told
them his contrived account. The aides' eventual testimony provided the
President's calculated falsehoods to the grand jury which, in turn,
gave the jurors an inaccurate and misleading set of facts upon which to
base any decisions.
Win, Win, Win
President Clinton also implemented a win-at-all-costs strategy
calculated to obstruct the administration of justice in the Jones case
and in the grand jury. This is demonstrated in testimony presented by
Richard ``Dick'' Morris to the federal grand jury.
Mr. Morris, a former presidential advisor, testified that on
January 21, 1998, he met President Clinton and they discussed the
turbulent events of the day. The President again denied the accusations
against him. After further discussions, they decided to have an
overnight poll taken to determine if the American people would forgive
the President for adultery, perjury, and obstruction of justice. When
Mr. Morris received the results, he called the President:
``And I said, `They're just too shocked by this. It's just too new,
it's too raw.' And I said, `And the problem is they're willing to
forgive you for adultery, but not for perjury or obstruction of justice
or the various other things.' ''
(Morris 8/18/98 GJ. p. 28; H.Doc. 105-316, p. 2929)
Morris recalls the following exchange:
Morris: And I said, ``They're just not ready for it.'' meaning the
voters.
WJC: Well, we just have to win, then.
(Morris 8/18/98 GJ, p. 30; H.Doc. 105-216, p. 2930)
The President, of course, cannot recall this statement,
(Presidential Responses to Questions, Numbers 69, 70, and 71)
The Plot to Discredit Monica Lewinsky
In order to ``win,'' it was necessary to convince the public, and
hopefully the grand jurors who read the newspapers, that Monica
Lewinsky was unworthy of belief. If the account given by Ms. Lewinsky
to Linda Tripp was believed, then there would emerge a tawdry affair in
and near the Oval Office. Moreover, the President's own perjury and
that of Monica Lewinsky would surface. To do this, the President
employed the full power and credibility of the White House and its
press corps to destroy the witness. Thus on January 29, 1998:
Inside the White House, the debate goes on about the best way to
destroy That Woman, as President Bill Clinton called Monica Lewinsky.
Should they paint her as a friendly fantasist or a malicious stalker?
(The Plain Dealer)
Again:
``That poor child has serious emotional problems,'' Rep. Charles
Rangel, Democrat of New York, said Tuesday night before the State of
the Union. ``She's fantasizing. And I haven't heard that she played
with a full deck in her other experiences.'' (The Plain Dealer)
From Gene Lyons, an Arkansas columnist on January 30:
``But it's also very easy to take a mirror's eye view of this
thing, look at this thing from a completely different direction and
take the same evidence and posit a totally innocent relationship in
which the President was, in a sense, the victim of someone rather like
the woman who followed David Letterman around.'' (NBC News)
From another ``source'' on February 1:
``Monica had become known at the White House, says one source, as
`the stalker.' ''
And on February 4:
``The media have reported that sources describe Lewinsky as
`infatuated' with the President, `star struck' and even `a stalker'.''
(Buffalo News)
Finally, on January 31:
``One White House aide called reporters to offer information about
Monica Lewinsky's past, her weight problems and what the aide said was
her nickname--`The Stalker.' ''
``Junior staff members, speaking on the condition that they not be
identified, said she was known as a flirt, wore her skirts too short,
and was `A little bit weird.' ''
``Little by little, ever since allegations of an affair between
U.S. President Bill Clinton and Lewinsky surfaced 10 days ago, White
House sources have waged a behind-the-scenes campaign to portray her as
an untrustworthy climber obsessed with the President.''
``Just hours after the story broke, one White House source made
unsolicited calls offering that Lewinsky was the `troubled' product of
divorced parents and may have been following the footsteps of her
mother, who wrote a tell-all book about the private lives of three
famous opera singers.''
``One story had Lewinsky following former Clinton aide George
Stephanopoulos to Starbucks. After observing what kind of coffee he
ordered, she showed up the next day at his secretary's desk with a cup
of the same coffee to `surprise him.' '' (Toronto Sun)
This sounds familiar because it is the exact tactic used to destroy
the reputation and credibility of Paula Jones. The difference is that
these false rumors were emanating from the White House, the bastion of
the free world, to protect one man from being forced to answer for his
deportment in the highest office in the land.
On August 17, 1998, the President testified before the grand jury.
He then was specifically asked whether he knew that his aides
(Blumenthal, Bowles, Podesta and Currie) were likely to be called
before the grand jury.
Q. It may have been misleading, sir, and you knew though, after
January 21st when the Post article broke and said that Judge Starr was
looking into this, you knew that they might be witnesses. You knew that
they might be called into a grand jury, didn't you?
WJC. That's right. I think I was quite careful what I said after
that. I may have said something to all these people to that effect, but
I'll also--whenever anybody asked me any details, I said, look, I don't
want you to be a witness or I turn you into a witness or give you
information that would get you in trouble. I just wouldn't talk. I, by
and large, didn't talk to people about it.
Q. If all of these people--let's leave Mrs. Currie for a minute.
Vernon Jordan, Sid Blumenthal, John Podesta, Harold Ickes, Erskine
Bowles, Harry Thomasson, after the story broke, after Judge Starr's
involvement was known on January 21st, have said that you denied a
sexual relationship with them. Are you denying that?
WJC. No.
Q. And you've told us that you----
WJC. I'm just telling you what I meant by it. I told you what I
meant by it when they started this deposition.
Q. You've told us now that you were being careful, but that it
might have been misleading. Is that correct?
WJC. It must have been * * * So, what I was trying to do was to
give them something they could--that would be true, even if misleading
in the context of this deposition, and keep them out of trouble, and
let's deal--and deal with what I thought was the almost ludicrous
suggestion that I had urged someone to lie or tried to suborn perjury,
in other words.
(WJC 8/17/97 GJ, pgs. 106-108; H.Doc. 105-311, pgs. 558-560)
As the President testified before the grand jury, he maintained
that he was being truthful with his aides. (Exhibit 20) He stated that
when he spoke to them, he was very careful with his wording. The
President stated that he wanted his statement regarding ``sexual
relations'' to be literally true because he was only referring to
intercourse.
However, recall that John Podesta said that the President denied
sex ``in any way whatsoever'' ``including oral sex.'' The President
told Mr. Podesta, Mr. Bowles, Ms. Williams, and Harold Ickes that he
did not have a ``sexual relationship'' with that woman.
Importantly, seven days after the President's grand jury
appearance, the White House issued a document entitled, ``Talking
Points January 24, 1998.'' (Chart W; Exhibit 16) This ``Talking
Points'' document outlines proposed questions that the President may be
asked. It also outlines suggested answers to those questions. The
``Talking Points'' purport to state the President's view of sexual
relations and his view of the relationship with Monica Lewinsky.
(Exhibit 17)
The ``Talking Points'' state as follows:
Q. What acts does the President believe constitute a sexual
relationship?
A. I can't believe we're on national television discussing this. I
am not about to engage in an ``act-by-act'' discussion of what
constitutes a sexual relationship.
Q. Well, for example, Ms. Lewinsky is on tape indicating that the
President does not believe oral sex is adultery. Would oral sex, to the
President, constitute a sexual relationship?
A. Of course it would.
The President's own talking points refute the President's ``literal
truth'' argument.
Effect of the President's Conduct
Some ``experts'' have questioned whether the President's deportment
affects his office, the government of the United States or the dignity
and honor of the country.
Our founders decided in the Constitutional Convention that one of
the duties imposed upon the President is to ``take care that the laws
be faithfully executed.'' Furthermore, he is required to take an oath
to ``Preserve, protect and defend the Constitution of the United
States.'' Twice this President stood on the steps of the Capitol,
raised his right hand to God and repeated that oath.
The Fifth Amendment to the Constitution of the United States
provides that no person shall ``be deprived of life, liberty or
property without due process of law.''
The Seventh Amendment insures that in civil suits ``the right of
trial by jury shall be preserved.''
Finally, the Fourteenth Amendment guarantees due process of law and
the equal protection of the laws.
The Effect on Ms. Jones' Rights
Paula Jones is an American citizen, just a single citizen who felt
that she had suffered a legal wrong. More important, that legal wrong
was based upon the Constitution of the United States. She claimed
essentially that she was subjected to sexual harassment, which, in
turn, constitutes discrimination on the basis of gender. The case was
not brought against just any citizen, but against the President of the
United States, who was under a legal and moral obligation to preserve
and protect Ms. Jones' rights. It is relatively simple to mouth high-
minded platitudes and to prosecute vigorously right violations by
someone else. It is, however, a test of courage, honor and integrity to
enforce those rights against yourself. The President failed that test.
As a citizen, Ms. Jones enjoyed an absolute constitutional right to
petition the Judicial Branch of government to redress that wrong by
filing a lawsuit in the United States District Court, which she did. At
this point she became entitled to a trial by jury if she chose, due
process of law and the equal protection of the laws no matter who the
defendant was in her suit. Due process contemplates that right to a
full and fair trial, which, in turn, means the right to call and
question witnesses, to cross-examine adverse witnesses and to have her
case decided by an unbiased and fully informed jury. What did she
actually get? None of the above.
On May 27, 1997, the United States Supreme Court ruled in a nine to
zero decision that, ``like every other citizen,'' Paula Jones ``has a
right to an orderly disposition of her claims.`` In accordance with the
Supreme Court's decision, United States District Judge Susan Webber
Wright ruled on December 11, 1997, that Ms. Jones was entitled to
information regarding state or federal employees with whom the
President had sexual relations from May, 1986 to the present. Judge
Wright had determined that the information was reasonably calculated to
lead to the discovery of admissible evidence. Six days after this
ruling, the President filed an answer to Ms. Jones' Amended Complaint.
The President's Answer stated: ``President Clinton denies that he
engaged in any improper conduct with respect to plaintiff or any other
woman.''
Ms. Jones' right to call and depose witnesses was thwarted by
perjurious and misleading affidavits and motions; her right to elicit
testimony from adverse witnesses was compromised by perjury and false
and misleading statements under oath. As a result, had a jury tried the
case, it would have been deprived of critical information.
That result is bad enough, but it reaches constitutional
proportions when denial of the civil rights is directed by the
President of the United States who twice took an oath to preserve,
protect and defend those rights. But we now know what the ``sanctity of
an oath'' means to the President.
The Effect on the Office of President
Moreover, the President is the spokesman for the government and the
people of the United States concerning both domestic and foreign
matters. His honesty and integrity, therefore, directly influence the
credibility of this country. When, as here, that spokesman is guilty of
a continuing pattern of lies, misleading statements, and deceits over a
long period of time, the believability of any of his pronouncements is
seriously called into question. Indeed, how can anyone in or out of our
country any longer believe anything he says? And what does that do to
confidence in the honor and integrity of the United States?
Make no mistake, the conduct of the President is inextricably bound
to the welfare of the people of the United States. Not only does it
affect economic and national defense, but even more directly, it
affects the moral and law-abiding fibre of the commonwealth, without
which no nation can survive. When, as here, that conduct involves a
pattern of abuses of power, of perjury, of deceit, of obstruction of
justice and of the Congress, and of other illegal activities, the
resulting damage to the honor and respect due to the United States is,
of necessity, devastating.
The Effect on the System
Again: there is no such thing as non-serious lying under oath.
Every time a witness lies, that witness chips a stone from the
foundation of our entire legal system. Likewise, every act of
obstruction of justice, of witness tampering or of perjury adversely
affects the judicial branch of government like a pebble tossed into a
lake. You may not notice the effect at once, but you can be certain
that the tranquility of that lake has been disturbed. And if enough
pebbles are thrown into the water, the lake itself may disappear. So
too with the truth-seeking process of the courts. Every unanswered and
unpunished assault upon it has its lasting effect and given enough of
them, the system itself will implode.
That is why two women who testified before the Committee had been
indicted, convicted and punished severely for false statements under
oath in civil cases. And that is why only recently a federal grand jury
in Chicago indicted four former college football players because they
gave false testimony under oath to a grand jury. Nobody suggested that
they should not be charged because their motives may have been to
protect their careers and family. And nobody has suggested that the
perjury was non-serious because it involved only lies about sports;
i.e., betting on college football games.
Disregard of the Rule of Law
Apart from all else, the President's illegal actions constitute an
attack upon and utter disregard for the truth, and for the rule of law.
Much worse, they manifest an arrogant disdain not only for the rights
of his fellow citizens, but also for the functions and the integrity of
the other two co-equal branches of our constitutional system. One of
the witnesses that appeared earlier likened the government of the
United States to a three-legged stool. The analysis is apt, because the
entire structure of our country rests upon three equal supports: the
Legislative, the Judicial, and the Executive. Remove one of those
supports, and the State will totter. Remove two and the structure will
collapse altogether.
Effect on the Judicial Branch
The President mounted a direct assault upon the truth-seeking
process which is the very essence and foundation of the Judicial
Branch. Not content with that, though, Mr. Clinton renewed his lies,
half-truths and obstruction to this Congress when he filed his answers
to simple requests to admit or deny. In so doing, he also demonstrated
his lack of respect for the constitutional functions of the Legislative
Branch.
Actions do not lose their public character merely because they may
not directly affect the domestic and foreign functioning of the
Executive Branch. Their significance must be examined for their effect
on the functioning of the entire system of government. Viewed in that
manner, the President's actions were both public and extremely
destructive.
The Conduct Charged Warrants Conviction and Removal
The Articles state offenses that warrant the President's conviction
and removal from office. The Senate's own precedents establish that
perjury and obstruction warrant conviction and removal from office.
Those same precedents establish that the perjury and obstruction need
not have any direct connection to the officer's official duties.
Precedents
In the 1980s, the Senate convicted and removed from office three
federal judges for making perjurious statements. Background and History
of Impeachment Hearings Before the Subcomm. On the Constitution of the
House Comm. on the Judiciary, 105th Cong., 2nd Sess. at 190-193 (Comm.
Print 1998), (Testimony of Charles Cooper) (``Cooper Testimony'')
Although able counsel represented each judge, none of them argued that
perjury or making false statements are not impeachable offenses. Nor
did a single Congressman or Senator, in any of the three impeachment
proceedings, suggest that perjury does not constitute a high crime and
misdemeanor. Finally, in the cases of Judge Claiborne and Judge Nixon,
it was undisputed that the perjury was not committed in connection with
the exercise of the judges' judicial powers.
Judge Nixon
In 1989, Judge Walter L. Nixon, Jr., was impeached, convicted, and
removed from office for committing perjury. Judge Nixon's offense
stemmed from his grand jury testimony and statements to federal
officers concerning his intervention in the state drug prosecution of
Drew Fairchild, the son of Wiley Fairchild, a business partner of Judge
Nixon's.
Although Judge Nixon had no official role or function in Drew
Fairchild's case (which was assigned to a state court judge), Wiley
Fairchild had asked Judge Nixon to help out by speaking to the
prosecutor. Judge Nixon did so, and the prosecutor, a long-time friend
of Judge Nixon's, dropped the case. When the FBI and the Department of
Justice interviewed Judge Nixon, he denied any involvement whatsoever.
Subsequently, a federal grand jury was empaneled and Judge Nixon again
denied his involvement before that grand jury.
After a lengthy criminal prosecution, Judge Nixon was convicted on
two counts of perjury before the grand jury and sentenced to five years
in prison on each count. Not long thereafter, the House impeached Judge
Nixon by a vote of 417 to 0. The first article of impeachment charged
him with making the false or misleading statement to the grand jury
that he could not ``recall'' discussing the Fairchild case with the
prosecutor. The second article charged Nixon with making affirmative
false or misleading statements to the grand jury that he had ``nothing
whatsoever officially or unofficially to do with the Drew Fairchild
case.'' The third article alleged that Judge Nixon made numerous false
statements (not under oath) to federal investigators prior to his grand
jury testimony. See 135 Cong. Rec. H1802-03.
The House unanimously impeached Judge Nixon, and the House
Managers' Report expressed no doubt that perjury is an impeachable
offense:
``It is difficult to imagine an act more subversive to the legal
process than lying from the witness stand. A judge who violates his
testimonial oath and misleads a grand jury is clearly unfit to remain
on the bench. If a judge's truthfulness cannot be guaranteed, if he
sets less than the highest standard for candor, how can ordinary
citizens who appear in court be expected to abide by their testimonial
oath?''
House of Representatives' Brief in Support of the Articles of
Impeachment at 59 (1989). House Manager Sensenbrenner addressed the
question even more directly:
``There are basically two questions before you in connection with
this impeachment. First, does the conduct alleged in the three articles
of impeachment state an impeachable offense? There is really no debate
on this point. The articles allege misconduct that is criminal and
wholly inconsistent with judicial integrity and the judicial oath.
Everyone agrees that a judge who lies under oath, or who deceives
Federal investigators by lying in an interview, is not fit to remain on
the bench.''
135 Cong. Rec. S14,497 (Statement of Rep. Sensenbrenner)
The Senate agreed, overwhelmingly voting to convict Judge Nixon of
perjury on the first two articles (89-8 and 78-19, respectively). As
Senator Carl Levin explained:
``The record amply supports the finding in the criminal trial that
Judge Nixon's statements to the grand jury were false and misleading
and constituted perjury. Those are the statements cited in articles I
and II and it is on those articles that I vote to convict Judge Nixon
and remove him from office.''
135 Cong. Rec. S14,637 (Statement of Sen. Levin).
Judge Hastings
Also in 1989, the House impeached Judge Alcee L. Hastings for,
among other things, committing numerous acts of perjury. The Senate
convicted him, and he was removed from office. Initially, Judge
Hastings had been indicted by a federal grand jury for conspiracy
stemming from his alleged bribery conspiracy with his friend Mr.
William Borders to ``fix'' cases before Judge Hastings in exchange for
cash payments from defendants. Mr. Borders was convicted, but, at his
own trial, Judge Hastings took the stand and unequivocally denied any
participation in a conspiracy with Mr. Borders. The jury acquitted
Judge Hastings on all counts. Nevertheless, the House impeached Judge
Hastings, approving seventeen articles of impeachment, fourteen of
which were for lying under oath at his trial.
The House voted 413 to 3 to impeach. The House Managers' Report
left no doubt that perjury alone is impeachable:
``It is important to realize that each instance of false testimony
charged in the false statement articles is more than enough reason to
convict Judge Hastings and remove him from office. Even if the evidence
were insufficient to prove that Judge Hastings was part of the
conspiracy with William Borders, which the House in no way concedes,
the fact that he lied under oath to assure his acquittal is conduct
that cannot be tolerated of a United States District Judge. To bolster
one's defense by lying to a jury is separate, independent corrupt
conduct. For this reason alone, Judge Hastings should be removed from
public office.''
The House of Representatives' Brief in Support of the Articles of
Impeachment at 127-28 (1989). Representative John Conyers (D-Mich.)
also argued for the impeachment of Judge Hastings:
``[W]e can no more close our eyes to acts that constitute high
crimes and misdemeanors when practiced by judges whose views we approve
than we could against judges whose views we detested. It would be
disloyal . . . to my oath of office at this late state of my career to
attempt to set up a double standard for those who share my philosophy
and for those who may oppose it. In order to be true to our principles,
we must demand that all persons live up to the same high standards that
we demand of everyone else.''
134 Cong. Rec. H6184 (1988) (Statement of Rep. Conyers).
Judge Claiborne
In 1986, Judge Harry E. Claiborne was impeached, convicted, and
removed from office for making false statements under penalties of
perjury. In particular, Judge Claiborne had filed false income tax
returns in 1979 and 1980, grossly understating his income. As a result,
he was convicted by a jury of two counts of willfully making a false
statement on a federal tax return in violation of 26 U.S.C. Sec. 7206
(a). Subsequently, the House unanimously (406-0) approved four articles
of impeachment. The proposition that Claiborne's perjurious personal
income tax filings were not impeachable was never even seriously
considered. As the House Managers explained:
``[T]he constitutional issues raised by the first two Articles of
Impeachment [concerning the filing of false tax returns] are readily
resolved. The Constitution provides that Judge Claiborne may be
impeached and convicted for ``High Crimes and Misdemeanors.'' Article
II, Section 4. The willful making or subscribing of a false statement
on a tax return is a felony offense under the laws of the United
States. The commission of such a felony is a proper basis for Judge
Claiborne's impeachment and conviction in the Senate.''
Proceedings of the United States Senate Impeachment Trial of Judge
Harry E. Claiborne, S. Doc. No. 99-48, at 40 (1986) (Claiborne
Proceedings'') (emphases added).
House Manager Rodino, in his oral argument to the Senate,
emphatically made the same point:
``Honor in the eyes of the American people lies in public officials
who respect the law, not in those who violate the trust that has been
given to them when they are trusted with public office. Judge Harry E.
Claiborne has, sad to say, undermined the integrity of the judicial
branch of Government. To restore that integrity and to maintain public
confidence in the administration of justice, Judge Claiborne must be
convicted on the fourth Article of Impeachment [that of reducing
confidence in the integrity of the judiciary].''
132 Cong. Rec. S15,481 (1986) (Statement of Rep. Rodino).
The Senate agreed. Telling are the words of then-Senator Albert
Gore, Jr. In voting to convict Judge Claiborne and remove him from
office:
``The conclusion is inescapable that Claiborne filed false income
tax returns and that he did so willfully rather than negligently. . . .
Given the circumstances, it is incumbent upon the Senate to fulfill its
constitutional responsibility and strip this man of his title. An
individual who has knowingly falsified tax returns has no business
receiving a salary derived from the tax dollars of honest citizens.
More importantly, an individual quality of such reprehensible conduct
ought not be permitted to exercise the awesome powers which the
Constitution entrusts to the Federal Judiciary.''
Claiborne Proceedings, S. Doc. No. 99-48, at 372 (1986).
Application to the President
To avoid the conclusive force of these recent precedents--and in
particular the exact precedent supporting impeachment for, conviction,
and removal for perjury--the only recourse for the President's
defenders is to argue that a high crime or misdemeanor for a judge is
not necessarily a high crime or misdemeanor for the President. The
arguments advanced in support of this dubious proposition do not
withstand serious scrutiny. (See generally Cooper Testimony, at 193)
The Constitution provides that Article III judges ``shall hold
their Offices during good Behavior, U.S. Const. Art. III, 1. Thus,
these arguments suggest that judges are impeachable for ``misbehavior''
while other federal officials are only impeachable for treason,
bribery, and other high crimes and misdemeanors.
The staff of the House Judiciary Committee in the 1970s and the
National Commission on Judicial Discipline and Removal in the 1990s
both issued reports rejecting these arguments. In 1974, the staff of
the Judiciary Committee's Impeachment Inquiry issued a report which
included the following conclusion:
``Does Article III, Section 1 of the Constitution, which states
that judges `shall hold their Offices during good Behaviour,' limit the
relevance of the ten impeachments of judges with respect to
presidential impeachment standards as has been argued by some? It does
not. The argument is that `good behavior' implies an additional ground
for impeachment of judges not applicable to other civil officers.
However, the only impeachment provision discussed in the Convention and
included in the Constitution is Article II, Section 4, which by its
expressed terms, applies to all civil officers, including judges, and
defines impeachment offenses as `Treason, Bribery, and other high
Crimes and Misdemeanors.' ''
Staff of House Comm. on the Judiciary, 93rd Cong. 2d Sess.,
Constitutional Grounds for Presidential Impeachment (Comm. Print 1974)
(``1974 Staff Report'') at 17.
The National Commission on Judicial Discipline and Removal came to
the same conclusion. The Commission concluded that ``the most plausible
reading of the phrase `during good Behavior' is that it means tenure
for life, subject to the impeachment power. . . . The ratification
debates about the federal judiciary seem to have proceeded on the
assumption that good-behavior tenure meant removal only through
impeachment and conviction.'' National Commission on Judicial
Discipline and Removal, Report of the National Commission on Judicial
Discipline and Removal 17-18 (1993) (footnote omitted).
The record of the 1986 impeachment of Judge Claiborne also argues
against different impeachment standards for federal judges and
presidents. Judge Claiborne filed a motion asking the Senate to dismiss
the articles of impeachment against him for failure to state
impeachable offenses. One of the motion's arguments was that ``[t]he
standard for impeachment of a judge is different than that for other
officers'' and that the Constitution limited ``removal of the judiciary
to acts involving misconduct related to discharge of office.''
Memorandum in Support of Motion to Dismiss the Articles of Impeachment
on the Grounds They Do Not State Impeachable Offenses 4 (hereinafter
cited as ``Claiborne Motion''), reprinted in Hearings Before the Senate
Impeachment Trial Committee, 99th Cong., 2d Sess. 245 (1986)
(hereinafter cited as ``Senate Claiborne Hearings'').
Representative Kastenmeier responded that ``reliance on the term
`good behavior' as stating a sanction for judges is totally misplaced
and virtually all commentators agree that that is directed to affirming
the life tenure of judges during good behavior. It is not to set them
down, differently, as judicial officers from civil officers.'' Id. at
81-82. He further stated that ``[n]or . . . is there any support for
the notion that . . . Federal judges are not civil officers of the
United States, subject to the impeachment clause of article II of the
Constitution.'' Id. at 81.
The Senate never voted on Claiborne's motion. However, the Senate
was clearly not swayed by the arguments contained therein because it
later voted to convict Judge Claiborne. 132 Cong. Rec. S15,760-62
(daily ed. Oct. 9, 1986). The Senate thus rejected the claim that the
standard of impeachable offenses was different for judges than for
presidents.
Moreover, even assuming that presidential high crimes and
misdemeanors could be different from judicial ones, surely the
President ought not be held to a lower standard of impeachability than
judges. In the course of the 1980s judicial impeachments, Congress
emphasized unequivocally that the removal from office of federal judges
guilty of crimes indistinguishable from those currently charged against
the President was essential to the preservation of the rule of law. If
the perjury of just one judge so undermines the rule of law as to make
it intolerable that he remain in office, then how much more so does
perjury committed by the President of the United States, who alone is
charged with the duty ``to take Care that the Laws be faithfully
executed.'' (See generally, Cooper Testimony at 194)
It is just as devastating to our system of government when a
President commits perjury. As the House Judiciary Committee stated in
justifying an article of impeachment against President Nixon, the
President not only has ``the obligation that every citizen has to live
under the law,'' but in addition has the duty ``not merely to live by
the law but to see that law faithfully applied.'' Impeachment of
Richard M. Nixon, President of the United States, H. Rept. No. 93-1305,
93rd Cong., 2d Sess. at 180 (1974). The Constitution provides that he
``shall take Care that the Laws be faithfully executed.'' U.S. Const.
Art. II, Sec. 3. When a President, as chief law enforcement officer of
the United States, commits perjury, he violates this constitutional
oath unique to his office and casts doubt on the notion that we are a
nation ruled by laws and not men.
Perjury and Obstruction Are as Serious as Bribery
Further evidence that perjury and obstruction warrant conviction
and removal comes directly from the text of the Constitution. Because
the Constitution specifically mentions bribery, no one can dispute that
it is an impeachable offense. U.S. Const., Art. II, Sec. 4. Because the
constitutional language does not limit the term, we must take it to
mean all forms of bribery. Our statutes specifically criminalize
bribery of witnesses with the intent to influence their testimony in
judicial proceedings. 18 U.S.C. Sec. 201(b)(3) & (4), (c)(2) & (3). See
also 18 U.S.C. Sec. Sec. 1503 (general obstruction of justice statute),
1512 (witness tampering statute). Indeed, in a criminal case, the
efforts to provide Ms. Lewinsky with job assistance in return for
submitting a false affidavit charged in the Articles might easily have
been charged under these statutes. No one could reasonably argue that
the President's bribing a witness to provide false testimony--even in a
private lawsuit--does not rise to the level of an impeachable offense.
The plain language of the Constitution indicates that it is.
Having established that point, the rest is easy. Bribing a witness
is illegal because it leads to false testimony that in turn undermines
the ability of the judicial system to reach just results. Thus, among
other things, the Framers clearly intended impeachment to protect the
judicial system from these kinds of attacks. Perjury and obstruction of
justice are illegal for exactly the same reason, and they accomplish
exactly the same ends through slightly different means. Simple logic
establishes that perjury and obstruction of justice--even in a private
lawsuit--are exactly the types of other high crimes and misdemeanors
that are of the same magnitude as bribery.
High Crimes and Misdemeanors
Although Congress has never adopted a fixed definition of ``high
crimes and misdemeanors,'' much of the background and history of the
impeachment process contradicts the President's claim that these
offenses are private and therefore do not warrant conviction and
removal. Two reports prepared in 1974 on the background and history of
impeachment are particularly helpful in evaluating the President's
defense. Both reports support the conclusion that the facts in this
case compel the conviction and removal of President Clinton.
Many have commented on the report on ``Constitutional Grounds for
Presidential Impeachment'' prepared in February 1974 by the staff of
the Nixon impeachment inquiry. The general principles concerning
grounds for impeachment set forth in that report indicate that perjury
and obstruction of justice are impeachable offenses. Consider this key
language from the staff report describing the type of conduct which
gives rise to impeachment:
``The emphasis has been on the significant effects of the conduct--
undermining the integrity of office, disregard of constitutional duties
and oath of office, arrogation of power, abuse of the governmental
process, adverse impact on the system of government.''
1974 Staff Report at 26 (emphasis added).
Perjury and obstruction of justice clearly ``undermine the
integrity of office.'' They unavoidably erode respect for the office of
the President. Such offenses obviously involve ``disregard of [the
President's] constitutional duties and oath of office.'' Moreover,
these offenses have a direct and serious ``adverse impact on the system
of government.'' Obstruction of justice is by definition an assault on
the due administration of justice--a core function of our system of
government.
The thoughtful report on ``The Law of Presidential Impeachment''
prepared by the Association of the Bar of the City of New York in
January of 1974 also places a great deal of emphasis on the corrosive
impact of presidential misconduct on the integrity of office:
It is our conclusion, in summary, that the grounds for
``impeachment are not limited to or synonymous with crimes . . .
Rather, we believe that acts which undermine the integrity of
government are appropriate grounds whether or not they happen to
constitute offenses under the general criminal law. In our view, the
essential nexus to damaging the integrity of government may be found in
acts which constitute corruption in, or flagrant abuse of the powers
of, official position. It may also be found in acts which, without
directly affecting governmental processes, undermine that degree of
public confidence in the probity of executive and judicial officers
that is essential to the effectiveness of government in a free
society.''
Association of the Bar of the City of New York, The Law of Presidential
Impeachment, (1974) at 161 (emphasis added). The commission of perjury
and obstruction of justice by a President are acts that without doubt
``undermine that degree of public confidence in the probity of the [the
President] that is essential to the effectiveness of government in a
free society.'' Such acts inevitably subvert the respect for law which
is essential to the well-being of our constitutional system.
That the President's perjury and obstruction do not directly
involve his official conduct does not diminish their significance. The
record is clear that federal officials have been impeached for reasons
other than official misconduct. As set forth above, two recent
impeachments of federal judges are compelling examples. In 1989, Judge
Walter Nixon was impeached, convicted, and removed from office for
committing perjury before a federal grand jury. Judge Nixon's perjury
involved his efforts to fix a state case for the son of a business
partner--a matter in which he had no official role. In 1986, Judge
Harry E. Claiborne was impeached, convicted, and removed from office
for making false statements under penalty of perjury on his income tax
returns. That misconduct had nothing to do with his official
responsibilities.
Nothing in the text, structure, or history of the Constitution
suggests that officials are subject to impeachment only for official
misconduct. Perjury and obstruction of justice--even regarding a
private matter--are offenses that substantially affect the President's
official duties because they are grossly incompatible with his
preeminent duty to ``take care that the laws be faithfully executed.''
Regardless of their genesis, perjury and obstruction of justice are
acts of public misconduct--they cannot be dismissed as understandable
or trivial. Perjury and obstruction of justice are not private matters;
they are crimes against the system of justice, for which impeachment,
conviction, and removal are appropriate.
The record of Judge Claiborne's impeachment proceedings affirms
that conclusion. Representative Hamilton Fish, the ranking member of
the Judiciary Committee and one of the House managers in the Senate
trial, stated that ``[i]mpeachable conduct does not have to occur in
the course of the performance of an officer's official duties. Evidence
of misconduct, misbehavior, high crimes, and misdemeanors can be
justified upon one's private dealings as well as one's exercise of
public office. That, of course, is the situation in this case.'' 132
Cong. Rec. H4713 (daily ed. July 22, 1986).
Judge Claiborne's unsuccessful motion that the Senate dismiss the
articles of impeachment for failure to state impeachable offenses
provides additional evidence that personal misconduct can justify
impeachment. One of the arguments his attorney made for the motion was
that ``there is no allegation . . . that the behavior of Judge
Claiborne in any way was related to misbehavior in his official
function as a judge; it was private misbehavior.'' (Senate Claiborne
Hearings, at 77, Statement of Judge Claiborne's counsel, Oscar
Goodman). (See also Claiborne Motion, at 3)
Representative Kastenmeier responded by stating that ``it would be
absurd to conclude that a judge who had committed murder, mayhem, rape,
or perhaps espionage in his private life, could not be removed from
office by the U.S. Senate.'' (Senate Claiborne Hearings, at 81)
Kastenmeier's response was repeated by the House of Representatives in
its pleading opposing Claiborne's motion to dismiss. (Opposition to
Claiborne Motion at 2)
The Senate did not vote on Judge Claiborne's motion, but it later
voted to convict him. 132 Cong. Rec. S15,760-62 (daily ed. Oct. 9,
1986). The Senate thus agreed with the House that private improprieties
could be, and were in this instance, impeachable offenses.
The Claiborne case makes clear that perjury, even if it relates to
a matter wholly separated from a federal officer's official duties--a
judge's personal tax returns--is an impeachable offense. Judge Nixon's
false statements were also in regard to a matter distinct from his
official duties. In short, the Senate's own precedents establish that
misconduct need not be in one's official capacity to warrant removal.
Conclusion
This is a defining moment for the Presidency as an institution,
because if the President is not convicted as a consequence of the
conduct that has been portrayed, then no House of Representatives will
ever be able to impeach again and no Senate will ever convict. The bar
will be so high that only a convicted felon or a traitor will need to
be concerned.
Experts pointed to the fact that the House refused to impeach
President Nixon for lying on an income tax return. Can you imagine a
future President, faced with possible impeachment, pointing to the
perjuries, lies, obstructions, and tampering with witnesses by the
current occupant of the office as not rising to the level of high
crimes and misdemeanors? If this is not enough, what is? How far can
the standard be lowered without completely compromising the credibility
of the office for all time?
Dated: January 11, 1999.
The United States
House of Representatives
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham.
Managers on the Part of the House
______
APPENDIX
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
Appendix to Trial Memorandum of the Managers Appointed by the U.S.
House of Representatives
Table of Contents
charts
A. The President's Contacts Alone With Lewinsky
B. The President's Telephone Contacts With Lewinsky
C. Lewinsky's Gifts to The President
D. The President's Gifts to Lewinsky
E. 12/5/97 Facsimile Transmission of Witness List in Jones v.
Clinton
F. The December 19, 1997 Subpoena to Lewinsky in Jones v. Clinton
G. December 19, 1997 Activities Following Lewinsky's Receipt of
Subpoena
H. The President's December 23, 1997 Response to Interrogatory No.
10 in Jones v. Clinton
I. The President's December 23, 1997 Response to Interrogatory No.
11 in Jones v. Clinton
J. December 28, 1997, The President's Final Meeting With Lewinsky
and Concealment of Gifts
K. Currie's Cell Phone Records for 12/28/97
L. The President's Statements About Concealing Gifts
M. Lewinsky's Draft Affidavit
N. Lewinsky Final Affidavit dated January 7, 1998 Paragraph 8,
Jones v. Clinton
O. Filing Lewinsky's Affidavit and Motion to Quash (1/14/98-1/17/
98)
P. Mission Accomplished: Lewinsky Signs Her Affidavit and Is Hired
By Revlon in New York (1/5/98-1/9/98)
Q. The President's Involvement With Lewinsky's Job Search
R. Jordan's Testimony About His Pre-Witness List Job Search Efforts
S. Activity Following The President's Deposition (1/17/98-1/19/98)
T. The President's Statements to Currie 1/18/98
U. The President's Denial of Sexual Relations
V. The President's 1/21/98 Denial of Sexual Relations to
Blumenthal, Podesta and Morris
W. The White House 1/24/98 ``Talking Points''
X. The President's Claims That He Was Truthful With Aides
Y. The Three Options of a Grand Jury Witness
Z. The President's Grand Jury ``Statement''
______
[Chart A]
THE PRESIDENT'S CONTACTS ALONE WITH LEWINSKY
Lewinsky White House Employee (7/95-4/96)
1995
11/15/95 (Wed): The President meets alone twice with Lewinsky in Oval
Office study and hallway outside the Oval Office. (Sexual
Encounter)
11/17/95 (Fri): The President meets alone twice with Lewinsky in The
President's private bathroom outside the Oval Office study.
(Sexual Encounter)
12/5/95 (Tues): The President meets alone with Lewinsky in the Oval
Office and study. (No Sexual Encounter)
12/31/95 (Sun): The President meets alone with Lewinsky in the Oval
Office and Oval Office study. (Sexual Encounter)
1996
1/7/96 (Sun): The President meets alone with Lewinsky in the bathroom
outside the Oval Office study. (Sexual Encounter)
1/21/96 (Sun): The President meets alone with Lewinsky in the hallway
outside the Oval Office study. (Sexual Encounter)
2/4/96 (Sun): The President meets alone with Lewinsky in the Oval
Office study and in the adjacent hallway. (Sexual
Encounter)
2/19/96 (Mon): The President meets alone with Lewinsky in the Oval
Office. (No Sexual Encounter)
3/31/96 (Sun): The President meets alone with Lewinsky in hallway
outside the Oval Office. (Sexual Encounter)
4/7/96 (Sun): The President meets alone with Lewinsky in the hallway
outside the Oval Office study and in the Oval Office study.
(Sexual Encounter)
1997
2/28/97 (Fri): The President meets alone with Lewinsky in the Oval
Office private bathroom. (Sexual Encounter)
3/29/97 (Sat): The President meets alone with Lewinsky in the Oval
Office study. (Sexual Encounter)
5/24/97 (Sat): The President meets alone with Lewinsky in the Oval
Office dining room, study and hallway. (No Sexual
Encounter)
7/4/97 (Fri): The President meets alone with Lewinsky in the Oval
Office study and hallway. (No Sexual Encounter)
7/14/97 (Mon): The President meets alone with Lewinsky in Heinreich's
office. (No Sexual Encounter)
7/24/97 (Sat): The President meets alone with Lewinsky in the Oval
Office study. (No Sexual Encounter)
8/16/97 (Sat): The President meets alone with Lewinsky in the Oval
Office study. (Sexual Encounter)
10/11/97 (Sat): The President meets alone with Lewinsky in the Oval
Office study. (No Sexual Encounter)
11/13/97 (Thurs): The President meets alone with Lewinsky in the Oval
Office study. (No Sexual Encounter)
12/6/97 (Sat): The President meets alone with Lewinsky in the Oval
Office study. (No Sexual Encounter)
12/28/97 (Sun): The President meets alone with Lewinsky in the Oval
Office study. (No Sexual Encounter)
______
[Chart B]
THE PRESIDENT'S TELEPHONE CONTACTS WITH LEWINSKY
1/7/96 (Sun): Conversation--first call to ML's home.
1/7/96 (Sun): Conversation--ML at office.
1/15 or 1/16/96 (Mon or Tue): Conversation, approx. 12:30 a.m.--ML at
home.*
Approx. 1/28/96 (Sun): Caller ID on ML's office phone indicated POTUS
call.
1/30/96 (Tues): Conversation--during middle of workday at ML's office.
2/4/96 (Sun): Conversations--ML at office--multiple calls.
2/7 or 2/8/96 (Wed or Thur): Conversation--ML at home.
2/8 or 2/9/96 (Thur or Fri): Conversation--ML at home.*
2/19/96 (Mon): Conversation--ML at home.
Approx. 2/28 or 3/5/96: Conversation--approx. 20 min.--after chance
meeting in hallway--ML at home.
3/26/96 (Tues): Conversation--approx. 11 a.m.--ML at office.
3/29/96: Conversation--ML at office--approx. 8 p.m.--invitation to
movie.
3/31/96: Conversation--ML at office--approx. 1 p.m.--Pres. ill.
4/7/96 (Easter Sunday): Conversation----ML at home.
4/7/96 (Easter Sunday): Conversation--ML at home--why ML left.
4/12/96 (Fri): Conversation--ML at home--daytime.
4/12 or 4/13/96 (Fri or Sat): Conversation--ML at home--after midnight.
4/22/96 (Mon): Conversations--job talk--ML at home.
4/29 or 4/30/96 (Mon or Tues): Message--after 6:30 a.m.
5/2/96 (Thur): Conversation--ML at home.*
5/6/96 (Mon): Possible phone call.
5/16/96 (Thur): Conversation--ML at home.
5/21/96 (Tues): Conversation--ML at home.*
5/31/96 (Fri): Message.
6/5/96 (Wed): Conversation--ML at home--early evening.
6/23/96 (Sun): Conversation--ML at home.*
7/5 or 7/6/96 (Fri or Sat): Conversation--ML at home.*
7/19/96 (Fri): Conversation--6:30 a.m.--ML at home.*
7/28/96 (Sun): Conversation--ML at home.
8/4/96 (Sun): Conversation--ML at home.*
8/24/96 (Sat): Conversation--ML at home.*
9/5/96 (Thur): Conversation--Pres. In Fla--ML at home.*
9/10/96 (Tues): Message.
9/30/96 (Mon): Conversation.*
10/22/96 (Tues): Conversation--ML at home.*
10/23 or 10/24/96 (early am): Conversation--ML at home.
12/2/96 (Mon): Conversation--approx. 10-15 min.--ML at home.
12/2/96 (Mon): Conversation--later that evening--ML at home--approx.
10:30 p.m.--Pres fell asleep.*
12/18/96 (Wed): Conversation--approx. 5 min.--10:30 p.m.--ML at home.
12/30/96 (Mon): Message.
1/12/97 (Sun): Conversation--job talk--ML at home.*
2/8/97 (Sat): Conversation--ML at home--mid-day--11:30-12:00.
2/8/97 (Sat): Conversation--job talk--1:30 or 2:00 p.m.--ML at home.*
3/12/97 (Wed): Conversation--three minutes--ML at work.
4/26/97 (Sat): Conversation--late afternoon--20 min.--ML at home.
5/17/97 (Sat): Conversations--multiple calls.
5/18/97 (Sun): Conversations--multiple calls.
7/15/97 (Tues): Conversation--ML at home.
8/1/97 (Fri): Conversation.
9/30/97 (Tues): Conversation.*
10/9 or 10/10/97 (Thur or Fri): Conversation--long, from 2 or 2:30 a.m.
until 3:30 or 4:00 a.m.--job talk--argument--ML at home.
10/23/97 (Thur): Conversation--ML at home--end b/c HRC.
10/30/97 (Thur): Conversation--ML at home--interview prep.
11/12/97 (Wed): Conversation--discuss re: ML visit.*
12/6/97 (Sat): Conversation--approx. 30 min--ML at home.
12/17 or 12/18/97 (Wed or Thur): Conversation--b/t 2:00 a.m. and 3:00
a.m.--ML at home--witness list.
1/5/98 (Mon): Conversation.
*Conversation that involved and may have involved phone sex.
[Chart C]
LEWINSKY GIFTS TO THE PRESIDENT
10/24/95: Lewinsky (before the sexual relationship began) gives her
first gift to The President of a matted poem given by her
and other White House interns to commemorate ``National
Boss' Day''. It is the only gift the President sent to the
archives instead of keeping.
11/20/95: Lewinsky gives The President a Zegna necktie.
3/31/96: Lewinsky gives The President a Hugo Boss Tie.
Christmas 1996: Lewinsky gives The President a Sherlock Homes game and
a glow in the dark frog.
Before 8/16/96: Lewinsky gives The President a Zegna necktie and a t-
shirt from Bosnia.
Early 1997: Lewinsky gives The President Oy Ve, a small golf book, golf
balls, golf tees, and a plastic pocket frog.
3/97: Lewinsky gives The President a care package after he injured his
leg including a metal magnet with The Presidential seal for
his crutches, a license plate with ``Bill'' for his
wheelchair, and knee pads with The Presidential seal.
3/29/97: Lewinsky gives The President her personal copy of Vox, a book
about phone sex, a penny medallion with the heart cut out,
a framed Valentine's Day ad, and a replacement for the Hugo
Boss tie that had the bottom cut off.
5/24/97: Lewinsky gives The President a Banana Republic casual shirt
and a puzzle on gold mysteries.
7/14/97: Lewinsky gives The President a wooden B, with a frog in it
from Budapest.
Before 8/16/97: Lewinsky gives The President The Notebook.
8/16/97: Lewinsky gives The President an antique book on Peter the
Great, the card game ``Royalty'', and a book, Disease and
Misrepresentation.
10/21/97 or 10/22/97: Lewinsky gives The President a Calvin Klein tie,
and pair of sunglasses.
10/97: Lewinsky gives The President a package Before filled with
Halloween-related items, such as a Halloween pumpkin lapel
pin, a wooden letter opener with a frog on the handle, and
a plastic pumpkin filled with candy.
11/13/97: Lewinsky gives The President an antique paperweight that
depicted the White House.
12/6/97: Lewinsky gives The President Our Patriotic President: His Life
in Pictures, Anecdotes, Sayings, Principles and Biography;
an antique standing cigar holder; a Starbucks Santa Monica
mug; a Hugs and Kisses box; and a tie from London.
12/28/97: Lewinsky gives The President a hand-painted Easter Egg and
``gummy boobs'' from Urban Outfitters.
1/4/98: Lewinsky gives Currie a package with her final gift to The
President containing a book entitled The Presidents of the
United States and a love note inspired by the movie
Titanic.
______
[Chart D]
THE PRESIDENT'S GIFTS TO LEWINSKY
12/5/95: The President gives Lewinsky an autographed photo of himself
wearing the Zenga necktie she gave him.*
2/4/96: The President gives Lewinsky a signed ``State of the Union''
Address.*
3/31/96: The President gives Lewinsky cigars.
2/28/97: The President gives Lewinsky a hat pin*, ``Davidoff'' cigars,
and the book the Leaves of Grass by Walt Whitman as belated
Christmas gifts.
The President gives Lewinsky a gold brooch.*
The President gives Lewinsky an Annie Lennox compact disk.
The President gives Lewinsky a cigar.
7/24/97: The President gives Lewinsky an antique flower pin in a wooden
box, a porcelain object d'art, and a signed photograph of
the President and Lewinsky.*
Early 9/97: The President brings Lewinsky several Black Dog items,
including a baseball cap*, 2 T-shirts*, a hat and a dress.*
12/28/97: The President gives Lewinsky the largest number of gifts
including:
1. a large Rockettes blanket,*
2. a pin of the New York skyline,*
3. a marblelike bear's head from Vancouver,*
4. a pair of sunglasses,*
5. a small box of cherry chocolates,
6. a canvas bag from the Black Dog,*
7. a stuffed animal wearing a T-shirt from the Black Dog.*
(*Denotes those items Lewinsky produced to the OIC on 7/29/98).
[Chart F]
LEWINSKY SUBPOENA
Jones v. Clinton
december 19, 1997
The Jones v. Clinton subpoena to Lewinsky called for:
(1) Her testimony on January 23, 1998 at 9:30 a.m.;
(2) 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;''
and
(3) ``Every document constituting or containing communications between
you and Defendant Clinton, including letters, cards, notes,
memoranda and all telephone records.''
______
[Chart G]
DECEMBER 19, 1997
(Friday)
Lewinsky is Served with a Subpoena in Jones v. Clinton
1:47-1:48 p.m.: Lewinsky telephones Jordan's office.
3:00-4:00 p.m.: Lewinsky is served with a subpoena in Jones v. Clinton.
--: Lewinsky telephones Jordan immediately about subpoena.
3:51-3:52 p.m.: Jordan telephones The President and talks to Debra
Schiff.
4:17-4:20 p.m.: Jordan telephones White House Social Office.
4:47 p.m.: Lewinsky meets Jordan and requests that Jordan notify The
President about her subpoena.
5:01-5:05 p.m.: The President telephones Jordan; Jordan notifies The
President about Lewinsky's subpoena.
5:06 p.m.: Jordan telephones attorney Carter to represent Lewinsky.
Later that Evening: The President meets alone with Jordan at the White
House.
______
[Chart H]
DECEMBER 23, 1997
Jones v. Clinton Interrogatory No. 10
Interrogatory No. 10: Please state the name, address, and telephone
number of each and every individual (other than Hillary Rodham Clinton)
whom you had sexual relations when you held any of the following
positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
(Court modifies scope to incidents from May 8, 1986 to the present
involving state or federal employees.)
Supplemental Response to Interrogatory No. 10 (as modified by
direction of the Court): None.
______
[Chart I]
DECEMBER 23, 1997
Jones v. Clinton Interrogatory No. 11
Interrogratory No. 11: Please state the name, address, and
telephone number of each and every individual (other than Hillary
Rodham Clinton) with whom you sought to have sexual relations, when you
held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
(Court modifies scope to incidents from May 8, 1986 to the present
involving state or federal employees.)
Supplemental Response to Interrogatory No. 11 (as modified by
direction of the Court): None.
______
[Chart J]
DECEMBER 28, 1997
(Sunday)
The President's Final Meeting with Lewinsky and The Concealment of the
Gifts to Lewinsky
8:16 a.m.: Lewinsky meets The President at the White House at Currie's
direction.
The President gives Lewinsky numerous gifts.
The President and Lewinsky discuss the subpoena, calling for,
among other things, the hat pin. The President acknowledges
``that sort of bothered [him] too.''
Lewinsky states to The President: ``Maybe I should put the
gifts away outside my house somewhere or give them to
someone, maybe Betty [Currie].''
3:32 p.m.: Currie telephones Lewinsky at home from Currie's cell phone.
``I understand you have something to give me.'' or
``The President said you have something to give me.''
Later that Day: Currie picks up gifts from Lewinsky.
[Chart L]
THE PRESIDENT'S STATEMENTS ABOUT CONCEALING GIFTS
12/28/97
``[Lewinsky]: And then at some point I said to him [The President],
`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.''--(Lewinsky Grand Jury 8/6/98 Tr. 152)
______
[Chart M]
AFFIDAVIT OF JANE DOE #
1. My name is Jane Doe # . I am 24 years old and I currently reside
at 700 New Hampshire Avenue, NW., Washington, DC 20037.
2. On December 19, 1997, I was served with a subpoena from the
plaintiff to give a deposition and to produce documents in the lawsuit
filed by Paula Corbin Jones against President William Jefferson Clinton
and Danny Ferguson.
3. I can not fathom any reason that the plaintiff would seek
information from me for her case.
4. I have never met Ms. Jones, nor do I have any information
regarding the events she alleges occurred at the Excelsior Hotel on May
8, 1991 or any other information concerning any of the allegations in
her case.
5. I worked at the White House in the summer of 1995 as a White
House intern. Beginning in December, 1995, I worked in the Office of
Legislative Affairs as a staff assistant for correspondence. In April,
1996, I accepted a job as assistant to the Assistant Secretary for
Public Affairs at the U.S. Department of Defense. I maintained that job
until December 26, 1997. I am currently unemployed but seeking a new
job.
6. In the course of my employment at the White House, I met
President Clinton on several occasions. I do not recall ever being
alone with the President, although it is possible that while working in
the White House Office of Legislative Affairs I may have presented him
with a letter for his signature while no one else was present. This
would have lasted only a matter of minutes.
7. I have the utmost respect for the President who has always
behaved appropriately in my presence.
8. I have never had a sexual relationship with the President, he
did not propose that we have a sexual relationship, he did not offer me
employment or other benefits in exchange for a sexual relationship, he
did not deny me employment or other benefits for rejecting a sexual
relationship. I do not know of any other person who had a sexual
relationship with the President, was offered employment or other
benefits in exchange for a sexual relationship, or was denied
employment or other benefits for rejecting a sexual relationship. The
occasions that I saw the President, with crowds of other people, after
I left my employment at the White House in April, 1996 related to
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 all of these occasions.
9. Since 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, I asked my attorney to provide this affidavit to
plaintiff's counsel. Requiring my deposition in this matter would cause
unwarranted attorney's fees and costs, disruption of my life,
especially since I am looking for employment, and constitute an
invasion of my right to privacy.
I declare under the penalty of perjury that the foregoing is true
and correct.
Monica S. Lewinsky.
DISTRICT OF COLUMBIA, ss:
Monica S. Lewinsky, being first duly sworn on oath according to
law, deposes and says that she has read the foregoing Affidavit of Jane
Doe # by her subscribed, that the matters stated herein are true to the
best of her information, knowledge and belief.
Monica S. Lewinsky.
Subscribed and sworn to before me this ______ day of __________,
1998.
__________________________
Notary Public, D.C.
My Commission expires: ________
______
[Chart N]
FINAL AFFIDAVIT OF JANE DOE #6 [LEWINSKY]
1/7/98
8. I have never had a sexual relationship with the President, he did
not propose that we have a sexual relationship, he did not
offer me employment or other benefits in exchange for a
sexual relationship, he did not deny me employment or other
benefits for rejecting a sexual relationship. I do not know
of any other person who had a sexual relationship with the
President, was offered employment or other benefits in
exchange for a sexual relationship, or was denied
employment or other benefits for rejecting a sexual
relationship. 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.
______
[Chart O]
LEWINSKY'S AFFIDAVIT GETS FILED
(1/14/98-1/17/98)
january 14, 1998 (wednesday)
7:45 p.m.: Bennett's firm (Sexton) leaves Carter telephone message.
--: Carter faxes signed affidavit to Bennett's firm.
january 15, 1998 (thursday)
9:17 a.m.: Sexton leaves Carter telephone message.
12:59 p.m.: Sexton leaves Carter telephone message.
--: Currie called by Newsweek.
--: Lewinsky drives Currie to meet Jordan.
--: Sexton telephones Carter: ``STILL ON TIME?''
--: Carter telephones Court Clerk for Saturday (1/17/98) Filing of
Affidavit and motion to quash.
january 16, 1998 (friday)
2 a.m. (Approx.): Carter completes motion to quash Lewinsky's
deposition.
Carter sends by overnight mail motion to quash and affidavit to
Bennett's firm and to the Court.
11:30 a.m.: Sexton message to Carter: ``Please call.''
january 17, 1998 (saturday)
--: Lewinsky Affidavit is submitted to the Court.
--: The President is deposed.
______
[Chart P]
MISSION ACCOMPLISHED: LEWINSKY SIGNS AFFIDAVIT AND GETS A NEW YORK JOB
(1/5/98-1/9/98)
january 5, 1998
Lewinsky meets with attorney Carter for an hour; Carter drafts an
Affidavit for Lewinsky in an attempt to avert her
deposition testimony in Jones v. Clinton scheduled for
January 23, 1998.
Lewinsky telephones Currie stating that she needs to speak to the
President about an important matter; specifically that she
was anxious about something she needed to sign--an
Affidavit.
The President returns Lewinsky's call; Lewinsky mentions the Affidavit
she'd be signing; Lewinsky offers to show the Affidavit to
The President who states that he doesn't need to see it
because he has already seen about fifteen others.
january 6, 1998
11:32 a.m.: Carter pages Lewinsky: ``Please call Frank Carter.''
Lewinsky meets Carter and receives draft Affidavit.
2:08-2:10 p.m.: Jordan calls Lewinsky. Lewinsky delivers draft
Affidavit to Jordan.
3:14 p.m.: Carter again pages Lewinsky: ``Frank Carter at [telephone
number] will see you tomorrow morning at 10:00 in my
office.''
3:26-3:32 p.m.: Jordan telephones Carter.
3:38 p.m.: Jordan telephones Nancy Hernreich, Deputy Assistant to The
President.
3:48 p.m.: Jordan telephones Lewinsky.
3:49 p.m.: Jordan telephones Lewinsky to discuss draft Affidavit. Both
agree to delete implication that she had been alone with
The President.
4:19-4:32 p.m.: The President telephones Jordan.
4:32 p.m.: Jordan telephones Carter.
4:34-4:37 p.m.: Jordan again telephones Carter.
5:15-5:19 p.m.: Jordan telephones White House.
9:26-9:29 a.m.: Jordan telephones Carter.
10:00 a.m.: Lewinsky signs false Affidavit at Carter's Office.
--: Lewinsky delivers signed Affidavit to Jordan.
11:58 a.m.-12:09 p.m.: Jordan telephones the White House.
5:46-5:56 p.m.: Jordan telephones the White House (Hernreich's Office).
6:50-6:54 p.m.: Jordan telephones the White House and tells The
President that Lewinsky signed an Affidavit.
january 8, 1998
9:21 a.m.: Jordan telephones the White House Counsel's Office.
9:21 a.m.: Jordan telephones the White House.
--: Lewinsky interviews in New York at MacAndrews & Forbes Holdings,
Inc. (MFH)
11:50-11:51 a.m.: Lewinsky telephones Jordan.
3:09-3:10 p.m.: Lewinsky telephones Jordan.
4:48-4:53 p.m.: Lewinsky telephones Jordan and advises that the New
York MFH Interview went ``Very Poorly.''
4:54 p.m.: Jordan telephones Ronald Perelman in New York, CEO of Revlon
(subsidiary of MFH) ``to make things happen . . . if they
could happen.''
4:56 p.m.: Jordan telephones Lewinsky stating, ``I'm doing the best I
can to help you out.''
6:39 p.m.: Jordan telephones White House Counsel's Office (Cheryl
Mills), possibly about Lewinsky.
Evening: Revlon in New York telephones Lewinsky to set up a follow-up
interview.
9:02-9:03 p.m.: Lewinsky telephones Jordan about Revlon interview in
New York.
january 9, 1998
--: Lewinsky interviews in New York with Senior V.P. Seidman of
MacAndrews & Forbes and two Revlon individuals.
Lewinsky offered Revlon job in New York and accepts.
1:29 p.m.: Lewinsky telephones Jordan.
4:14 p.m.: Lewinsky telephones Jordan to say that Revlon offered her a
job in New York.
Jordan notifies Currie: ``Mission Accomplished'' and requests she
tell The President.
Jordan notifies The President of Lewinsky's New York job offer. The
President replies ``Thank you very much.''
4:37 p.m.: Lewinsky telephones Carter.
5:04 p.m.: Lewinsky telephones Jordan.
5:05 p.m.: Lewinsky telephones Currie.
5:08 p.m.: The President telephones Currie.
5:09-5:11 p.m.: Lewinsky telephones Jordan.
5:12 p.m.: Currie telephones The President.
5:18-5:20 p.m.: Jordan telephones Lewinsky.
5:21-5:26 p.m.: Lewinsky telephones Currie.
______
[Chart Q]
THE PRESIDENT'S INVOLVEMENT WITH LEWINSKY JOB SEARCH
``Q: Why are you trying to tell someone at the White House that this
has happened [Carter had been fired]?
[Jordan]: Thought they had a right to know.
Q: Why?
[Jordan]: The President asked me to get Monica Lewinsky a job. I got
her a lawyer. The Drudge Report is out and she has new
counsel. I thought that was information that they ought to
have. . . .'' (Jordan Grand Jury 6/9/98 Tr. 45-46)
``Q: Why did you think the President needed to know that Frank Carter
had been replaced?
[Jordan]: Information. He knew that I had gotten her a job, he knew
that I had gotten her a lawyer. Information. He was
interested in this matter. He is the source of it coming to
my attention in the first place. . . .'' (Jordan Grand Jury
6/9/98 Tr. 58-59)
______
[Chart R]
JORDAN'S PRE-WITNESS LIST JOB SEARCH EFFORTS
``[Jordan]: I have no recollection of an early November meeting with
Ms. Monica Lewinsky. I have absolutely no recollection of
it and I have no record of it.'' (Jordan Grand Jury 3/3/98
Tr. 50)
* * * * * * *
``Q: Is it fair to say that back in November getting Monica Lewinsky a
job on any fast pace was not any priority of yours?
[Jordan]: I think that's fair to say.'' (Jordan Grand Jury 5/5/98 Tr.
76)
* * * * * * *
``[Lewinsky]: [Referring to 12/6/97 meeting with the President]. I
think I said that . . . I was supposed to get in touch with
Mr. Jordan the previous week and that things did not work
out and that nothing had really happened yet [on the job
front].
Q: Did the President say what he was going to do?
[Lewinsky]: I think he said he would--you know, this was not sort of
typical of him, to sort of say, `Oh, I'll talk to him. I'll
get on it.' '' (Lewinsky Grand Jury 8/6/98 Tr. 115-116)
* * * * * * *
``Q: But what is also clear is that as of this date, December 11th, you
are clear that at that point you had made a decision that
you would try to make some calls to help get her a job.
[Jordan]: There is no question about that.'' (Jordan Grand Jury 5/5/98
Tr. 95)
______
[Chart S]
January 17, 1998
saturday
4:00 p.m. (approx): THE PRESIDENT finishes testifying under
oath in Jones v. Clinton, et al.
5:19 p.m.: Jordan telephones White House.
5:38 p.m.: THE PRESIDENT telephones Jordan at home.
7:02 p.m.: THE PRESIDENT telephones Currie at home but does
not speak with her.
7:02 p.m.: THE PRESIDENT places a call to Jordan's office.
7:13 p.m.: THE PRESIDENT telephones Currie at home and asks
her to meet with him on Sunday.
January 18, 1998
sunday
6:11 a.m.: Drudge Report Released.
--: The President learns of the Drudge Report and [Tripp]
tapes.
11:49 a.m.: Jordan telephones the White House.
12:30 p.m.: Jordan has lunch with Bruce Lindsey. Lindsey
informs Jordan about the Drudge Report and [Tripp] tapes.
12:50 p.m.: THE PRESIDENT telephones Jordan at home.
1:11 p.m.: THE PRESIDENT telephones Currie at home.
2:15 p.m.: Jordan telephones the White House.
2:55 p.m.: Jordan telephones THE PRESIDENT.
5:00 p.m.: THE PRESIDENT meets with Currie, concerning his
contacts with Lewinsky.
5:12 p.m.: Currie pages Lewinsky: ``Please call Kay at home.''
6:22 p.m.: Currie pages Lewinsky: ``Please call Kay at home.''
7:06 p.m.: Currie pages Lewinsky: ``Please call Kay at home.''
7:19 p.m.: Jordan telephones Cheryl Mills, White House
Counsel's Office.
8:28 p.m.: Currie pages Lewinsky: ``Call Kay.''
10:09 p.m.: Lewinsky telephones Currie at home.
11:02 p.m.: THE PRESIDENT telephones Currie at home and asks
if she reached Lewinsky.
January 19, 1998
monday--martin luther king day
7:02 a.m.: Currie pages Lewinsky: ``Please call Kay at home at
8:00 this morning.''
8:08 a.m.: Currie pages Lewinsky: ``Please call Kay .''
8:33 a.m.: Currie pages Lewinsky: ``Please call Kay at home.''
8:37 a.m.: Currie pages Lewinsky: ``Please call Kay at home.
It's a social call. Thank you.''
8:41 a.m.: Currie pages Lewinsky: ``Kay is at home. Please
call.''
8:43 a.m.: Currie telephones The President from home to say
she has been unable to reach Lewinsky.
8:44 a.m.: Currie pages Lewinsky: ``Please call Kate re:
family emergency.''
8:50 a.m. THE PRESIDENT telephones Currie at home.
8:51 a.m.: Currie pages Lewinsky: ``Msg. From Kay. Please
call, have good news.''
8:56 a.m.: THE PRESIDENT telephones Jordan at home.
10:29 a.m.: Jordan telephones the White House from his office.
10:35 a.m.: Jordan telephones Nancy Hernreich at the White
House.
10:36 a.m.: Jordan pages Lewinsky: ``Please call Mr. Jordan at
[number redacted].''
10:44 a.m.: Jordan telephones Erskine Bowles at the White
House.
10:53 a.m.: Jordan telephones Carter.
10:58 a.m.: THE PRESIDENT telephones Jordan at his office.
11:04 a.m.: Jordan telephones Bruce Lindsey at the White
House.
11:16 a.m.: Jordan pages Lewinsky: ``Please call Mr. Jordan at
[number redacted].''
11:17 a.m.: Jordan telephones Lindsey at the White House.
12:31 p.m.: Jordan telephones the White House from a cellular
phone.
--: Jordan lunches with Carter.
1:45 p.m.: THE PRESIDENT telephones Currie at home.
2:29 p.m.: Jordan telephones the White House from a cellular
phone.
2:44 p.m.: Jordan enters the White House and over the course
of an hour meets with THE PRESIDENT, Erskine Bowles, Bruce
Lindsay, Cheryl Mills, Charles Ruff, Rahm Emanuel and
others.
2:46 p.m.: Carter pages Lewinsky: ``Please call Frank Carter
at [number redacted].''
4:51 p.m.: Jordan telephones Currie at home.
4:53 p.m.: Jordan telephones Carter at home.
4:54 p.m.: Jordan telephones Carter at his office. Carter
informs Jordan that Lewinsky has replaced Carter with a new
attorney.
4:58 p.m.: Jordan telephones Lindsey, White House Counsel's
Office.
4:59 p.m.: Jordan telephones Mills, White House Counsel's
Office.
5:00 p.m.: Jordan telephones Lindsey, White House Counsel's
Office.
5:00 p.m.: Jordan telephones Ruff, White House Counsel's
Office.
5:05 p.m.: Jordan telephones Lindsey, White House Counsel's
Office.
5:05 p.m.: Jordan again telephones Lindsey, White House
Counsel's Office.
5:05 p.m.: Jordan telephones the White House.
5:09 p.m.: Jordan telephones Mills, White House Counsel's
Office.
5:14 p.m.: Jordan telephones Carter concerning his termination
as Lewinsky's attorney.
5:22 p.m.: Jordan telephones Lindsey, White House Counsel's
Office.
5:22 p.m.: Jordan telephones Mills, White House Counsel's
Office.
5:55 p.m.: Jordan telephones Currie at home.
5:56 p.m.: THE PRESIDENT telephones Jordan at his office;
Jordan informs The President that Carter was fired.
6:04 p.m.: Jordan telephones Currie at home.
6:26 p.m.: Jordan telephones Stephen Goodin, an aide to THE
PRESIDENT.
______
[Chart T]
THE PRESIDENT'S POST-DEPOSITION STATEMENTS TO CURRIE
1/18/98
``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.''--(Currie Grand Jury 7/22/98 Tr. 6-7; Currie Grand Jury 1/27/98
Tr. 70-75)
______
[Chart U]
THE PRESIDENT'S DENIALS
1/21/98
``And it was at that point that he gave his account of what had
happened to me [sic] and he said that Monica--and it came very fast. 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 the stalker any more.''--(Blumenthal Grand Jury 6/4/98
Tr. 49)
``And he said, `I feel like a character in a novel. 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. I feel like the character
in the novel Darkness at Noon.'
And I said to him, I said, `When this happened with Monica
Lewinsky, were you alone? He said, `Well, I was within eyesight or
earshot of someone.' ''--(Blumenthal Grand Jury 6/4/98 Tr. 50)
______
[Chart V]
``Q. Okay. Share that with us.
``A. 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--
``Q. Okay.
``A. --that they had not had oral sex''--(John Podesta Grand Jury
6/16/98 Tr. 92)
* * * * * * *
``And I said, `They're just too shocked by this. It's just too new,
it's too raw.' And I said, `And the problem is they're willing to
forgive you [The President] for adultery, but not for perjury or
obstruction of justice or the various other things.' ''--(Dick Morris
Grand Jury 8/18/98 Tr. 10, 12, 20)
* * * * * * *
``And I said, `They're just not ready for it,' meaning the voters.'
And he [The President] said, `Well, we just have to win, then.' ''--
(Dick Morris Grand Jury 8/18/98 Tr. 30)
______
[Chart W]
``TALKING POINTS'' *
January 24, 1998
* * * * * * *
``Q. Well, for example, Ms. Lewinsky is on tape indicating that the
President does not believe oral sex is adultery. Would oral sex, to the
President, constitute a sexual relationship?''
``A. Of course it would.''
* * * * * * *
* Produced by the White House pursuant to OIC Subpoena.
______
[Chart X]
THE PRESIDENT CLAIMS HE WAS TRUTHFUL WITH AIDES
[President]: And so I said to them things that were true about this
relationship. That I used--in the language I used, I said, there's
nothing going on between us. That was true. I said, I have not had sex
with her as I defined it. That was true. And did I hope that I would
never have to be here on this day giving this testimony? Of course.
But I also didn't want to do anything to complicate this matter
further. So I said things that were true. They may have been
misleading, and if they were I have to take responsibility for it, and
I'm sorry.--(The President Grand Jury 8/17/98 Tr. 106)
______
[Chart Y]
GRAND JURY WITNESSES
A person testifying before a federal grand jury has three options
under the law:
(1) To obey the oath and testify to the truth, the whole
truth and nothing but the truth;
(2) To lie;
(3) To assert the Fifth Amendment or another legally
recognized privilege.
______
[Chart Z]
PRESIDENT'S STATEMENT GRAND JURY TESTIMONY
``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 17th, 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 take full responsibility for my actions.
While I will provide the grand jury whatever other information I
can, because of privacy considerations affecting my family, myself, and
others, and in an effort to preserve the dignity of the office I hold,
this is all I will say about the specifics of these particular matters.
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 17th, 1998 deposition; and questions
concerning alleged subornation of perjury, obstruction of justice, and
intimidation of witnesses. That, Mr. Bittman, is my statement.''
______
Table of Contents
exhibits
Telephone records
(1) Summary chart, 12/19/97
(2) Currie Cell phone records, 12/28/97
(3) Summary chart, 1/6/98
(4) Summary chart, 1/7/98
(5) Summary chart, 1/15/98-1/16/98
(6) Summary chart, 1/17/98
(7) Summary chart, 1/18/98
(8) Summary chart, 1/19/98
Court Documents
(9) Jones v. Clinton. Jan. 29, 1998 District Court Order regarding
discovery
(10) President Clinton's Answer to First Amended Complaint. Jones
v. Clinton
(11) In re: Sealed Case, Nos. 98-3053 & 3059, U.S. Court of
Appeals, District of Columbia
(12) Jane Doe #6 (Lewinsky) Affidavit filed in Jones v. Clinton
(13) ``Sexual Relations'' definition
Miscellaneous
(14) 1/18/98 Drudge Report
(15) Jones' attorneys fax cover sheet of witness list to Bennett
(16) White House ``Talking Points,'' January 24, 1998
(17) LA Times 1/25/98 Article regarding White House ``Talking
Points''
(18) Response of William J. Clinton to Judiciary Committee
Questions
(19) President Clinton Grand Jury Tr. 138 L. 16-23 (From GJ Tape 2)
(20) President Clinton Grand Jury Tr. 100 L. 20-25, Tr. 105 L. 19-
25, Tr. 106 L. 1-12 (From GJ Tape 3)
(21) President Clinton Deposition Tr. 75 L. 2-8, Tr. 76 L. 24-25,
Tr. 77 L. 1-2, (From Dep. Tape 1)
(22) President Clinton Deposition Tr. 52 L. 18-25, Tr. 53 L. 1-9,
10-18, Tr. 58 L. 22-25, Tr. 59 L. 1-3, 7-16, 17-20 (From Dep. Tape 3)
(23) President Clinton Deposition Tr. 78 L. 4-23, (From Dep. Tape
4)
(24) President Clinton Deposition Tr. 53 L. 22-25, Tr. 54 L. 1-7,
20-25, Tr. 55 L. 1-3 (From Dep. Tape 5)
(25) President Clinton Deposition Tr. 204 L. 5-14, (From Dep. Tape
8)
(26) President Clinton Grand Jury Tr. 9-11
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of William Jefferson Clinton, President of the United
States
TRIAL MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON
Table of Contents
I. INTRODUCTION
A. The Constitutional Standard for Impeachment Has Not Been
Satisfied
B. The President Did Not Commit Perjury or Obstruct Justice
C. Compound Charges and Vagueness
II. BACKGROUND
A. The Whitewater Investigative Dead-End
B. The Paula Jones Litigation
C. The President's Grand Jury Testimony About Ms. Lewinsky
D. Proceedings in the House of Representatives
III. THE CONSTITUTIONAL STANDARD AND BURDEN OF PROOF FOR DECISION
A. The Offenses Alleged Do Not Meet the Constitutional Standard of
High Crimes and Misdemeanors
1. The Senate Has a Constitutional Duty to Confront the Question
Whether Impeachable Offenses Have Been Alleged
2. The Constitution Requires a High Standard of Proof of ``High
Crimes and Misdemeanors'' for Removal
a. The Constitutional Text and Structure Set an Intentionally High
Standard for Removal
b. The Framers Believed that Impeachment and Removal Were
Appropriate Only for Offenses Against the System of Government
3. Past Precedents Confirm that Allegations of Dishonesty Do Not
Alone State Impeachable Offenses
a. The Fraudulent Tax Return Allegation Against President Nixon
b. The Financial Misdealing Allegation Against Alexander Hamilton
4. The Views of Prominent Historians and Legal Scholars Confirm
that Impeachable Offenses Are Not Present
a. No Impeachable Offense Has Been Stated Here
b. To Make Impeachable Offenses of These Allegations Would Forever
Lower the Bar in a Way Inimical to the Presidency and to Our Government
of Separated Powers
5. Comparisons to Impeachment of Judges Are Wrong
B. The Standard of Proof
IV. THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE I
A. Applicable Law
B. Structure of the Allegations
C. Response to the Particular Allegations in Article I
1. The President denies that he made materially false or misleading
statements to the grand jury about ``the nature and details of his
relationship'' with Monica Lewinsky
2. The President denies that he made perjurious, false and
misleading statements to the grand jury about testimony he gave in the
Jones case
3. The President denies that he made perjurious, false and
misleading statements to the grand jury about the statements of his
attorney to Judge Wright during the Jones deposition
4. The President denies that he made perjurious, false and
misleading statements to the grand jury when he denied attempting ``to
influence the testimony of witnesses and to impede the discovery of
evidence'' in the Jones case
V. THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE II
A. Applicable Law
B. Structure of the Allegations
C. Response to the Particular Allegations in Article II
1. The President denies that on or about December 17, 1997, he
``corruptly encouraged'' Monica Lewinsky ``to execute a sworn affidavit
in that proceeding that he knew to be perjurious, false and
misleading''
2. The President denies that on or about December 17, 1997, he
``corruptly encouraged'' Monica Lewinsky ``to give perjurious, false
and misleading testimony if and when called to testify personally'' in
the Jones litigation
3. The President denies that he ``corruptly engaged in, encouraged,
or supported a scheme to conceal evidence''--gifts he had given to
Monica Lewinsky--in the Jones case
a. Ms. Lewinsky's December 28 Meeting with the President
b. Ms. Currie's Supposed Involvement in Concealing Gifts
c. The Obstruction-by-Gift-Concealment Charge Is at Odds With the
President's Actions
4. The President denies that he obstructed justice in connection
with Monica Lewinsky's efforts to obtain a job in New York in an effort
to ``corruptly prevent'' her ``truthful testimony'' in the Jones case
a. The Complete Absence of Direct Evidence Supporting This Charge
b. Background of Ms. Lewinsky's New York Job Search
c. The Committee Report's Circumstantial Case
(1) Monica Lewinsky's December 11 meeting with Vernon Jordan
(2) The January job interviews and the Revlon employment offer
d. Conclusion
5. The President denies that he ``corruptly allowed his attorney to
make false and misleading statements to a Federal judge'' concerning
Monica Lewinsky's affidavit
6. The President denies that he obstructed justice by relating
``false and misleading statements'' to ``a potential witness,'' Betty
Currie, ``in order to corruptly influence [her] testimony''
7. The President denies that he obstructed justice when he relayed
allegedly ``false and misleading statements'' to his aides
VI. THE STRUCTURAL DEFICIENCIES OF THE ARTICLES PRECLUDE A
CONSTITUTIONALLY SOUND VOTE
A. The Articles Are Both Unfairly Complex and Lacking in
Specificity
1. The Structure of Article I
2. The Structure of Article II
B. Conviction on These Articles Would Violate the Constitutional
Requirement That Two-Thirds of the Senate Reach Agreement that Specific
Wrongdoing Has Been Proven
1. The Articles Bundle Together Disparate Allegations in Violation
of the Constitution's Requirements of Concurrence and Due Process
a. The Articles Violate the Constitution's Two-Thirds Concurrence
Requirement
b. Conviction on the Articles Would Violate Due Process Protections
that Forbid Compound Charges in a Single Accusation
C. Conviction on These Articles Would Violate Due Process
Protections Prohibiting Vague and Nonspecific Accusations
1. The Law of Due Process Forbids Vague and Nonspecific Charges
2. The Allegations of Both Articles Are Unconstitutionally Vague
D. The Senate's Judgment Will Be Final and That Judgment Must Speak
Clearly and Intelligibly
VII. THE NEED FOR DISCOVERY
VIII. CONCLUSION
TRIAL MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON
I. Introduction
Twenty-six months ago, more than 90 million Americans left their
homes and work places to travel to schools, church halls and other
civic centers to elect a President of the United States. And on January
20, 1997, William Jefferson Clinton was sworn in to serve a second term
of office for four years.
The Senate, in receipt of Articles of Impeachment from the House of
Representatives, is now gathered in trial to consider whether that
decision should be set aside for the remaining two years of the
President's term. It is a power contemplated and authorized by the
Framers of the Constitution, but never before employed in our nation's
history. The gravity of what is at stake--the democratic choice of the
American people--and the solemnity of the proceedings dictate that a
decision to remove the President from office should follow only from
the most serious of circumstances and should be done in conformity with
Constitutional standards and in the interest of the Nation and its
people.
The Articles of Impeachment that have been exhibited to the Senate
fall far short of what the Founding Fathers had in mind when they
placed in the hands of the Congress the power to impeach and remove a
President from office. They fall far short of what the American people
demand be shown and proven before their democratic choice is reversed.
And they even fall far short of what a prudent prosecutor would require
before presenting a case to a judge or jury.
Take away the elaborate trappings of the Articles and the high-
flying rhetoric that has accompanied them, and we see clearly that the
House of Representatives asks the Senate to remove the President from
office because he:
used the phrase ``certain occasions'' to describe the
frequency of his improper intimate contacts with Ms. Monica Lewinsky.
There were, according to the House Managers, eleven such contacts over
the course of approximately 500 days.
Should the will of the people be overruled and the President of the
United States be removed from office because he used the phrase
``certain occasions'' to describe eleven events over some 500 days?
That is what the House of Representatives asks the Senate to do.
used the word ``occasional'' to describe the frequency of
inappropriate telephone conversations between he and Monica Lewinsky.
According to Ms. Lewinsky, the President and Ms. Lewinsky engaged in
between ten and fifteen such conversations spanning a 23-month period.
Should the will of the people be overruled and the President of the
United States be removed from office because he used the word
``occasional'' to describe up to 15 telephone calls over a 23-month
period? That is what the House of Representatives asks the Senate to
do.
said the improper relationship with Ms. Lewinsky began in
early 1996, while she recalls that it began in November 1995. And he
said the contact did not include touching certain parts of her body,
while she said it did.
Should the will of the people be overruled and the President of the
United States be removed from office because two people have a
different recollection of the details of a wrongful relationship--which
the President has admitted? That is what the House of Representatives
asks the Senate to do.
The Articles of Impeachment are not limited to the examples cited
above, but the other allegations of wrongdoing are similarly
unconvincing. There is the charge that the President unlawfully
obstructed justice by allegedly trying to find a job for Monica
Lewinsky in exchange for her silence about their relationship. This
charge is made despite the fact that no one involved in the effort to
find work for Ms. Lewinsky--including Ms. Lewinsky herself--testifies
that there was any connection between the job search and the affidavit.
Indeed, the basis for that allegation, Ms. Lewinsky's statements to Ms.
Tripp, was expressly repudiated by Ms. Lewinsky under oath.
There is also the charge that the President conspired to obstruct
justice by arranging for Ms. Lewinsky to hide gifts that he had given
her, even though the facts and the testimony contain no evidence that
he did so. In fact, the evidence shows that the President gave her new
gifts on the very day that the articles allege he conspired to conceal
his gifts to her.
In the final analysis, the House is asking the Senate to remove the
President because he had a wrongful relationship and sought to keep the
existence of that relationship private.
Nothing said in this Trial Memorandum is intended to excuse the
President's actions. By his own admission, he is guilty of personal
failings. As he has publicly stated, ``I don't think there is a fancy
way to say that I have sinned.'' He has misled his family, his friends,
his staff, and the Nation about the nature of his relationship with Ms.
Lewinsky. He hoped to avoid exposure of personal wrongdoing so as to
protect his family and himself and to avoid public embarrassment. He
has acknowledged that his actions were wrong.
By the same token, these actions must not be mischaracterized into
a wholly groundless excuse for removing the President from the office
to which he was twice elected by the American people. The allegations
in the articles and the argument in the House Managers' Trial
Memorandum do not begin to satisfy the stringent showing required by
our Founding Fathers to remove a duly elected President from office,
either as a matter of fact or law.
a. the constitutional standard for impeachment has not been satisfied
There is strong agreement among constitutional and legal scholars
and historians that the substance of the articles does not amount to
impeachable offenses. On November 6, 1998, 430 Constitutional law
professors wrote:
``Did President Clinton commit `high Crimes and Misdemeanors'
warranting impeachment under the Constitution? We . . . believe that
the misconduct alleged in the report of the Independent Counsel . . .
does not cross the threshold. . . . [I]t is clear that Members of
Congress could violate their constitutional responsibilities if they
sought to impeach and remove the President for misconduct, even
criminal misconduct, that fell short of the high constitutional
standard required for impeachment.''
On October 28, 1998, more than 400 historians issued a joint
statement warning that because impeachment had traditionally been
reserved for high crimes and misdemeanors in the exercise of executive
power, impeachment of the President based on the facts alleged in the
OIC Referral would set a dangerous precedent. ``If carried forward,
they will leave the Presidency permanently disfigured and diminished,
at the mercy as never before of caprices of any Congress. The
Presidency, historically the center of leadership during our great
national ordeals, will be crippled in meeting the inevitable challenges
of the future.''
We address why the charges in the two articles do not rise to the
level of ``high Crimes and Misdemeanors'' in Section III,
Constitutional Standard and Burden of Proof.
b. the president did not commit perjury or obstruct justice
Article I alleges perjury before a federal grand jury. Article II
alleges obstruction of justice. Both perjury and obstruction of justice
are statutory crimes. In rebutting the allegations contained in the
articles of impeachment, this brief refers to the facts as well as to
laws, legal principles, court decisions, procedural safeguards, and the
Constitution itself. Those who seek to remove the President speak of
the ``rule of law.'' Among the most fundamental rules of law are the
principles that those who accuse have the burden of proof, and those
who are accused have the right to defend themselves by relying on the
law, established procedures, and the Constitution. These principles are
not ``legalisms'' but rather the very essence of the ``rule of law''
that distinguishes our Nation from others.
We respond, in detail, to those allegations whose substance we can
decipher in Section IV, The President Should Be Acquitted on Article I,
and in Section V, The President Should Be Acquitted on Article II.
c. compound charges and vagueness
If there were any doubt that the House of Representatives has
utterly failed in its constitutional responsibility to the Senate and
to the President, that doubt vanishes upon reading the Trial Memorandum
submitted by the House Managers. Having proferred two articles of
impeachment, each of which unconstitutionally combines multiple
offenses and fails to give even minimally adequate notice of the
charges it encompasses, the House--three days before the Managers are
to open their case--is still expanding, not refining, the scope of
those articles. In further violation of the most basic constitutional
principles, their brief advances, merely as ``examples,'' nineteen
conclusory allegations--eight of perjury under Article I and eleven of
obstruction of justice under Article II, some of which have never
appeared before, even in the Report submitted by the Judiciary
Committee (``Committee Report''), much less in the Office of
Independent Counsel (``OIC'') Referral or in the articles
themselves.\1\ If the target the Managers present to the Senate and to
the President is still moving now, what can the President expect in the
coming days? Is there any point at which the President will be given
the right accorded a defendant in the most minor criminal case--to know
with certainty the charges against which he must defend?
---------------------------------------------------------------------------
\1\ For example, the House managers add a charge that the President
engaged in ``legalistic hair splitting [in his response to the 81
questions] in an obvious attempt to skirt the whole truth and to
deceive and obstruct'' the Committee. This charge was specifically
rejected by the full House of Representatives when it rejected Article
IV.
---------------------------------------------------------------------------
The Senate, we know, fully appreciates these concerns and has, in
past proceedings, dealt appropriately with articles far less flawed
than these. The constitutional concerns raised by the House's action
are addressed in Section VI, The Structural Deficiencies of the
Articles Preclude a Constitutionally Sound Vote.
II. Background
a. the whitewater investigative dead-end
The Lewinsky investigation emerged in January 1998 from the long-
running Whitewater investigation. On August 5, 1994, the Special
Division of the United States Court of Appeals for the District of
Columbia Court Circuit appointed Kenneth W. Starr as Independent
Counsel to conduct an investigation centering on two Arkansas entities,
Whitewater Development Company, Inc., and Madison Guaranty Savings and
Loan Association.
In the spring of 1997, OIC investigators, without any expansion of
jurisdiction, interviewed Arkansas state troopers who had once been
assigned to the Governor's security detail, and ``[t]he troopers said
Starr's investigators asked about 12 to 15 women by name, including
Paula Corbin Jones. . . .'' Woodward & Schmidt, ``Starr Probes Clinton
Personal Life,'' The Washington Post (June 25, 1997) at A1 (emphasis
added). ``The nature of the questioning marks a sharp departure from
previous avenues of inquiry in the three-year old investigation. . . .
Until now, . . . what has become a wide-ranging investigation of many
aspects of Clinton's governorship has largely steered clear of
questions about Clinton's relationships with women. . . .'' \2\ One of
the most striking aspects of this new phase of the Whitewater
investigation was the extent to which it focused on the Jones case. One
of the troopers interviewed declared, ``[t]hey asked me about Paula
Jones, all kinds of questions about Paula Jones, whether I saw Clinton
and Paula together and how many times.'' \3\
---------------------------------------------------------------------------
\2\ Ibid. Trooper Roger Perry, a 21-year veteran of the Arkansas
state police, stated that he ``was asked about the most intimate
details of Clinton's life: `I was left with the impression that they
wanted me to show he was a womanizer. . . . All they wanted to talk
about was women.' '' Ibid. (Ellipsis in original).
\3\ Ibid.
---------------------------------------------------------------------------
In his November 19, 1998, testimony before the House Judiciary
Committee, Mr. Starr conceded that his agents had conducted these
interrogations and acknowledged that at that time, he had not sought
expansion of his jurisdiction from either the Special Division or the
Attorney General.\4\ Mr. Starr contended that these inquiries were
somehow relevant to his Whitewater investigation: ``we were, in fact
interviewing, as good prosecutors, good investigators do, individuals
who would have information that may be relevant to our inquiry about
the President's involvement in Whitewater, in Madison Guaranty Savings
and Loan and the like.''\5\ It seems irrefutable, however, that the OIC
was in fact engaged in an unauthorized attempt to gather embarrassing
information about the President--information wholly unrelated to
Whitewater or Madison Guaranty Savings and Loan, but potentially
relevant to the lawsuit filed by Paula Jones.
---------------------------------------------------------------------------
\4\ Transcript of November 19, 1998 House Judiciary Committee
Hearing at 377-378.
\5\ Ibid. at 378.
---------------------------------------------------------------------------
b. the paula jones litigation
The Paula Jones lawsuit made certain allegations about events she
said had occurred three years earlier, in 1991, when the President was
Governor of Arkansas. Discovery in the case had been stayed until the
Supreme Court's decision on May 27, 1997, denying the President
temporary immunity from suit.\6\ Shortly thereafter, Ms. Jones' legal
team began a public relations offensive against the President, headed
by Ms. Jones' new spokesperson, Mr. Susan Carpenter-McMillan, and her
new counsel affiliated with the conservative Rutherford Institute.\7\
``I will never deny that when I first heard about this case I said,
`Okay, good. We're gonna get that little slimeball,' said Ms.
Carpenter-McMillan.'' \8\ While Ms. Jones' previous attorneys, Messrs.
Gilbert Davis and Joseph Cammarata, had largely avoided the media, as
the Jones civil suit increasingly became a partisan vehicle to try to
damage the President, public personal attacks became the order of the
day.\9\ As is now well known, this effort led ultimately to the Jones
lawyers being permitted to subpoena various women, to discover the
nature of their relationship, if any, with the President, allegedly for
the purpose of determining whether they had information relevant to the
sexual harassment charge. Among these women was Ms. Lewinsky.
---------------------------------------------------------------------------
\6\ Clinton v. Jones, 520 U.S. 681 (1997).
\7\ Ms. Jones was described as having ``accepted financial support
of a Virginia conservative group,'' which intended to ``raise $100,000
or more on Jones's behalf, although the money will go for expenses and
not legal fees.'' ``Jones Acquires New Lawyers and Backing,'' The
Washington Post (October 2, 1998) at A1. Jones' new law firm, the
Dallas-based Radar, Campbell, Fisher and Pyke, had ``represented
conservatives in antiabortion cases and other causes.'' Ibid. See also
Dallas Lawyers Agree to Take on Paula Jones' Case--Their Small Firm Has
Ties to Conservative Advocacy Group,'' The Los Angeles Times (Oct. 2,
1997) (Rutherford Institute a ``conservative advocacy group.'').
\8\ ``Cause Celebre: An Antiabortion Activist Makes Herself the
Unofficial Mouthpiece for Paula Jones.'' The Washington Post (July 23,
1998) at C1. Ms. Carpenter-McMillan, ``a cause-oriented, self-defined
`conservative feminist' '', described her role as ``flaming the White
House'' and declared `` `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.' ''
``Paula Jones' Team Not All About Teamwork,'' USA Today (Sept. 29,
1997) at 4A.
\9\ After Ms. Jones' new team had been in action for three months,
one journalist commented: ``In six years of public controversy over
Clinton's personal life, what is striking in some ways is how little
the debate changes. As in the beginning, many conservatives nurture the
hope that the past will be Clinton's undoing. Jones' adviser, Susan
Carpenter-McMillan, acknowledged on NBC's `Meet the Press' yesterday
that her first reaction when she first heard Jones' claims about
Clinton was, `Good, we're going to get that little slime ball.' ''
(Harris, ``Jones Case Tests Political Paradox,'' The Washington Post
(Jan. 19, 1998) at A1.
---------------------------------------------------------------------------
In January 1998, Ms. Linda Tripp notified the OIC of certain
information she believed she had about Ms. Lewinsky's involvement in
the Jones case. At that time, the OIC investigation began to intrude
formally into the Jones case: the OIC met with Ms. Tripp through the
week of January 12, and with her cooperation taped Ms. Lewinsky
discussing the Jones case and the President. Ms. Tripp also informed
the OIC that she had been surreptitiously taping conversations with Ms.
Lewinsky in violation of Maryland law, and in exchange for her
cooperation, the OIC promised Ms. Tripp immunity from federal
prosecution, and assistance in protecting her from state
prosecution.\10\ On Friday, January 16, after Ms. Tripp wore a body
wire and had taped conversations with Ms. Lewinsky for the OIC, the OIC
received jurisdiction from the Attorney General and formalized an
immunity agreement with Ms. Tripp in writing.
---------------------------------------------------------------------------
\10\ Supplemental Materials to the Referral to the United States
House of Representatives Pursuant to Title 28, United States Code
Section 595(C), H.Doc. 105-316 (hereinafter ``Supp.'') at 3758-3759,
4371-4373 (House Judiciary Committee) (Sept. 28, 1998).
---------------------------------------------------------------------------
The President's deposition in the Jones case was scheduled to take
place the next day, on Saturday, January 17. As we now know, Ms. Tripp
met with and briefed the lawyers for Ms. Jones the night before the
deposition on her perception of the relationship between Ms. Lewinsky
and the President--doing so based on confidences Ms. Lewinsky had
entrusted to her.\11\ She was permitted to do so even though she has
been acting all week at the behest of the OIC and was dependent on the
OIC to use its best efforts to protect her from state prosecution. At
the deposition the next day, the President was asked numerous questions
about his relationship with Ms. Lewinsky by lawyers who already knew
the answers.
---------------------------------------------------------------------------
\11\ Baker, ``Linda Tripp Briefed Jones Team on Tapes: Meeting
Occurred Before Clinton Deposition,'' The Washington Post (Feb. 14,
1998) at A1.
---------------------------------------------------------------------------
The Jones case, of course, was not about Ms. Lewinsky. She was a
peripheral player and, since her relationship with the President was
concededly consensual, irrelevant to Ms. Jones' case. Shortly after the
President's deposition, Chief Judge Wright ruled that evidence
pertaining to Ms. Lewinsky would not be admissible at the Jones trial
because ``it is not essential to the core issues in this case.'' \12\
The Court also ruled that, given the allegations at issue in the Jones
case, the Lewinsky evidence ``might be inadmissible as extrinsic
evidence'' under the Federal Rules of Evidence because it involved
merely the ``specific instances of conduct'' of a witness.\13\
---------------------------------------------------------------------------
\12\ Order, at 2, Jones v. Clinton, No. LR-C-94-290 (E.D. Ark.)
(Jan. 29, 1998).
\13\ Ibid.
---------------------------------------------------------------------------
On April 1, 1998, the Court ruled that Ms. Jones had no case and
granted summary judgment for the President. Although Judge Wright
``viewed the record in the light most favorable to [Ms. Jones] and
[gave] her the benefit of all reasonable factual inferences,'' \14\ the
Court ruled that, as a matter of law, she simply had no case against
President Clinton, both because ``there is no genuine issue as to any
material fact'' and because President Clinton was ``entitled to a
judgment as a matter of law.'' Id. at 11-12. After reviewing all the
proffered evidence, the Court ruled that ``the record taken as a whole
could not lead a rational trier of fact to find for'' Ms. Jones. Id. at
39.
---------------------------------------------------------------------------
\14\ Jones v. Clinton, No. LR-C-94-290 (E.D. Ark.), Memorandum
Opinion and Order (April 1, 1998), at 3 n.3.
---------------------------------------------------------------------------
c. the president's grand jury testimony about ms. lewinsky
On August 17, 1998, the President voluntarily testified to the
grand jury and specifically acknowledged that he had had a relationship
with Ms. Lewinsky involving ``improper intimate contact,'' and that he
``engaged in conduct that was wrong.'' App. at 461.\15\ He described
how the relationship began and how he had ended it early in 1997--long
before any public attention or scrutiny. He stated to the grand jury
``it's an embarrassing and personally painful thing, the truth about my
relationship with Ms. Lewinsky,'' App. at 533, and told the grand
jurors, ``I take full responsibility for it. It wasn't her fault, it
was mine.'' App. at 589-90.
---------------------------------------------------------------------------
\15\ Appendices to the Referral to the United States House of
Representatives Pursuant to Title 28, United States Code Section
595(c), H.Doc. 105-311 (hereinafter ``App.'') at 461 (House Judiciary
Committee) (Sept. 18, 1998).
---------------------------------------------------------------------------
The President also explained how he had tried to navigate the
deposition in the Jones case months earlier without admitting what he
admitted to the grand jury--that he had been engaged in an improper
intimate relationship with Ms. Lewinsky. Id. a 530-531. He further
testified that the ``inappropriate encounters'' with Ms. Lewinsky had
ended, at his insistence, in early 1997. He declined to describe,
because of considerations of personal privacy and institutional
dignity, certain specifics about his conduct with Ms. Lewinsky,\16\ but
he indicated his willingness to answer,\17\ and he did answer, the
other questions put to him about his relationship with her. No one who
watched the videotape of this grand jury testimony had any doubt that
the President admitted to having had an improper intimate relationship
with Ms. Lewinsky.
---------------------------------------------------------------------------
\16\ ``While I will provide the grand jury whatever other
information I can, because of privacy considerations affecting my
family, myself, and others, and in an effort to preserve the dignity of
the office I hold, this is all I will say about the specifics of these
particular matters.'' App. at 461.
\17\ ``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 17th, 1998 deposition; and
questions concerning alleged subornation of perjury, obstruction of
justice, and intimidation of witnesses.'' App. at 461.
---------------------------------------------------------------------------
d. proceedings in the house of representatives
On September 9, 1998, Mr. Starr transmitted a Referral to the House
of Representatives that alleged eleven acts by the President related to
the Lewinsky matter that, in the opinion of the OIC, ``may constitute
grounds for an impeachment.'' \18\ The allegations fell into three
broad categories: lying under oath, obstruction of justice, and abuse
of power.
---------------------------------------------------------------------------
\18\ Referral from Independent Counsel Kenneth W. Starr in
Conformity with the Requirements of Title 28, United States Code,
Section 595(c), at 1 (House Judiciary Committee) (printed September 11,
1998).
---------------------------------------------------------------------------
The House Judiciary held a total of four hearings and called but
one witness: Kenneth W. Starr. The Committee allowed the President's
lawyers two days in which to present a defense. The White House
presented four panels of distinguished expert witnesses who testified
that the facts, as alleged, did not constitute an impeachable offense,
did not reveal an abuse of power, and would not support a case for
perjury or obstruction of justice that any reasonable prosecutor would
bring. White House Counsel Charles F.C. Ruff presented argument to the
Committee on behalf of the President, which is incorporated into this
Trial Memorandum by reference.\19\
---------------------------------------------------------------------------
\19\ Also incorporated by reference into this Trial Memorandum are
the four prior submissions of the President to the House of
Representatives: Preliminary Memorandum Concerning Referral of Office
of Independent Counsel (September 11, 1998) (73 pages); Initial
Response to Referral of Office of Independent Counsel (September 12,
1998) (42 pages); Memorandum Regarding Standards of Impeachment
(October 2, 1998) (30 pages); Submission by Counsel for President
Clinton to the Committee on the House Judiciary of the United States
House of Representatives (December 8, 1998) (184 pages).
---------------------------------------------------------------------------
On December 11 and 12, the Judiciary Committee voted essentially
along party lines to approve four articles of impeachment. Republicans
defeated the alternative resolution of censure offered by certain
Committee Democrats. Almost immediately after censure failed in the
Committee, the House Republican leadership declared publicly that no
censure proposal would be considered by the full House when it
considered the articles of impeachment.\20\
---------------------------------------------------------------------------
\20\ See Baker & Eilperin, ``GOP Blocks Democrats' Bid to Debate
Censure in House: Panel Votes Final, Trimmed Article of Impeachment,''
The Washington Post (Dec. 13, 1998) at A1.
---------------------------------------------------------------------------
On December 19, 1998, voting essentially on party lines, the House
of Representatives approved two articles of impeachment: Article I,
which alleged perjury before the grand jury, passed by a vote of 228 to
206 and Article III, which alleged obstruction of justice, passed by a
vote of 221 to 212. The full House defeated two other Articles: Article
II, which alleged that the President committed perjury in his civil
deposition, and Article IV, which alleged abuse of power. Consideration
of a censure resolution was blocked, even though members of both
parties had expressed a desire to vote on such an option.
From beginning to end the House process was both partisan and
unfair. Consider:
The House released the entire OIC Referral to the public
without ever reading it, reviewing it, editing it, or allowing the
President's counsel to review it;
The Chairman of the House Judiciary Committee said he had
``no interest in not working in a bipartisan way''; \21\
---------------------------------------------------------------------------
\21\ Associated Press (March 25, 1998).
---------------------------------------------------------------------------
The Chairman also pledged a process the American people
would conclude was fair; \22\
---------------------------------------------------------------------------
\22\ ``This whole proceeding will fall on its face if it's not
perceived by the American people to be fair.'' Financial Times (Sept.
12, 1998).
---------------------------------------------------------------------------
The Speaker-Designate of the House endorsed a vote of
conscience on a motion to censure; \23\
---------------------------------------------------------------------------
\23\ ``The next House Speaker, Robert Livingston, said the coming
impeachment debate should allow lawmakers to make a choice between
ousting President Clinton and imposing a lesser penalty such as
censure. The Louisiana Republican said the House can't duck a vote on
articles of impeachment if reported next month by its Judiciary
Committee. But an `alternative measure is possible' he said, and the
GOP leadership should `let everybody have a chance to vote on the
option of their choice.' '' Wall Street Journal (Nov. 23, 1998).
---------------------------------------------------------------------------
Members of the House were shown secret ``evidence'' in
order to influence their vote--evidence which the President's counsel
still has not been able to review.
III. The Constitutional Standard and Burden of Proof for Decision
a. the offenses alleged do not meet the constitutional standard of high
crimes and misdemeanors
1. The Senate Has a Constitutional Duty to Confront the Question
Whether Impeachable Offenses Have Been Alleged
It is the solemn duty of the Senate to consider the question
whether the articles state an impeachable offense.\24\ That
Constitutional question has not, in the words of one House Manager,
``already been resolved by the House.'' \25\ To the contrary, that
question now awaits the Senate's measured consideration and independent
judgment. Indeed, throughout our history, resolving this question has
been an essential part of the Senate's constitutional obligation to
``try all Impeachments.'' U.S. Const. Art. Sec. 3, cl.7. In the words
of John Logan, a House Manager in the 1868 proceedings:
---------------------------------------------------------------------------
\24\ In the impeachment trial of Andrew Johnson, the President's
counsel answered (to at least one article) that the matters alleged
``do not charge or allege the commission of any act whatever by this
respondent, in his office of President of the United States, nor the
omission by this respondent of any act of official obligation or duty
in his office of President of the United States.'' 1 Trial of Andrew
Johnson (1868) (``TAJ'') 53.
\25\ See Statement of Rep. Bill McCollum: ``[A]re these impeachable
offenses, which I think has already been resolved by the House. I think
constitutionally that's our job to do.'' Fox News Sunday (January 3,
1999).
---------------------------------------------------------------------------
``It is the rule that all questions of law or fact are to be
decided, in these proceedings, by the final vote upon the guilt or
innocence of the accused. It is also the rule, that in determining this
general issue senators must consider the sufficiency or insufficiency
in law or in fact of every article of accusation.'' \26\
---------------------------------------------------------------------------
\26\ Closing argument of Manager John H. Logan, 2 TAJ 18 (emphasis
added). See also Office of Senate Legal Counsel, Memorandum on
Impeachment Issues at 25-26 (Oct. 7, 1988) (``Because the Senate acts
as both judge and jury in an impeachment trial, the Senate's conviction
on a particular article of impeachment reflects the Senate's judgment
not only that the accused engaged in the misconduct underlying the
article but also that the article stated an impeachable offense'').
We respectfully suggest that the articles exhibited here do not state
wrongdoing that constitutes impeachable offenses under our
Constitution.
2. The Constitution Requires a High Standard of Proof of ``High Crimes
and Misdemeanors'' for Removal
a. The Constitutional Text and Structure Set an
Intentionally High Standard for Removal
The Constitution provides that the President shall be removed from
office only upon ``Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.'' U.S. Constitution,
Art. II, section 4. The charges fail to meet the high standard that the
Framers established.\27\
---------------------------------------------------------------------------
\27\ For a more complete discussion of the Standards for
Impeachment, please see Submission by Counsel for President Clinton to
the House Judiciary of the United States House of Representatives at
24-43 (December 8, 1998); Memorandum Regarding Standards of Impeachment
(October 2, 1998); and Impeachment of William Jefferson, President of
the United States, Report of the Committee on the Judiciary to
Accompany H. Res. 611, H. Rpt. 105-830, 105th Cong., 2d Sess. at 332-39
(citing Minority Report). References to pages 2-203 of the Committee
Report will be cited hereinafter as ``Committee Report.'' References to
pages 329-406 of the Committee Report will be cited hereinafter as
``Minority Report.''
---------------------------------------------------------------------------
The syntax of the Constitutional standard ``Treason, Bribery or
other high Crimes and Misdemeanors'' (emphasis added) strongly
suggests, by the interpretive principle noscitur a sociis,28
that, to be impeachable offenses, high crimes and misdemeanors must be
of the seriousness of ``Treason'' and ``Bribery.''
---------------------------------------------------------------------------
\28\ `` `It is known from its associates' . . . the meaning of a
word is or may be known from the accompanying words.'' Black's Law
Dictionary 1209 (4th ed. 1968).
---------------------------------------------------------------------------
Our Constitutional structure reaffirms that the standard must be a
very high one. Ours is a Constitution of separated powers. In that
Constitution, the President does not serve at the will of Congress, but
as the directly elected,\29\ solitary head of the Executive Branch. The
Constitution reflects a judgment that a strong Executive, executing the
law independently of legislative will, is a necessary protection for a
free people.
---------------------------------------------------------------------------
\29\ Of course, that election takes place through the mediating
activity of the Electoral College. See U.S. Const. Art. II, Sec. 1, cl.
2-3 and Amend. XII.
---------------------------------------------------------------------------
These elementary facts of constitutional structure underscore the
need for a very high standard for impeachment. The House Managers, in
their Brief, suggest that the failure to remove the President would
raise the standard for impeachment higher than the Framers intended.
They say that if the Senate does not remove the President, ``The bar
will be so high that only a convicted felon or a traitor will need to
be concerned.'' But that standard is just a modified version of the
plain language of Article II, Section 4 of the Constitution, which says
a President can only be impeached and removed for ``Treason, Bribery,
or other high Crimes and Misdemeanors.'' The Framers wanted a high bar.
It was not the intention of the Framers that the President should be
subject to the will of the dominant legislative party. As Alexander
Hamilton said in a warning against the politicization of impeachment:
``There will always be the greater danger that the decision will be
regulated more by comparative strength of parties than by the real
demonstrations of innocence or guilt.'' Federalist 65. Our system of
government does not permit Congress to unseat the President merely
because it disagrees with his behavior or his policies. The Framers'
decisive rejection of parliamentary government is one reason they
caused the phrase ``Treason, Bribery or other high Crimes and
Misdemeanors'' to appear in the Constitution itself. They chose to
specify those categories of offenses subject to the impeachment power,
rather than leave that judgment to the unfettered whim of the
legislature.
Any just and proper impeachment process must be reasonably viewed
by the public as arising from one of those rare cases when the
Legislature is compelled to stand in for all the people and remove a
President whose continuation in office threatens grave harm to the
Republic. Indeed, it is not exaggeration to say--as a group of more
than 400 leading historians and constitutional scholars publicly
stated--that removal on these articles would ``mangle the system of
checks and balances that is our chief safeguard against abuses of
public power.'' \30\ Removal of the President on these grounds would
defy the constitutional presumption that the removal power rests with
the people in elections, and it would do incalculable damage to the
institution of the Presidency. If ``successful,'' removal here ``will
leave the Presidency permanently disfigured and diminished, at the
mercy as never before of the caprices of any Congress.'' \31\
---------------------------------------------------------------------------
\30\ Statement of Historians in Defense of the Constitution (Oct.
28, 1998) (``Statement of Historians''); see also Schmitt, ``Scholars
and Historians Assail Clinton Impeachment Inquiry,'' The New York Times
(Oct. 19, 1998) at A18.
\31\ Statement of Historians.
---------------------------------------------------------------------------
The Framers made the President the sole nationally elected public
official (together with the Vice-President), responsible to all the
people. Therefore, when articles of impeachment have been exhibited,
the Senate confronts this inescapable question: is the alleged
misconduct so profoundly serious, so malevolent to our Constitutional
system, that it justifies undoing the people's decision? Is the wrong
alleged of a sort that not only demands removal of the President before
the ordinary electoral cycle can do its work, but also justifies the
national trauma that accompanies the impeachment trial process itself?
The wrongdoing alleged here does not remotely meet that standard.
b. The Framers Believed that Impeachment and Removal Were
Appropriate Only for Offenses Against the System of
Government
``[H]igh Crimes and Misdemeanors'' refers to nothing short of
Presidential actions that are ``great and dangerous offenses'' or
``attempts to subvert the Constitution.'' \32\ Impeachment was never
intended to be a remedy for private wrongs. It was intended to be a
method of removing a President whose continued presence in the Office
would cause grave danger to the Nation and our Constitutional system of
government.\33\ Thus, ``in all but the most extreme instances,
impeachment should be limited to abuse of public office, not private
misconduct unrelated to public office.'' \34\
---------------------------------------------------------------------------
\32\ George Mason, 2 Farrand, The Records of the Federal Convention
of 1787 550 (Rev. ed. 1966).
\33\ As the 1975 Watergate staff report concluded ``Impeachment is
the first step in 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. . . . In an impeachment proceeding a
President is called to account for abusing powers that only a President
possesses.'' Constitutional Grounds for Presidential Impeachment,
Report by the Staff of the Impeachment Inquiry, House Comm. on
Judiciary, 93d Cong., 2d Sess. at 24 (1974) (``Nixon Impeachment
Inquiry'').
\34\ Minority Report at 337.
---------------------------------------------------------------------------
Impeachment was designed to be a means of redressing wrongful
public conduct. As scholar and Justice James Wilson wrote, ``our
President . . . is amendable to [the laws] in his private character as
a citizen, and in his public character by impeachment.'' \35\ As such,
impeachment is limited to certain forms of wrongdoing. Alexander
Hamilton described the subject of the Senate's impeachment jurisdiction
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 to the society
itself.'' 36
---------------------------------------------------------------------------
\35\ 2 Elliot, The Debate in the Several State Conventions on the
Adoption of the Federal Constitution 480 (reprint of 2d ed.)
\36\ The Federalist No. 65 at 331 (Gary Wills ed. 1982). As one of
the most respected of the early commentators explained, the impeachment
``power partakes of a political character, as it respects injuries to
the society in its political character.'' Story, Commentaries on the
Constitution, Sec. 744. (reprint of 1st ed. 1833).
The Framers ``intended that a president be removable from office
for the commission of great offenses against the Constitution.'' \37\
Impeachment therefore addresses public wrongdoing, whether denominated
a ``political crime [ ] against the state,'' \38\ or ``an act of
malfeasance or abuse of office,'' \39\ or a ``great offense [ ]
against the federal government.'' \40\ Ordinary civil and criminal
wrongs can be addressed through ordinary judicial processes. And
ordinary political wrongs can be addressed at the ballot box and by
public opinion. Impeachment is reserved for the most serious public
misconduct, those aggravated abuses of executive power that, given the
President's four-year term, might otherwise go unchecked.
---------------------------------------------------------------------------
\37\ John Labovitz, Presidential Impeachment 94 (1978).
\38\ Raoul Berger, Impeachment 61 (1973).
\39\ Rotunda, An Essay on the Constitutional Parameters of Federal
Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
\40\ Gerhardt, The Constitutional Limits to Impeachment and Its
Alternatives, 68 Tex. L. Rev. 1, 85 (1989).
---------------------------------------------------------------------------
3. Past Precedents Confirm that Allegations of Dishonesty Do Not Alone
State Impeachable Offenses
Because impeachment of a President nullifies the popular will of
the people, as evidence by an election, it must be used with great
circumspection. As applicable precedents establish, it should not be
used to punish private misconduct.
a. The Fraudulent Tax Return Allegation Against President
Nixon
Five articles of impeachment were proposed against then-President
Nixon by the Judiciary Committee of the House of Representatives in
1974. Three were approved and two were not. The approved articles
alleged official wrongdoing. Article I charged President Nixon with
``using the powers of his high office [to] engage [ ] . . . in a
course of conduct or plan designed to delay, impede and obstruct'' the
Watergate investigation.\41\ Article II described the President as
engaging in ``repeated and continuing abuse of the powers of the
Presidency in disregard of the fundamental principle of the rule of law
in our system of government'' thereby ``us[ing] his power as President
to violate the Constitution and the law of the land.'' \42\ Article III
charged the President with refusing to comply with Judiciary Committee
subpoenas in frustration of a power necessary to ``preserve the
integrity of the impeachment process itself and the ability of Congress
to act as the ultimate safeguard against improper Presidential
conduct.'' \43\
---------------------------------------------------------------------------
\41\ Impeachment of Richard M. Nixon, President of the United
States, Report of the Comm. on the Judiciary, 93rd Cong., 2d Sess, H.
Rep. 93-1305 (Aug. 20, 1974) (hereinafter ``Nixon Report'') at 133.
\42\ Nixon Report at 180.
\43\ Id. 212-13.
---------------------------------------------------------------------------
On article not approved by the House Judiciary Committee charged
that President Nixon both ``knowingly and fraudulently failed to report
certain income and claimed deductions [for 1969-72] on his Federal
income tax returns which were not authorized by law.'' \44\ The
President had signed his returns for those years under penalty of
perjury,\45\ and there was reason to believe that the underlying facts
would have supported a criminal prosecution against President Nixon
himself.\46\
---------------------------------------------------------------------------
\44\ Id. at 220. The President was alleged to have failed to report
certain income, to have taken improper tax deductions, and to have
manufactured (either personally or through his agents) false documents
to support the deductions taken.
\45\ Given the underlying facts, that act might have provided the
basis for multiple criminal charges; conviction on, for example, the
tax evasion charge, could have subjected President Nixon to a 5-year
prison term.
\46\ See Nixon Report at 344 (``the Committee was told by a
criminal fraud tax expert that on the evidence presented to the
Committee, if the President were an ordinary taxpayer, the government
would seek to send him to jail'') (Statement of Additional Views of Mr.
Mezvinsky, et al.)
---------------------------------------------------------------------------
Specifying the applicable standard for impeachment, the majority
staff 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 office.'' \47\
---------------------------------------------------------------------------
\47\ Nixon Impeachment Inquiry at 26 (emphasis added).
---------------------------------------------------------------------------
And the minority views of many Republican members were in
substantial agreement: ``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 established by the Constitution.'' \48\
---------------------------------------------------------------------------
\48\ Nixon Report at 364-365 (Minority Views of Messrs. Hutchinson,
Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti and
Latta).
---------------------------------------------------------------------------
The legal principle that impeachable offenses required misconduct
dangerous to our system of government provided one basis for the
Committee's rejection of the fraudulent-tax-return charge. As
Congressman Hogan (R-Md.) put the matter, the Constitution's phrase
``high crime signified a crime against the system of government, not
merely a serious crime,''\49\ As noted, the tax-fraud charge, involving
an act which did not demonstrate public misconduct, was rejected by an
overwhelming (and bipartisan) 26-12 margin.\50\
---------------------------------------------------------------------------
\49\ Id. (quoting with approval conclusion of Nixon Impeachment
Inquiry).
\50\ Nixon Report at 220.
---------------------------------------------------------------------------
b. The Financial Misdealing Allegation Against Alexander
Hamilton
In 1792, Congress investigated Secretary of Treasury Alexander
Hamilton for alleged financial misdealings with a convicted swindler.
Hamilton had made payments to the swindler and had urged his wife
(Hamilton's paramour) to burn incriminating correspondence. Members of
Congress investigated the matter and it came to the attention of
President Washington and future Presidents Adams, Jefferson, Madison
and Monroe.
This private matter was not deemed worthy of removing Mr. Hamilton
as Secretary of the Treasury.\51\ Even when it eventually became
public, it was no barrier to Hamilton's appointment to high position in
the United States Army. Although not insignificant, Hamilton's behavior
was essentially private. It was certain not regarded as impeachable.
---------------------------------------------------------------------------
\51\ See generally Rosenfeld, ``Founding Fathers Didn't Flinch,''
The Los Angeles Times (September 18, 1980).
---------------------------------------------------------------------------
4. The Views of Prominent Historians and Legal Scholars Confirm that
Impeachable Offenses Are not Present
a. No Impeachable Offense Has Been Stated Here
There is strong agreement among constitutional scholars and
historians that the articles do not charge impeachable offenses. As
Professor Michael Gerhardt summarized in his recent testimony before a
subcommitte of the House of Representatives, there is ``widespread
recognition [of] a paradigmatic case for impeachment.'' \52\ In such a
case, ``there must be a nexus between the misconduct of an impeachable
official and the latter's official duties.'' \53\
---------------------------------------------------------------------------
\52\ Statement of Professor Michael J. Gerhardt Before the House
Subcommittee on the Constitution of the House Judiciary Committee
Regarding the Background and History of Impeachment (November 9, 1998)
at 13 (``Subcommittee Hearings'').
\53\ Ibid. (emphasis added).
---------------------------------------------------------------------------
There is no such nexus here. Indeed the allegations are so far
removed from official wrongdoing that their assertion here threatens to
weaken significantly the Presidency itself. As the more than 400
prominent historians and constitutional scholars warned in their public
statement: ``[t]he theory of impeachment underlying these efforts is
unprecedented in our history . . . [and is] are extremely ominous for
the future of our political institutions. If carried forward, [the
current processes] will leave the Presidency permanently disfigured and
diminished, at the mercy as never before of the caprices of any
Congress.\54\
---------------------------------------------------------------------------
\54\ Statement of Historians.
---------------------------------------------------------------------------
Similarly, in a letter to the House of Representatives, an
extraordinary group of 430 legal scholars argued together that these
offenses, even if proven true, did not rise to the level of an
impeachable offense.\55\ The gist of these scholarly objections is that
the alleged wrongdoing is insufficiently connected to the exercise of
public office. Because the articles charge wrongdoing of an essentially
private nature, any harm such behavior poses is too removed from our
system of government to justify unseating the President. Numerous
scholars, opining long before the current controversy, have emphasized
the necessary connection of impeachable wrongs to threats against the
state itself. They have found that impeachment should be reserved for:
---------------------------------------------------------------------------
\55\ See Letter of 430 Law Professors to Messrs. Gingrich,
Gephardt, Hyde and Conyers (released Nov. 6, 1998).
---------------------------------------------------------------------------
``offenses against the government''; \56\
---------------------------------------------------------------------------
\56\ Labovitz, Presidential Impeachment at 26.
---------------------------------------------------------------------------
``political crime against the state''; \57\
---------------------------------------------------------------------------
\57\ Berger, Impeachment at 61.
---------------------------------------------------------------------------
``serious assaults on the integrity of the processes of
government''; \58\
---------------------------------------------------------------------------
\58\ Charles L. Black, Jr. Impeachment: A Handbook 38-39 (1974).
---------------------------------------------------------------------------
``wrongdoing convincingly established [and] so egregious
that [the President's] continuation in office is intolerable''; \59\
---------------------------------------------------------------------------
\59\ Labovitz Presidential Impeachment at 110.
---------------------------------------------------------------------------
``malfeasance or abuse of office,'' \60\ bearing a
``functional relationship'' to public office; \61\
---------------------------------------------------------------------------
\60\ Rotunda, 76 Ky. L.J. at 726.
\61\ Ibid.
---------------------------------------------------------------------------
``great offense[s] against the federal government''; \62\
---------------------------------------------------------------------------
\62\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
``acts which, like treason and bribery, undermine the
integrity of government.'' \63\
---------------------------------------------------------------------------
\63\ Committee on Federal Legislation of the Bar Ass'n of the City
of New York, The Law of Presidential Impeachment 18 (1974).
The articles contain nothing approximating that level of wrongdoing.
Indeed the House Managers themselves acknowledge that ``the President's
[alleged] perjury and obstruction do not directly involve his official
conduct.'' \64\
---------------------------------------------------------------------------
\64\ House Br. at 109.
---------------------------------------------------------------------------
b. To Make Impeachable Offenses of These Allegations would
Forever Lower the Bar in a Way Inimical to the
Presidency and to Our Government of Separated
powers
These articles allege (1) sexual misbehavior, (2) statements about
sexual misbehavior and (3) attempts to conceal the fact of sexual
misbehavior. These kinds of wrongs are simply not subjects fit for
impeachment. To remove a President on this basis would lower the
impeachment bar to an unprecedented level and create a devastating
precedent. As Professor Arthur Schlesinger, Jr., addressing this
problem, has testified:
``Lowering the bar for impeachment creates a novel . . .
revolutionary theory of impeachment, [and] . . . would send us on an
adventure with ominous implications for the separation of powers that
the Constitution established as the basis of our political order. It
would permanently weaken the Presidency.'' \65\
---------------------------------------------------------------------------
\65\ Subcommittee Hearings (Written Statement of Arthur
Schlesinger, Tr. at 2).
---------------------------------------------------------------------------
The lowering of the bar that Professor Schlesinger described must
stop here. Professor Jack Rakove made a similar point when he stated
that ``Impeachment [is] a remedy to be deployed only in . . .
unequivocal cases where . . . the insult to the constitutional system
is grave.'' \66\ Indeed, he said, there ``would have to be a high
degree of consensus on both sides of the aisle in Congress and in both
Houses to proceed.'' \67\
---------------------------------------------------------------------------
\66\ Subcommittee Hearings (Written Statement of Professor Jack
Rakove at 4).
\67\ Subcommittee Hearings (Oral Testimony of Professor Rakove).
---------------------------------------------------------------------------
Bipartisan consensus was, of course, utterly lacking in the House
of Representatives. No civil officer--no President, no judge, no
cabinet member--has ever been impeached by so narrow a margin as
supported the articles exhibited here.\68\ The closeness and partisan
division of the vote reflect the constitutionally dubious nature of the
charges.
---------------------------------------------------------------------------
\68\ The present articles were approved by margins of 228-206
(Article I) and 221-212 (Article II). All prior resolutions were
approved by substantially wider margins in the House of
Representatives. See Impeachments of the following civil officers:
Judge John Pickering (1803) (45-8; Justice Samuel Chase (1804) (73-32;
Judge James Peck (1830) 143-49; Judge West Humphreys (1862) (no vote
available, but resolution of impeachment voted ``without division,''
see 3 Hinds Precedents of the House of Representatives Sec. 2386);
President Andrew Johnson (1868) (128-47; Judge James Belknap (1876)
(unanimous); Judge Charles Swayne (1903) (unanimous); Judge Robert
Archibald (1912) (223-1); Judge George English (1925) (306-62); Judge
Harold Louderback (1932) (183-143); Judge Halsted Ritter (1933) (181-
146); Judge Harry Claiborne (1986) (406-0); Judge Walter L. Nixon, Jr.
(1988) (417-0); Judge Alcee L. Hastings (1988) (413-3). The impeachment
resolution against Senator William Bount in 1797 was by voice vote and
so no specific count was recorded.
---------------------------------------------------------------------------
When articles are based on sexual wrongdoing, and when they have
passed only by the narrowest, partisan margin, the future of our
constitutional politics is in the balance. The very stability of our
Constitutional government may depend upon the Senate's response to
these articles. Nothing about this case justifies removal of a twice-
elected President, because no ``high Crimes and Misdemeanors'' are
alleged.
5. Comparisons to Impeachment of Judges Are Wrong
The House Managers suggest that perjury per se is an impeachable
offense because (1) several federal judges have been impeached and
removed for perjury, and (2) those precedents control this case. See
House Br. at 95-105. That notion is erroneous. It is blind both to the
qualitative differences among different allegations of perjury and the
very basic differences between federal judges and the President.
First, the impeachment and removal of a Federal judge, while a very
solemn task, implicates very different considerations than the
impeachment of a president. Federal judges are appointed without public
approval and enjoy life tenure without public accountability.
Consequently, they hold their offices under our Constitution only
``during good behavior.'' Under our system, impeachment is the only way
to remove a Federal judge from office--even a Federal judge sitting in
jail.\69\ By contrast, a president is elected by the Nation to a term,
limited to a specified number of years, and he faces accountability in
the form of elections.
---------------------------------------------------------------------------
\69\ Former House Judiciary Committee Chairman Peter Rodino, during
a recent judicial impeachment proceeding, cogently explained the unique
position that Federal judges hold in our Constitutional system:
``The judges of our Federal courts occupy a unique position of
trust and responsibility in our government: They are the only members
of any branch that hold their office for life; they are purposely
insulated from the immediate pressures and shifting currents of the
body politic. But with the special prerogative of judicial independence
comes the most exacting standard of public and private conduct . . .
The high standard of behavior for judges is inscribed in article III of
the Constitution, which provides that judges ``shall hold offices
during good behavior. . . .'' (132 Cong. Rec. H4712 (July 22, 1986)
(impeachment of Judge Harry E. Claiborne) (emphasis added).
---------------------------------------------------------------------------
Second, whether an allegedly perjurious statement rises to the
level of an impeachable offense depends necessarily on the particulars
of that statement, and the relation of those statements to the
fulfillment of official responsibilities. In the impeachment of Judge
Harry Claiborne, the accused had been convicted of filing false income
tax returns.\70\ As a judge, Claiborne was charged with the
responsibility of hearing tax-evasion cases. Once convicted, he simply
could not perform his official functions because his personal probity
had been impaired such that he could no longer be an arbiter of others'
oaths. His wrongdoing bore a direct connection to the performance of
his judicial tasks. The inquiry into President Nixon disclosed similar
wrongdoing, but the House Judiciary Committee refused to approve an
article of impeachment against the President on that basis. The case of
Judge Walter Nixon is similar. He was convicted of making perjurious
statements concerning his intervention in a judicial proceeding, which
is to say, employing the power and prestige of his office to obtain
advantage for a party.\71\ Although the proceeding at issue was not in
his court, his use of the judicial office for the private gain of a
party to a judicial proceeding directly implicated his official
functions. Finally, Judge Alcee Hastings was impeached and removed for
making perjurious statements at his trial for conspiring to fix cases
in his own court.\72\ As with Judges Claiborne and Nixon, Judge
Hastings' perjurious statements were immediately and incurably
detrimental to the performance of his official duties. The allegations
against the President, which (as the Managers acknowledge) ``do not
directly involve his official conduct,'' House Br. at 109, simply do
not involve wrongdoing of gravity sufficient to foreclose effective
performance of the Presidential office.
---------------------------------------------------------------------------
\70\ Proceedings of the United States Senate in the Impeachment
Trial of Harry E. Claiborne, 99th Cong., 2d Sess., S. Doc. 99-48 at
291-98 (1986) (``Claiborne Proceedings'').
\71\ Proceedings of the United States Senate in the Impeachment
Trial of Walter L. Nixon, Jr., 101st Cong., 1st Sess., S. Doc. 101-22
at 430-440 (1989) (``Judge Nixon Proceedings'').
\72\ See Proceedings of the United States Senate in the Impeachment
Trial of Alcee L. Hastings, 101st Cong., 1st Sess., S. Doc. 101-18
(1989).
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Impeachment scholar John Labovitz, writing of the judicial
impeachment cases predating Watergate, observed that:
``For both legal and practical reasons, th[e] [judicial
impeachment] cases did not necessarily affect the grounds for
impeachment of a president. The practical reason was that it seemed
inappropriate to determine the fate of an elected chief executive on
the basis of law developed in proceedings directed at petty misconduct
by obscure judges. The legal reason was that the Constitution provides
that judges serve during good behavior. . . . [T]he [good behavior]
clause made a difference in judicial impeachments, confounding the
application of these cases to presidential impeachment''.\73\
---------------------------------------------------------------------------
\73\ Labovitz, Presidential Impeachment at 92-93 (emphasis added).
Thus, the judicial precedents relied upon by the House Managers have
only ``limited force when applied to the impeachment of a President.''
\74\
---------------------------------------------------------------------------
\74\ Office of Senate Legal Counsel, Memorandum on Impeachment
Issues at 26 (Oct. 7, 1988) (summarizing view of some commentators).
---------------------------------------------------------------------------
The most telling rejoinder to the House's argument comes from
President Ford. His definition of impeachable offenses, offered as a
congressman in 1970 in connection with an effort to impeach Associate
Justice William O. Douglas--that it is, in essence, ``whatever the
majority of the House of Representatives considers it to be''--has been
cited. Almost never noted is the more important aspect of then-
Congressman Ford's statement--that, in contrast to the life-tenure of
judges, because presidents can be removed by the electorate, ``to
remove them in midterm . . . would indeed require crimes of the
magnitude of treason and bribery.'' \75\
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\75\ 116 Cong. Rec. 11912, 11913, (1970).
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b. the standard of proof
Beyond the question of what constitutes an impeachable offense,
each Senator must confront the question of what standard the evidence
must meet to justify a vote of ``guilty.'' The Senate has, of course,
addressed this issue before--most recently in the trials of Judge
Claiborne and Judge Hastings. We recognize that the Senate chose in the
Claiborne proceedings, and reaffirmed in the Hastings trial, not to
impose itself any single standard of proof but, rather, to leave that
judgment to the conscience of each Senator. Many Senators here today
were present for the debate on this issue and chose a standard by which
to test the evidence. For many Senators, however, the issue is a new
one. And none previously has had to face the issue in the special
context of a Presidential impeachment.
We argued before the House Judiciary Committee that it must treat a
vote to impeach as, in effect, a vote to remove the President from
office and that a decision of such moment ought not to be based on
anything less than ``clear and convincing'' evidence. That standard is
higher than the ``preponderance of the evidence'' test applicable to
the ordinary civil case but lower than the beyond a reasonable doubt
test applicable to a criminal case. Nonetheless, we felt that the clear
and convincing standard was consistent with the grave responsibility of
triggering a process that might result in the removal of a President.
In fact, it had been the standard agreed upon by both Watergate
Committee majority and minority counsel (as well as counsel for
President Nixon) twenty-four years ago.
Certainly no lesser standard should be applied in the Senate.
Indeed, we submit that the gravity of the decision the Senate must
reach should lead each Senator to go further and ask whether the House
has established guilt beyond a reasonable doubt.
Both lawyers and laymen too often treat the standard of proof as
meaningless legal jargon with no application to the real world of
difficult decisions. But it is much more than that. In our system of
justice, it is the guidepost that shows the way through the labyrinth
of conflicting evidence. It tells the factfinder to look within and
ask: ``Would I make the most important decisions of my life based on
the degree of certainty I have about these facts?'' In the unique
legal-political setting of an impeachment trial, it protects against
partisan overreaching, and it assures the public that this grave
decision has been made with care. In sum, it is a disciplining force to
carry into the deliberations.
This point is given added weight by the language of the
Constitution. Article I, section 3, clause 6 of the United States
Constitution gives to the Senate ``the Power to try all Impeachments. .
. . and no Person shall be convicted without the Concurrence of two
thirds of the Members present.'' (Emphasis added.) Use of the words
``try'' and ``convicted'' strongly suggests that an impeachment trial
is akin to a criminal proceeding and that the beyond-a-reasonable-doubt
standard of criminal proceedings should be used. This position was
enunciated in the Minority Views contained in the Report of the House
Judiciary Committee on the impeachment proceedings against President
Nixon (H. Rep. 93-1305 at 377-381) and has been espoused as the correct
standard by such Senators as Robert Taft, Jr., Sam Ervin, Strom
Thurmond and John Stennis.\76\
---------------------------------------------------------------------------
\76\ Claiborne Proceedings at 106-107.
---------------------------------------------------------------------------
Even if the clear and convincing standard nonetheless is
appropriate for judicial impeachments, it does not follow that it
should be applied where the Presidency itself is at stake. With judges,
the Senate must balance its concern for the independence of the
judiciary against the recognition that, because judges hold life-time
tenure, impeachment is the only available means to protect the public
against those who are corrupt. On the other hand, when a President is
on trial, the balance to be struck is quite different. Here the Senate
is asked, in effect, to overturn the results of an election held two
years ago in which the American people selected the head of one of the
three coordinate branches of government. It is asked to take this
action in circumstances where there is no suggestion of corruption or
misuse of office--or any other conduct that places our system of
government at risk in the two remaining years of the President's term,
when once again the people will judge who they wish to lead them. In
this setting, the evidence should be tested by the most stringent
standard we know--proof beyond a reasonable doubt. Only then can the
American people be confident that this most serious of constitutional
decisions has been given the careful consideration it deserves.
IV. The President Should Be Acquitted on Article I
The evidence does not support the allegations of Article I.
a. applicable law
Article I alleges perjury, along with false and misleading
statements, before a federal grand jury. Perjury is a statutory crime
that is set forth in the United States Code at 18 U.S.C. Sec. 1623.\77\
Before an accused may be found guilty of perjury before a grand jury, a
prosecutor must prove all elements of the offense.
---------------------------------------------------------------------------
\77\ Section 1623 provides in relevant part:
``(a) 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 . . . knowing the same to contain any false material
declaration, shall be fined under this title or imprisoned not more
than five years, or both.'' (18 U.S.C. Sec. 1623(a) (1994)).
---------------------------------------------------------------------------
In the criminal law context, Sec. 1623 requires proof beyond a
reasonable doubt of the following elements: that an accused (1) while
under oath (2) knowingly (3) made a false statement as to (4) material
facts. The ``materiality'' element is fundamental: it means that
testimony given to a grand jury may be found perjurious only if it had
a tendency to influence, impede, or hamper the grand jury's
investigation. See, e.g., United States v. Reilly, 33 F.3d 1396, 1419
(3d Cir. 1994); United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir.
1997). If an answer provided to a grand jury has no impact on the grand
jury's investigation, or if it relates to a subject that the grand jury
is not considering, it is incapable as a matter of law of being
perjurious. Thus, alleged false testimony concerning details that a
grand jury is not investigating cannot as a matter of law constitute
perjury, since such testimony by definition is immaterial. See, e.g.,
United States v. Lasater, 535 F.2d 1041, 1048 (8th Cir. 1976) (where
defendant admitted signing letter and testified to its purpose, his
denial of actually writing letter was not material to grand jury
investigation and was incapable of supporting perjury charge); United
States v. Pyle, 156 F.2d 852, 856 (D.C. Cir. 1946) (details such as
whether defendant ``paid the rent on her Washington apartment, as she
testified that she did'' were ``not pertinent to the issue being
tried;'' therefore, ``the false statement attributed to [defendant] was
in no way material in the case in which she made it and did not
constitute perjury within the meaning of the statute.'') In other
words, mere falsity--even knowing falsity--is not perjury if the
statement at issue is not ``material'' to the matter under
consideration.
An additional ``element'' of perjury prosecutions, at least as a
matter of prosecutorial practice, is that a perjury conviction cannot
rest solely on the testimony of one witness. In United States v.
Weiler, 323 U.S. 606, 608-09 (1945), the Supreme Court observed that
the ``special rule which bars conviction for perjury solely upon the
evidence of a single witness is deeply rooted in past centuries.''
While Sec. 1623 does not literally incorporate the so-called ``two-
witness'' rule, the case law makes clear that perjury prosecutions
under this statute require a high degree of proof, and that prosecutors
should not, as a matter of reason and practicality, try to bring
perjury prosecutions based solely on the testimony of a single witness.
As the Supreme Court has cautioned, perjury cases should not rest
merely upon ``an oath against an oath.'' Id. at 609.
Indeed, that is exactly the point that experienced former federal
prosecutors made to the House Judiciary Committee. A panel of former
federal prosecutors, some Republican, testified that they would not
charge perjury based upon the facts in this case. For example, Mr.
Thomas Sullivan, a former United States Attorney for the Northern
District of Illinois, told the Committee that ``the evidence set out in
the Starr report would not be prosecuted as a criminal case by a
responsible federal prosecutor.'' See Transcript of ``Prosecutorial
Standards for Obstruction of Justice and Perjury'' Hearing (Dec. 9,
1998); see generally Minority Report at 340-47. As Mr. Sullivan
emphasized, ``because perjury and obstruction charges often arise from
private dealings with few observers, the courts have required either
two witnesses who testified directly to the facts establishing the
crime, or, if only one witness testifies to the facts constituting the
alleged perjury, that there be substantial corroborating proof to
establish guilt.'' See Transcript of ``Prosecutorial Standards for
Obstruction of Justice and Perjury'' Hearing (Dec. 9, 1998). The other
prosecutors on the panel agreed. Mr. Richard J. Davis, who served as an
Assistant United States Attorney for the Southern District of New York
and as a Task Force Leader for the Watergate Special Prosecution Force,
testified that ``it is virtually unheard of to bring a perjury
prosecution based solely on the conflicting testimony of two people.''
Id. A review of the perjury alleged here thus requires both careful
scrutiny of the materiality of any alleged falsehood and vigilance
against conviction merely on an ``oath against an oath.'' Weiler, 323
U.S. at 609.
b. structure of the allegations
Article I charges that the President committed perjury when he
testified before the grand jury on August 17, 1998. It alleges 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 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.'' As noted above, the article
does not provide guidance on the particular statements alleged to be
perjurious, false and misleading. But by reference to the different
views in the House Committee Report, the presentation of House Majority
Counsel David Schippers, the OIC Referral, and the Trial Memorandum of
the House Managers, we have attempted to identify certain statements
from which members of the House might have chosen.
Subpart (1) alleges that the President committed perjury before the
grand jury about the details of his relationship with Ms. Lewinsky--
including apparently such insignificant matters as mis-remembering the
precise month on which certain inappropriate physical contact started,
understating as ``occasional'' his infrequent inappropriate physical
and telephone contacts with Ms. Lewinsky over a period of many months,
characterizing their relationship as starting as a friendship, and
touching Ms. Lewinsky in certain ways and for certain purposes during
their intimate encounters.
Subpart (2) of Article I alleges that the President made
perjurious, false and misleading statements to the grand jury when he
testified about certain responses he had given in the Jones civil
deposition. The House Managers erroneously suggest that in the grand
jury President Clinton was asked about and reaffirmed his entire
deposition testimony, including his deposition testimony about whether
he had been alone with Ms. Lewinsky. See House Br. at 2, 60. That is
demonstrably false. Those statements that the President did in fact
make in the grand jury, by way of explaining his deposition testimony,
were truthful. Moreover, to the extent this subpart repeats allegations
of Article II of the original proposed articles of impeachment, the
full House of Representatives has explicitly considered and
specifically rejected those charges, and their consideration would
violate the impeachment procedures mandated by the Constitution.
Subparts (3) and (4) allege that the President lied in the grand
jury when he testified about certain activities in late 1997 and early
1998. They are based on statements about conduct that the House
Managers claim constitutes obstruction of justice under Article II and
in many respects track Article II. Compare Article I (3) (perjury in
the grand jury concerning alleged ``prior false and misleading
statements he allowed his attorney to make to a Federal judge'') with
Article II (5) (obstructing justice by ``allow[ing] his attorney to
make false and misleading statements to a Federal judge) and compare
Article I (4) (perjury in the grand jury concerning alleged ``corrupt
efforts to influence testimony of witnesses and to impede the discovery
of evidence'') with Article II (3), (6), (7) (obstructing justice when
he (3) ``engaged in, encouraged, or supported a scheme to conceal
evidence,'' i.e., gifts; (6) ``corruptly influence[d] the testimony''
of Betty Currie; (7) ``made false and misleading statements to
potential witnesses in a Federal grand jury proceeding in order to
corruptly influence the testimony of those witnesses''). These perjury
allegations are without merit both because the obstruction charges upon
which they are based are wrong and because the statements that
President Clinton made in the grand jury about these charges are true.
Because of the close parallel, and for sake of brevity in this
submission, we have dealt comprehensively with these overlapping
allegations in the next section addressing Article II (obstruction of
justice), and address them only briefly in this section.
c. response to the particular allegations in article i
The president testified truthfully before the grand jury. There
must be no mistake about what the President said. He admitted to the
grand jury that he had engaged in an inappropriate intimate
relationship with Ms. Lewinsky over a period of many months. He
admitted to the grand jury that he had been alone with Ms. Lewinsky. He
admitted to the grand jury that he had misled his family, his friends
and staff, and the entire Nation about the nature of that relationship.
No one who heard the President's August 17 speech or watched the
President's videotaped grand jury testimony had any doubt that he had
admitted to an ongoing physical relationship with Ms. Lewinsky.
The article makes general allegations about his testimony but does
not specify alleged false statements, so direct rebuttal is impossible.
In light of this uncertainty, we set forth below responses to the
allegations that have been made by the House Managers, the House
Committee, and the OIC, even though they were not adopted in the
article, in an effort to try to respond comprehensively to the charges.
1. The President denies that he made materially false or misleading
statements to the grand jury about ``the nature and details of
his relationship'' with Monica Lewinsky
(a) Early in his grand jury testimony, the President specifically
acknowledged that he had had a relationship with Ms. Lewinsky that
involved ``improper intimate contact.'' App. at 461. He described how
the relationship began and how it ended early in 1997--long before any
public attention or scrutiny.
In response to the first question about Ms. Lewinsky, the President
read the following statement:
``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 17th, 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 take full responsibility for my actions.
``While I will provide the grand jury whatever other information I
can, because of privacy considerations affecting my family, myself, and
others, and in an effort to preserve the dignity of the office I hold,
this is all I will say about the specifics of these particular matters.
``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 denied at my January 17th, 1998 deposition; and questions
concerning alleged subornation of perjury, obstruction of justice, and
intimidation of witnesses.''
App. at 460-62. The President occasionally referred back to this
statement--but only when asked very specific questions about his
physical relationship with Ms. Lewinsky--and he otherwise responded
fully to four hours of interrogation about his relationship with Ms.
Lewinsky, his answers in the civil deposition, and his conduct
surrounding the Jones deposition.
The articles are silent on precisely what statements the President
made about his relationship with Ms. Lewinsky that were allegedly
perjurious. But between the House Brief and the Committee Report, both
drafted by the Managers, it appears there are three aspects of this
prepared statement that are alleged to be false and misleading because
Ms. Lewinsky's recollection differs--albeit with respect to certain
very specific, utterly immaterial matters: first, when the President
admitted that inappropriate conduct occurred ``on certain occasions in
early 1996 and once in 1997,'' he allegedly committed perjury because
in the Managers' view, the first instance of inappropriate conduct
apparently occurred a few months prior to ``early 1996,'' see House Br.
at 53; second, when the President admitted to inappropriate conduct
``on certain occasions in early 1996 and once in 1997,'' he allegedly
committed perjury because, according to the House Committee, there were
eleven total sexual encounters and the term ``on certain occasions''
implied something other than eleven. see Committee Report at 34; and
third, when the President admitted that he ``had occasional telephone
conversations with Ms. Lewinsky that included sexual banter,'' he
allegedly committed perjury because, according to the House Committee
(although not Ms. Lewinsky), seventeen conversations may have included
sexually explicit conversation, ibid. Apart from the fact that the
record itself refutes some of the allegations (for example, seven of
the seventeen calls were only ``possible,'' according even to the OIC,
App. at 116-26, and Ms. Lewinsky recalled fewer than seventeen, App. at
744), simply to state them is to reveal their utter immateriality. \78\
---------------------------------------------------------------------------
\78\ Even the OIC Referral did not allege perjury based on these
latter two theories and mentioned the first only briefly.
---------------------------------------------------------------------------
The President categorically denies that his prepared statement was
perjurious, false and misleading in any respect. He offered his written
statement to focus the questioning in a manner that would allow the OIC
to obtain the information it needed without unduly dwelling on the
salacious details of his relationship. It preceded almost four hours of
follow-up questions about the relationship. It is utterly remarkable
that the Managers now find fault even with the President's very painful
public admission of inappropriate conduct.
In any event, the charges are totally without merit. The Committee
Report takes issue with the terms ``on certain occasions'' and
``occasional,'' but neither phrase implies a definite or maximum
number. ``On certain occasions''--the phrase introducing discussion of
the physical contacts--has virtually no meaning other than ``it
sometimes happened.'' It is unfathomable what objective interpretation
the Majority gives to this phrase to suggest that it could be false. An
attack on the phrase ``occasional''--the phrase introducing discussion
of the inappropriate telephone contacts--is little different.
Dictionaries define ``occasional'' to mean ``occurring at irregular or
infrequent intervals'' or ``now and then.'' \79\ It is a measure of the
Committee Report's extraordinary overreaching to suggest that the
eleven occasions of intimate contact alleged by the House Majority over
well more than a year did not occur, by any objective reading, ``on
certain occasions.'' And since even the OIC Referral acknowledges that
the inappropriate telephone contact occurred not ``at least 17 times''
(as the Committee Report and the Managers suggest, Committee Report at
8; House Br. at 11) but between 10 and 15 times over a 23-month
period,\80\ ``occasional'' would surely seem not just a reasonable
description but the correct one.
---------------------------------------------------------------------------
\79\ Webster's Collegiate Dictionary (10th ed. 1997) p. 803; see
also Webster's II New Riverside Dictionary (1988) p. 812 (``occurring
from time to time; infrequent''); Chambers English Dictionary (1988
ed.) p. 992 (``occurring infrequently, irregularly, now and then'');
The American Heritage Dictionary (2d Coll. ed.) (``occurring from time
to time''); Webster's New World Dictionary (3d Coll. ed.) p. 937 (``of
irregular occurrence; happening now and then; infrequent'').
\80\ The OIC chart of contacts between Ms. Lewinsky and the
President identifies ten phone conversations ``including phone sex''
and seven phone conversations ``possibly'' including phone sex. App. at
116-26.
---------------------------------------------------------------------------
Finally, these squabbles are utterly immaterial. Even if the
President and Ms. Lewinsky disagreed as to the precise number of such
encounters, it is of no consequence whatsoever to anything, given his
admission of their relationship. This is precisely the kind of
disagreement that the law does not intend to capture as perjury.
The date of the first intimate encounter is also totally
immaterial. Having acknowledged the relationship, the President had no
conceivable motive to misstate the date on which it began. The Managers
assert that the President committed perjury when he testified about
when the relationship began, but they offer no rationale for why he
would have done so.\81\ The President had already made a painful
admission. Any misstatement about when the intimate relationship began
(if there was a misstatement) cannot justify a charge of perjury, let
alone the removal of the President from office. As Chairman Hyde
himself stated in reference to this latter allegation, ``It doesn't
strike me as a terribly serious count.'' Remarks of Chairman Hyde at
Perjury Hearing of December 1, 1998.
---------------------------------------------------------------------------
\81\ The Committee Report did not adopt the baseless surmise of the
OIC Referral, i.e., that the President lied about the starting date of
his relationship because Ms. Lewinsky was still an intern at the time,
whereas she later became a paid employee. For good reason. The only
support offered by the Referral for this conjecture is a comment Ms.
Lewinsky attributes to the President in which he purportedly said that
her pink ``intern pass'' ``might be a problem.'' Referral at 149-50.
But even Ms. Lewinsky indicated that the President was not referring to
her intern status, but rather was noting that, as an intern with a pink
``intern pass,'' she had only limited access to the West Wing of the
White House. App. at 1567 (Lewinsky FBI 302 8/24/98). Moreover, Ms.
Lewinsky had in fact become an employee by late 1995, so even under the
OIC theory the President could have acknowledged such intimate contact
in 1995.
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(b) The Managers also assert that the President lied when, after
admitting that he had an inappropriate sexual relationship with Ms.
Lewinsky, he maintained that he did not touch Ms. Lewinsky in a manner
that met the definition used in the Jones deposition. See House Br. at
54. The President admits that he engaged in inappropriate physical
contact with Ms. Lewinsky, but has testified that he did not engage in
activity that met the convoluted and truncated definition he was
presented in the Jones deposition.\82\
---------------------------------------------------------------------------
\82\ At the deposition, the Jones attorneys presented a broad,
three-part definition of the term ``sexual relations'' to be used by
them in the questioning. Judge Wright ruled that two parts of the
definition were ``too broad'' and eliminated them. Dep. at 22. The
President, therefore, was presented with the following definition (as
he understood it to have been amended by the Court):
Definition of Sexual Relations--
For the purposes of this deposition, a person engages in ``sexual
relations'' when the person knowingly engages in or causes--
(1) contact with the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person with an intent to arouse or gratify the
sexual desire of any person;
(2) contact between any part of the person's body or an object and
the genitals and anus of another person; or
(3) contact between the genitals or anus of the person and any part
of another person's body.
``Contact'' means intentional touching, either directly or through
clothing.
---------------------------------------------------------------------------
It is important to note that this Jones definition was not of the
President's making. It was one provided to him by the Jones' lawyers
for their questioning of him. Under that definition, oral sex performed
by Ms. Lewinsky on the President would not constitute sexual relations,
while touching certain areas of Ms. Lewinsky's body with the intent to
arouse her would meet the definition. The President testified in the
grand jury that [he] believed that oral sex performed on him fell
outside the Jones definition. App. at 544.\83\ As strange as this may
sound, a totally reasonable reading of the definition supports that
conclusion, as many commentators have agreed.\84\
---------------------------------------------------------------------------
\83\ The Managers erroneously suggest that the President's
explanation of his understanding of the Jones deposition definition of
``sexual relations'' is a recent fabrication rather than an accurate
account of his view at the time of the deposition. House Br. at 54-55.
To support this contention, the Managers, among other meritless
arguments, point to a document produced by the White House entitled
``January 24, 1998 Talking Points,'' stating that oral sex would
constitute a sexual relationship for the President. Id. at 55. This
document, however, was not created, reviewed or approved by the
President and did not represent his views. It is irrelevant to the
issue at hand for the additional reason that it does not speak by its
own terms to the meaning of the contorted definition of ``sexual
relations'' used in the Jones deposition.
\84\ See, e.g., Perjury Hearing of December 1, 1998 (Statement of
Professor Stephen A. Saltzburg at 2) (``That definition defined certain
forms of sexual contact as sexual relations but, for reasons known only
to the Jones lawyers, limited the definition to contact with any person
for the purpose of gratification.''); MSNBC Internight, August 12, 1998
(Cynthia Alksne) (``[W]hen the definition finally was put before the
president, it did not include the receipt of oral sex''); ``DeLay Urges
a Wait For Starr's Report,'' The Washington Times (August 31, 1998)
(``The definition of sexual relations, used by lawyers for Paula Jones
when they questioned the president, was loosely worded and may not have
included oral sex''); ``Legally Accurate,'' The National Law Journal
(August 31, 1998) (``Given the narrowness of the court-approved
definition in [the Jones] case, Mr. Clinton indeed may not have
perjured himself back then if, say, he received oral sex but did not
reciprocate sexually'').
---------------------------------------------------------------------------
This claim comes down to an oath against an oath about immaterial
details concerning an acknowledged wrongful relationship.
2. The President denies that he made perjurious, false and misleading
statements to the grand jury about testimony he gave in the
Jones case
First, it is important to understand that the allegation of Article
I that the President ``willfully provided false and misleading
testimony to the grand jury concerning . . . prior perjurious, false
and misleading testimony he gave in'' the Jones deposition is premised
on a misunderstanding of the President's grand jury testimony. The
President was not asked to, and he did not, reaffirm his entire Jones
deposition testimony during his grand jury appearance. For example,
contrary to popular myth and the undocumented assertion of the House
Managers, House Br. at 2, the President was never even asked in the
grand jury about his answer to the deposition question whether he and
Ms. Lewinsky had been ``together alone in the Oval Office.'' Dep. at
52-53,\85\ and he therefore neither reaffirmed it nor even addressed
it. In fact, in the grand jury he was asked only about a small handful
of his answers in the deposition. As is demonstrated below, his
explanation of these answers were not reaffirmations or in any respect
evasive or misleading--they were completely truthful, and they do not
support a perjury allegation.
---------------------------------------------------------------------------
\85\ The only questions the OIC asked the President about being
alone with Ms. Lewinsky did not reference the deposition at all.
Instead, the OIC asked the President to elaborate on his
acknowledgement in his prepared statement before the grand jury that he
had been alone with Ms. Lewinsky, App. at 481, and to explain why he
made a statement, ``I was never alone with her'' to Ms. Currie on
January 18th. See, e.g., App. at 583.
---------------------------------------------------------------------------
The extent to which this allegation of the House Majority misses
the mark is dramatically apparent when it is compared with the OIC's
Referral. The OIC did not charge that the President's statements about
his prior deposition testimony were perjurious (apart from the charge
discussed above concerning the nature and details of his relationship
with Ms. Lewinsky).\86\ See OIC Ref. at 145. It would be remarkable to
contemplate charges beyond those brought by the OIC, particularly in
the context of a perjury claim where the OIC chose what to ask the
President and itself conducted the grand jury session.
---------------------------------------------------------------------------
\86\ Specifically, the Referral alleges that the President lied
when he testified (1) that ``he believed that oral sex was not covered
by any of the terms and definitions for sexual activity used at the
Jones deposition''; (2) that their physical contact was more limited
than Ms. Lewinsky's testimony suggests; and (3) that their intimate
relationship began in early 1996 and not late 1995. Id. at 148-49.
---------------------------------------------------------------------------
The House Managers point to a single statement made by President
Clinton in the grand jury to justify their contention that every
statement from his civil deposition is now fair game. House Br. at 60.
Specifically, the House Managers rely on President Clinton's
explanation in the grand jury of his state of mind during the Jones
deposition: ``My 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.'' App. at 532. In addition to being a true statement of his belief
as to his legal position, this single remark plainly was not intended
as and was not a broad reaffirmation of the accuracy of all the
statements the President made during the Jones deposition. Indeed,
given that he told the grand jury that he had an intimate relationship
with Ms. Lewinsky during which he was alone with her, no one who heard
the grand jury testimony could have understood it to be the unequivocal
reaffirmation that is alleged.
The Managers charge that the President did not really mean it when
he told the grand jury how he was trying to be literally truthful in
the Jones deposition without providing information about his
relationship with Ms. Lewinsky. The President had endeavored to
navigate the deposition without having to make embarrassing admissions
about his inappropriate, albeit consensual, relationship with Ms.
Lewinsky. And to do this, the President walked as close to the line
between (a) truthful but evasive or non-responsive testimony and (b)
false testimony as he could without crossing it. He sought, as he
explained to the grand jury, to give answers that were literally
accurate, even if, as a result, they were evasive and thus misleading.
We repeat: what is at issue here is not the underlying statements made
by the President in the deposition, but the President's explanations in
the grand jury of his effort to walk a fine line. Anyone who reads or
watches that deposition knows the President was in fact trying to do
precisely what he has admitted--to give the lawyers grudging,
unresponsive or even misleading answers without actually lying. However
successful or unsuccessful he might have been, there is no evidence
that controverts the fact that this was indeed the President's
intention.
An examination of the statements that the President actually did
make in the grand jury about his deposition testimony further
demonstrates the lack of merit in this article. In the grand jury, the
President only was asked about three areas of his deposition testimony
that were covered in the failed impeachment article alleging perjury in
the civil deposition.\87\ The first topic was the nature of any
intimate contact with Ms. Lewinsky and has already been addressed
above.
---------------------------------------------------------------------------
\87\ The proposed article of impeachment alleging perjury in the
civil deposition, like the two that are before the Senate, did not
identify any specific instances of false testimony, but we have made
our comparison with the Committee Report's elaboration of the
deposition perjury article as it undoubtedly represents the largest
universe of alleged perjurious statements.
---------------------------------------------------------------------------
The second topic was the President's testimony about his knowledge
of gifts he exchanged with Ms. Lewinsky. In his grand jury testimony,
the President had the following exchange with the OIC:
Q: When you testified in the Paula Jones case, this was only two
and a half weeks after you had given her these six gifts, you were
asked, at page 75 in your deposition, lines 2 through 5, ``Well, have
you ever given any gifts to Monica Lewinsky?'' And you answered, ``I
don't recall.''
And you were correct. You pointed out that you actually asked them,
for prompting, ``Do you know what they were?''
A: I think what I meant there was I don't recall what they were,
not that I don't recall whether I had given them. And then if you see,
they did give me these specifics, and I gave them quite a good
explanation here. I remembered very clearly what the facts were about
The Black Dog. . . .
App. at 502-03. The President's explanation that he could not recall
the exact gifts that he had given Ms. Lewinsky and that he
affirmatively sought prompting from the Jones lawyers is entirely
consistent with his deposition testimony. This record plainly does not
support a charge of perjury.
The third and last topic was the President's deposition testimony
that Ms. Lewinsky's affidavit statement denying having a sexual
relationship with the President was correct:
Q: And you indicated that it [Ms. Lewinsky's affidavit statement
that she had no sexual relationship with him] was absolutely correct.
A: I did. . . . I believe at the time that she filled out this
affidavit, if she believed that the definition of sexual relationship
was two people having intercourse, then this is accurate. And I believe
that this is the definition that most ordinary Americans would give it.
. . .
App. at 473. The President's grand jury testimony was truthful. As Ms.
Lewinsky and Ms. Tripp discussed long before any of this matter was
public, this was in fact Ms. Lewinsky's definition of ``sex'' and
apparently the President's as well. See Supp. at 2664 (10/3/97 Tape);
see also App. at 1558 (Lewinsky FBI 302 8/19/98). There is no evidence
whatever that the President did not believe this definition of sexual
relations, and his belief finds support in dictionary definitions, the
courts and commentators.\88\ Moreover, the record establishes that Ms.
Lewinsky shared this view.\89\ Since the President's grand jury
testimony about his understanding is corroborated both by dictionaries
and by his prior statements to Ms. Lewinsky, it simply cannot be
labeled ``wrong'' or, more seriously, ``perjurious.''
---------------------------------------------------------------------------
\88\ As one court has stated, ``[i]n common parlance the terms
`sexual intercourse' and `sexual relations' are often used
interchangeably.'' J.Y. v. D.A, 381 N.E.2d 1270, 1273 (Ind. App. 1978).
Dictionary definitions make the same point:
Webster's Third New International Dictionary (1st ed.
1981) at 2082, defines ``sexual relations'' as ``coitus;''
Random House Webster's College Dictionary (1st ed. 1996)
at 1229, defines ``sexual relations'' as ``sexual intercourse;
coitus;''
Merriam-Webster's Collegiate Dictionary (10th ed. 1997) at
1074, defines ``sexual relations'' as ``coitus;''
Black's Law Dictionary (Abridged 6th ed. 1991) at 560,
defines ``intercourse'' as ``sexual relations;'' and
Random House Compact Unabridged Dictionary (2d ed. 1996)
at 1775, defines ``sexual relations'' as ``sexual intercourse;
coitus.''
\89\ Ms. Lewinsky took the position early on that her contact with
the President did not constitute ``sex'' and reaffirmed that position
even after she had received immunity and began cooperating with the
OIC. For example, in one of the conversations surreptitiously taped by
Ms. Tripp, Ms. Lewinsky explained to Ms. Tripp that she ``didn't have
sex'' with the President because ``[h]aving sex is having
intercourse.'' Supp. at 2664; see also Supp. at 1066 (grand jury
testimony of Ms. Neysa Erbland stated that Ms. Lewinsky had said that
the President and she ``didn't have sex''). Ms. Lewinsky reaffirmed
this position even after receiving immunity, stating in an FBI
interview that ``her use of the term `having sex' means having
intercourse. . . .'' App. at 1558 (Lewinsky FBI 302 8/19/98). Likewise,
in her original proffer to the OIC, she wrote, ``Ms. L[ewinsky] was
comfortable signing the affidavit with regard to the `sexual
relationship' because she could justify to herself that she and the
Pres[ident] did not have sexual intercourse.'' App. at 718 (2/1/98
Proffer).
---------------------------------------------------------------------------
The President did not testify falsely and perjuriously in the grand
jury about his civil deposition testimony.
3. The President denies that he made perjurious, false and misleading
statements to the grand jury about the statements of his
attorney to Judge Wright during the Jones deposition
It is remarkable that Article I contains allegations such as this
one that even the OIC, which conducted the President's grand jury
appearance, chose not to include in the Referral (presumably because
there was no ``substantial and credible information'' to support the
claim). Subpart (3) appears to allege that the President lied in his
grand jury testimony when he characterized his state of mind in his
civil deposition as his lawyer described the Lewinsky affidavit as
meaning ``there is no sex of any kind in any manner, shape or form.''
Dep. at 53-54. Specifically, the House Managers appear to base their
perjury claim on President Clinton's grand jury statement that ``I'm
not even sure I paid attention to what he [Mr. Bennett] was saying.''
House Br. at 62.
The House Brief takes issue with President Clinton's statement that
he was ``not paying a great deal of attention to this exchange''
because, it alleges, the ``videotape [of the deposition] shows the
President looking directly at Mr. Bennett, paying close attention to
his argument to Judge Wright.'' Ibid. While it is true that the
videotape shows the President staring in what is presumably Mr.
Bennett's direction, there is no evidence whatsoever that he was indeed
``paying close attention'' to the lengthy exchange. Notably absent from
the videotape is any action on the part of the President that could be
read as affirming Mr. Bennett's statement, such as a nod of the head,
or any other activity that could be used to distinguish between a fixed
stare and true attention to the complicated sparring of counsel. The
President was a witness in a difficult and complex deposition and, as
he testified, he was ``focussing on [his] answers to the questions.''
App. at 477. It is a safe bet that the common law has never seen a
perjury charge based on so little.\90\
---------------------------------------------------------------------------
\90\ This allegation is nearly identical to the allegation of
Article II(5), and, for the sake of brevity, it is addressed at greater
length in the response to Article II, below.
---------------------------------------------------------------------------
4. The President denies that he made perjurious, false and misleading
statements to the grand jury when he denied attempting ``to
influence the testimony of witnesses and to impede the
discovery of evidence'' in the Jones case
The general language of the final proviso of Article I, according
to the House Managers, is meant to signify a wide range of allegations,
see House Br. at 60-69, although none were thought sufficiently
credible to be included in the OIC Referral. These allegations were not
even included in the summary of the Starr evidence presented to the
Committee on October 5, 1998, by House Majority Counsel Schippers. They
are nothing more than an effort to inflate the perjury allegations by
converting every statement that the President made about the subject
matter of Article II into a new count for perjury. As the discussion of
Article II establishes, the President did not attempt to obstruct
justice. Thus, his explanations of his statements in the grand jury
were truthful.
The House Brief asserts that the President committed perjury with
respect to three areas of his grand jury testimony about the
obstruction allegations. These claims are addressed thoroughly in the
next section along with the corresponding Article II obstruction
claims, and they are addressed in a short form here. The first claim is
that the President committed perjury ``when he testified before the
grand jury that he recalled telling Ms. Lewinsky that if Ms. Jones'
lawyers requested the gifts exchanged between Ms. Lewinsky and the
President, she should provide them.'' House Br. at 63. The House
Managers contest the truthfulness of this statement by asserting that
the President was responsible for Ms. Lewinsky's transfer of gifts to
Ms. Currie in late December. In other words, if the obstruction claim
is true, they allege, this statement is not true. As is laid out in
greater detail in the next section, the House Manager's view of this
matter ignores a wealth of evidence establishing that the idea to
conceal some of the gifts she had received originated with, and was
executed by, Ms. Lewinsky. See e.g., Supp. at 557 (Currie GJ 1/27/98);
Supp. at 531 (Currie FBI 302 1/24/98); Supp. at 582 (Currie GJ 5/6/98);
App. at 1122 (Lewinsky GJ 8/20/98); see also App. at 1481 (``LEWINSKY .
. . suggested to the President that Betty Currie hold the gifts'')
(Lewinsky FBI 302 8/1/98).
Second, the House Managers contend that the President provided
perjurious testimony when he explained to the grand jury that he was
trying to ``refresh'' his recollection when he spoke with Betty Currie
on January 18, 1998 about his relationship with Ms. Lewinsky. House Br.
at 65. The House Managers completely ignore the numerous statements
that Ms. Currie makes in her testimony that support the President's
assertion that he was merely trying to gather information. For example,
Ms. Currie stated in her first interview with the OIC that ``Clinton
then mentioned some of the questions he was asked at his deposition.
Currie advised the way Clinton phrased the queries, they were both
statements and questions at the same time.'' Supp. at 534 (Currie FBI
302 1/24/98). Ms. Currie's final grand jury testimony on this issue
also supports the President's explanation of his questioning:
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 that 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.
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.
Supp. at 668 (Currie GJ 7/22/98) (emphasis added).
Ms. Currie's testimony supports the President's assertion that he
was looking for information as a result of his deposition. There is no
basis to doubt the President's explanation that his expectation of a
media onslaught prompted the conversation. See App. at 583. Indeed,
neither the testimony of Ms. Currie nor that of the President--the only
two participants in this conversation--conceivably supports the
inference that he had any other intent. The House Managers' contention
that the President's explanation to the grand jury was perjurious
totally disregards the testimony of the only two witnesses with first-
hand knowledge and has no basis in fact or in the evidence.
Finally, the House Managers contend that President Clinton ``lied
about his attempts to influence the testimony of some of his top
aides.'' House Br. at 68. The basis for this charge appears to be the
President's testimony that, although he said misleading things to his
aides about his relationship with Ms. Lewinsky, he tried to say things
that were true. Id. at 69. Once again, the record does not even
approach a case for perjury. The President acknowledged that he misled;
he tried, however, not to lie. It is a mystery how the Managers could
try to disprove this simple statement of intent.
V. The President Should be Acquitted on Article II
The evidence does not support the allegations of Article II.
a. applicable law
Article II alleges obstruction of justice, a statutory crime that
is set forth in 18 U.S.C. Sec. 1503, the ``Omnibus Obstruction
Provision.'' In the criminal law context, Sec. 1503 requires proof of
the following elements: (1) that there existed a pending judicial
proceeding; (2) that the accused knew of the proceeding; and (3) that
the defendant acted ``corruptly'' with the specific intent to obstruct
or interfere with the proceeding or due administration of justice. See,
e.g., United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989).
False statements alone cannot sustain a conviction under Sec. 1503. See
United States v. Thomas, 916 F.2d 647, 652 (11th Cir. 1990).\91\
---------------------------------------------------------------------------
\91\ 18 U.S.C. Sec. 1512 covers witness tampering. It is clear that
the allegations in Article II could not satisfy the elements of
Sec. 1512. That provision requires proof that a defendant knowingly
engaged in intimidation, physical force, threats, misleading conduct,
or corrupt persuasion with intent to influence, delay, or prevent
testimony or cause any person to withhold objects or documents from an
official proceeding. It is clear from the case law that ``misleading
conduct'' as contemplated by Sec. 1512 does not cover scenarios where
an accused urged a witness to give false testimony without resorting to
coercive or deceptive conduct. See, e.g., United States v. Kulczyk,
931 F.2d 542, 547 (9th Cir. 1991) (reversing conviction under Sec. 1512
because ``there is simply no support for the argument that [defendant]
did anything other than ask the witnesses to lie''); United States v.
King, 762 F.2d 232, 237 (2d Cir. 1985) (``Since the only allegation in
the indictment as to the means by which [defendant] induced [a witness]
to withhold testimony was that [the defendant] misled [the witness],
and since the evidence failed totally to support any inference that
[the witness] was, or even could have been, misled, the conduct proven
by the government was not within the terms of Sec. 1512.''). Deceit is
thus the gravamen of an obstruction of justice charge that is
predicated on witness tampering.
---------------------------------------------------------------------------
b. structure of the allegations
Article II exhibited by the House of Representatives alleges 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, cover up, and conceal the existence of
evidence and testimony'' in the Jones case. The Article alleges that
the President did so by engaging in ``one or more of the following
acts'': the President (1) corruptly encouraged Ms. Lewinsky ``to
execute a sworn affidavit . . . that he knew to be perjurious, false
and misleading''; (2) ``corruptly encouraged Ms. Lewinsky to give
perjurious, false, and misleading testimony if and when called to
testify personally'' in the Jones case; (3) ``corruptly engaged in,
encouraged, or supported a scheme to conceal evidence that had been
subpoenaed'' in the Jones case, namely gifts given by him to Ms.
Lewinsky; (4) ``intensified and succeeded in an effort to secure job
assistance'' for Ms. Lewinsky between December 7, 1997 and January 14,
1998, ``in order to corruptly prevent [her] truthful testimony'' in the
Jones case; (5) ``corruptly allowed his attorney to make false and
misleading statements'' to Judge Susan Webber Wright at the Jones
deposition; (6) ``related a false and misleading account of events''
involving Ms. Lewinsky to Betty Currie, a ``potential witness'' in the
Jones case, ``in order to corruptly influence'' her testimony; and (7)
made false and misleading statements to certain members of his staff
who were ``potential'' grand jury witnesses, in order to corruptly
influence their testimony.
As noted above, this article essentially duplicates some of the
perjury allegations of Article I (4): Article II alleges particular
acts of obstruction while Article I (4) alleges that the President lied
in the grand jury when he discussed those allegations.\92\ Both sets of
allegations are unsupported. Our discussion here of the details of
these charges will, as well, serve in part as our response to the
allegations in Article I (4).
---------------------------------------------------------------------------
\92\ Compare Article I (4) (perjury in the grand jury concerning
alleged ``corrupt efforts to influence testimony of witnesses and to
impede the discovery of evidence'') with Article II (1)-(3), (6)
(obstructing justice when he (1) ``encouraged witness . . . to execute
a [false] sworn affidavit''; (2) ``encouraged a witness . . . to give
perjurious, false and misleading testimony''; (3) ``engaged in,
encouraged, or supported a scheme to conceal evidence''; (6)
``corruptly influence[d] the testimony'' of Betty Currie). Compare also
Article I (3) (perjury in the grand jury concerning alleged ``prior
false and misleading statements he allowed his attorney to make to a
Federal judge'') with Article II (5) (obstructing justice by
``allow[ing] his attorney to make false and misleading statements to a
Federal judge).
---------------------------------------------------------------------------
c. response to the particular allegations in article ii
1. The President denies that on or about December 17, 1997, he
``corruptly encouraged'' Monica Lewinsky ``to execute a sworn
affidavit in that proceeding that he knew to be perjurious,
false and misleading''
Article II (1) alleges that the President ``corruptly encouraged''
Monica Lewinsky ``to execute a sworn affidavit in that proceeding that
he knew to be perjurious, false and misleading.'' The House Managers
allege that during a December 17 phone conversation, Ms. Lewinsky asked
the President what she could do if she were subpoenaed in the Jones
case and that the President responded, ``Well, maybe you can sign an
affidavit.'' House Br. at 22. This admitted statement by the President
of totally lawful conduct is the Managers' entire factual basis for the
allegation in Article II (1).
The Managers do not allege that the President ever suggested to Ms.
Lewinsky she should file a false affidavit or otherwise told her what
to say in the affidavit. Indeed they could not, because Ms. Lewinsky
has repeatedly and forcefully denied any such suggestions:
``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L[ewinsky] to lie.'' App. at 718
(2/1/98 Proffer).
``[N]o one ever asked me to lie and I was never promised a
job for my silence.'' App. at 1161 (Lewinsky GJ 8/20/98).
``Neither the President nor Jordan ever told Lewinsky that
she had to lie.'' App. at 1398 (Lewinsky FBI 302 7/27/98).
``Neither the President nor anyone ever directed Lewinsky
to say anything or to lie. . . .'' App. at 1400 (Lewinsky FBI 302 7/27/
98).
``I think I told [Linda Tripp] that--you know at various
times the President and Mr. Jordan had told me I have to lie. That
wasn't true.'' App. at 942 (Lewinsky GJ 8/6/98).
In an attempt to compensate for the total lack of evidence
supporting their theory,\93\ the Managers offer their view that ``both
parties knew the affidavit would have to be false and misleading in
order to accomplish the desired result.'' House Br. at 22; see also
Committee Report at 65 (the President ``knew [the affidavit] would have
to be false for Ms. Lewinsky to avoid testifying''). But there is no
evidence to support such bald conjecture, and in fact the opposite is
true. Both Ms. Lewinsky and the President testified that, given the
particular claims in the Jones case, they thought a truthful, limited
affidavit might establish that Ms. Lewinsky had nothing relevant to
offer. The President explained to the grand jury why he believed that
Ms. Lewinsky would execute a truthful but limited affidavit that would
have established that she was not relevant to the Jones case:\94\
---------------------------------------------------------------------------
\93\ The myth that the President told Ms. Lewinsky to lie in her
affidavit springs not from the evidence but from the surreptitiously
recorded Tripp tapes. But as Ms. Lewinsky explained to the grand jury,
many of the statements she made to Ms. Tripp--including on this
subject--were not true: ``I think I told [Linda Tripp] that--you know
at various times the President and Mr. Jordan had told me I have to
lie. That wasn't true.'' App. at 942 (Lewinsky GJ 8/6/98).
\94\ Indeed, the Committee Report alleges without support that the
President lied to the grand jury when he indicated his belief that Ms.
Lewinsky could indeed have filed a truthful but limited affidavit that
might have gotten her out of testifying in the Jones case. Article I
(4). This claim fails for the reasons discussed in the text.
---------------------------------------------------------------------------
``But I'm just telling you that it's certainly true what
she says here, that we didn't have--there was no employment, no benefit
in exchange, there was nothing having to do with sexual harassment. And
if she defined sexual relationship in the way I think most Americans
do, meaning intercourse, then she told the truth.'' App. at 474.
``You know, I believed then, I believe now, that Monica
Lewinsky could have sworn out an honest affidavit, that under
reasonable circumstances, and without the benefit of what Linda Tripp
did to her, would have given her a chance not to be a witness in this
case.'' App. at 521.
``I believed then, I believe today, that she could execute
an affidavit which, under reasonable circumstances with fair-minded,
nonpolitically-oriented people, would result in her being relieved of
the burden to be put through the kind of testimony that, thanks to
Linda Tripp's work with you and with the Jones lawyers, she would have
been put through. I don't think that's dishonest. I don't think that's
illegal.'' App. at 529.
``But I also will tell you that I felt quite comfortable
that she could have executed a truthful affidavit, which would not have
disclosed the embarrassing details of the relationship that we had had,
which had been over for many, many months by the time this incident
occurred.'' App. at 568-69.
``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.'' App. at 571.
The Jones case involved allegations of a nonconsensual sexual
solicitation. Ms. Lewinsky's relationship with the President was
consensual, and she knew nothing about the factual allegations of the
Jones case.
Ms. Lewinsky similarly recognized that an affidavit need not be
false in order to accomplish the purpose of avoiding a deposition:
LEWINSKY told TRIPP that the purpose of the affidavit was
to avoid being deposed. LEWINSKY advised that one does this by giving a
portion of the whole story, so the attorneys do not think you have
anything of relevance to their case. App. at 1420 (Lewinsky FBI 302 7/
29/98) (emphasis added).
LEWINSKY advised the goal of an affidavit is to be as
benign as possible, so as to avoid being deposed. App. at 1421
(Lewinsky FBI 302 7/29/98) (emphasis added).
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 a relationship. App. at 842 (Lewinsky GJ 8/
6/98) (emphasis added).
The Committee Report argued that Ms. Lewinsky must have known that
the President wanted her to lie because he never told her to fully
detail their relationship in her affidavit and because an affidavit
fully detailing the ``true nature'' of their relationship would have
been damaging to him in the Jones case. Committee Report at 65. The
Managers wisely appear to have abandoned this argument.\95\ Ms.
Lewinsky plainly was under no obligation to volunteer to the Jones
lawyers every last detail about her relationship with the President--
and the failure of the President to instruct her to do so is neither
wrong nor an obstruction of justice. A limited, truthful affidavit
might have established that Ms. Lewinsky was not relevant to the Jones
case. The suggestion that perhaps Ms. Lewinsky could submit an
affidavit in lieu of a deposition, as the President knew other
potential deponents in the Jones case had attempted to do, in order to
avoid the expense, burden, and humiliation of testifying in the Jones
case was entirely proper. The notion that the President of the United
States could face removal from office not because he told Monica
Lewinsky to lie, or encouraged her to do so, but because he did not
affirmatively instruct her to disclose every detail of their
relationship to the Jones lawyers is simply not supportable.
---------------------------------------------------------------------------
\95\ The Committee Report argued that Ms. Lewinsky ``contextually
understood that the President wanted her to lie'' because he never told
her to file an affidavit fully detailing the ``true nature'' of their
relationship. Committee Report at 65. The only support cited for this
``contextual understanding'' obstruction theory advanced by the
Committee Report was a reference back to the OIC Referral. The OIC
Referral, in turn, advanced the same theory, citing only the testimony
of Ms. Lewinsky that, while the President never encouraged her to lie,
he remained silent about what she should do or say, and by such
silence, ``I knew what that meant.'' App. at 954 (Lewinsky GJ 8/6/98)
(cited in Referral at 174). It is extraordinary that the President of
the United States could face removal from office not because he told
Ms. Lewinsky to lie, or said anything of the sort, but instead because
he stayed silent--and Ms. Lewinsky thought she ``knew what that
meant.''
---------------------------------------------------------------------------
Moreover, there is significant evidence in the record that, at the
time she executed the affidavit, Ms. Lewinsky honestly believed that
her denial of a sexual relationship was accurate given what she
believed to be the definition of a ``sexual relationship'':
``I never even came close to sleeping with [the President]
. . . We didn't have sex . . . Having sex is having intercourse. That's
how most people would--'' Supp. at 2664 (Lewinsky-Tripp tape 10/3/
97).\96\
---------------------------------------------------------------------------
\96\ A friend of Ms. Lewinsky's also testified that, based on her
close relationship with her, she believed that Ms. Lewinsky did not lie
in her affidavit based on her understanding that when Ms. Lewinsky
referred to ``sex'' she meant intercourse. Supp. at 4597 (6/23/98 grand
jury testimony of Ms. Dale Young). See also Supp. at 1066 (grand jury
testimony of Ms. Neysa Erbland stating that Ms. Lewinsky had said that
the President and she ``didn't have sex'').
---------------------------------------------------------------------------
``Ms. L[ewinsky] was comfortable signing the affidavit
with regard to the sexual relationship because she could justify to
herself that she and the Pres[ident] did not have sexual intercourse.''
App. at 718 (2/1/98 Proffer).
``Lewinsky said that her use of the term `having sex'
means having intercourse. . . .'' App. at 1558 (Lewinsky FBI 302 8/19/
98).
The allegation contained in Article II(1) is totally unsupported by
evidence. It is the product of a baseless hypothesis, and it should be
rejected.
2. The President denies that on or about December 17, 1997, he
``corruptly encouraged'' Monica Lewinsky ``to give perjurious,
false and misleading testimony if and when called to testify
personally'' in the Jones litigation
Article II (2) alleges that the President encouraged Ms. Lewinsky
to give false testimony if and when she was called to testify
personally in the Jones litigation. Again, Ms. Lewinsky repeatedly
denied that anyone told her or encouraged her to lie:
``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L[ewinsky] to lie.'' App. at 718
(2/1/98 Proffer).
``[N]o one ever asked me to lie and I was never promised a
job for my silence.'' App. at 1161 (Lewinsky GJ 8/20/98).
``Neither the President nor Jordan ever told Lewinsky that
she had to lie.'' App. at 1398 (Lewinsky FBI 302 7/27/98).
``Neither the President nor anyone ever directed Lewinsky
to say anything or to lie. . . . App. at 1400 (Lewinsky FBI 302 7/27/
98).
``I think I told [Linda Tripp] that--you know at various
times the President and Mr. Jordan had told me I have to lie. That
wasn't true.'' App. at 942 (Lewinsky GJ 8/6/98) (emphasis added).
The Managers allege that the President called Ms. Lewinsky on
December 17 to inform her that she had been listed as a potential
witness in the Jones case, and that during this conversation, he ``sort
of said, `You know, you can always say you were coming to see Betty or
that you were bringing me letters.' '' House Br. at 22; App. at 843
(Lewinsky GJ 8/6/98). Other than the fact that Ms. Lewinsky recalls
this statement being made in the same conversation in which she learned
that her name was on the Jones witness list, the Managers cite no
evidence whatsoever that supports their claim that the President
encouraged her to make such statements ``if and when called to testify
personally in the Jones case.'' They claim simply that Ms. Lewinsky had
discussed such explanations for her visits with the President in the
past. Unremarkably, the President and Ms. Lewinsky had been concerned
about concealing their improper relationship from others while it was
ongoing.
Ms. Lewinsky's own testimony and proffered statements undercut
their case:
When asked what should be said if anyone questioned Ms.
Lewinsky about her being with the President, he said she should say she
was bringing him letters (when she worked in Legislative Affairs) or
visiting Betty Currie (after she left the WH). There is truth to both
of these statements. . . . [This] occurred prior to the subpoena in the
Paula Jones case. App. at 709 and 718 (2/1/98 Proffer) (emphasis
added).
After Ms. Lewinsky was informed, by the Pres[ident], that
she was identified as a possible witness in the Jones case, the
Pres[ident] and Ms. L[ewinsky] discussed what she should do. The
President told her he was not sure she would be subpoenaed, but in the
event that she was, she should contact Ms. Currie. When asked what to
do if she was subpoenaed, the Pres[ident] suggested she could sign an
affidavit to try to satisfy their inquiry and not be deposed. In
general, Ms. L[ewinsky] should say she visited the WH to see Ms. Currie
and, on occasion when working at the WH, she brought him letters when
no one else was around. Neither of those statements untrue. App. at 712
(2/1/98 Proffer) (emphasis added).
To the best of Ms. L[ewinsky]'s memory, she does not
believe they discussed the content of any deposition that Ms.
L[ewinsky] might be involved in at a later date. App. at 712 (2/1/98
Proffer) (emphasis added).
LEWINSKY advised, though they did not discuss the issue in
specific relation to the JONES matter, she and CLINTON had discussed
what to say when asked about LEWINSKY's visits to the White House. App.
at 1466 (Lewinsky FBI 302 7/31/98) (emphasis added).
Ms. Lewinsky's statements indicate that she asked the President
what to say if ``anyone'' asked about her visits, that the President
said ``in general'' she could give such an explanation, and that they
``did not discuss the issue in specific relation to the Jones matter.''
This is consistent with the President's testimony that he and Ms.
Lewinsky ``might have talked about what to do in a non-legal context at
some point in the past,'' although he had no specific memory of that
conversation. App. at 569. The President also stated in his grand jury
testimony that he did not recall saying anything like that in
connection with Ms. Lewinsky's testimony in the Jones case:
Q: And in that conversation, or in any conversation in which you
informed her she was on the witness list, did you tell her, you know,
you can always say that you were coming to see Betty or bringing me
letters? Did you tell her anything like that?
A: I don't remember. She was coming to see Betty. I can tell you
this. I absolutely never asked her to lie.
App. at 568. Ms. Lewinsky does not testify that this discussion was had
in reference to testimony she may or may not have been called to give
personally, and the Managers' implication is directly contradicted by
Ms. Lewinsky's statement that she and the President did not discuss her
deposition testimony in that conversation. See App. at 712 (2/1/98
Proffer) (``To the best of Ms. L[ewinsky's] memory, she does not
believe they discussed [in the December 17 conversation] the content of
any deposition that Ms. L[ewinsky] might be involved in at a later
date.'').
In support of this allegation, the Managers also cite Ms.
Lewinsky's testimony that she told the President she would deny the
relationship and that the President made some encouraging comment.
House Br. at 23. Ms. Lewinsky never stated that she told the President
any such thing on December 17, or at any other time after she had been
identified as a witness. Indeed, Ms. Lewinsky testified that that
discussion did not take place after she learned she was a witness in
the Jones case:
Q: 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.
App. at 1119-20 (Lewinsky GJ 8/20/98) (emphasis added).
Moreover, Ms. Lewinsky has stated several times that neither of
these so-called ``cover stories'' was untrue. In her handwritten
proffer, Ms. Lewinsky stated that she asked the President what to say
if anyone asked her about her visits to the Oval Office and he said
that she could say ``she was bringing him letters (when she worked in
Legislative Affairs) or visiting Betty Currie (after she left the White
House).'' App. at 709 (Lewinsky 2/1/98 Proffer). Ms. Lewinsky expressly
stated: ``There is truth to both of these statements.'' Id. (emphasis
added); see also App. at 712 (2/1/98 Proffer) (``[n]either of those
statements [was] untrue.'') (emphasis added). Indeed, Ms. Lewinsky
testified to the grand jury that she did in fact bring papers to the
President and that on some occasions, she visited the Oval Office only
to see Ms. Currie:
Q: Did you actually bring [the President] papers at all?
A: Yes.
Q: All right. Tell us a little about that.
A: It varied. Sometimes it was just actual copies of letters. . . .
App. at 774-75 (Lewinsky GJ 8/6/98).
``I saw Betty on every time that I was there . . . most of the time my
purpose was to see the President, but there were some times when I did
just go see Betty but the President wasn't in the office.''
App. at 775 (Lewinsky GJ 8/6/98). The Managers assert that those
stories were misleading. House Br. at 23; see also Committee Report at
66 (delivering documents to the President was a ``ruse that had no
legitimate business purpose.''). In other words, while the so-called
``cover stories'' were literally true, such explanations might have
been misleading. But literal truth is a critical issue in perjury and
obstruction cases, as is Ms. Lewinsky's belief that the statements
were, in fact, literally true.
The allegation contained in Article II (2) is unsupported by the
evidence and should be rejected.
3. The President denies that he ``corruptly engaged in, encouraged, or
supported a scheme to conceal evidence''--gifts he had given to
Monica Lewinsky--in the Jones case
This allegation charges that the President participated in a scheme
to conceal certain gifts he had given to Monica Lewinsky. It apparently
centers on two events allegedly occurring in December 1997: (a) a
conversation between the President and Ms. Lewinsky in which the two
allegedly discussed the gifts the President had given Ms. Lewinsky, and
(b) Ms. Currie's receipt of a box of gifts from Ms. Lewinsky and
storage of them under her bed. The evidence does not support the
charge.
a. Ms. Lewinsky's December 28 Meeting with the President
Monica Lewinsky met with the President on December 28, 1997,
sometime shortly after 8:00 a.m. to pick up Christmas presents. App. at
868 (Lewinsky GJ 8/6/98). According to Ms. Lewinsky, she raised the
subject of gifts she had received from the President in relation to the
Jones subpoena, and this was the first and only time that this subject
arose. App. at 1130 (Lewinsky GJ 8/20/98); App. at 1338 (Lewinsky Depo.
8/26/98).
The House Trial Brief and the Committee Report quote one version of
Ms. Lewinsky's description of that December 28 conversation:
``[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.'' App.
at 872 (Lewinsky GJ 8/6/98).
In fairness, the Senate should be aware that Ms. Lewinsky has
addressed this crucial exchange with prosecutors on at least ten
different occasions, which we lay out in the margin for review.\97\ The
accounts varied--in some Ms. Lewinsky essentially recalled that the
President gave no response, but the House Managers, like the Committee
Report and the OIC Referral, cite only the account most favorable to
their case, failing even to take note of the other inconsistent
recollections. But the important fact about Ms. Lewinsky's various
descriptions of this conversation is that, at the very most, the
President stated ``I don't know'' or ``Let me think about it'' when Ms.
Lewinsky raised the issue of the gifts. Even by the account most
unfavorable to the President, the record is clear and unambiguous that
the President never initiated any discussion about the gifts nor did he
tell or even suggest to Ms. Lewinsky that she should conceal the gifts.
---------------------------------------------------------------------------
\97\ Those statements, from earliest to latest in time:
1. Proffer (2/1/98): ``Ms. L then asked if she should put away
(outside her home) the gifts he had given her or, maybe, give them so
someone else.'' App. at 715.
2. FBI 302 (7/27/98): ``LEWINSKY expressed her concern about the
gifts that the President had given LEWINSKY and specifically the hat
pin that had been subpoenaed by PAULA JONES. The President seemed to
know what the JONES subpoena called for in advance and did not seem
surprised about the hat pin. The President asked LEWINSKY if she had
told anyone about the hat pin and LEWINSKY denied that she had, but may
have said that she gave some of the gifts to FRANK CARTER. . . .
LEWINSKY asked the President if she should give the gifts to someone
and the President replied `I don't know.' '' App. at 1395.
3. FBI 302 (8/1/98): ``LEWINSKY said that she was concerned about
the gifts that the President had given her and suggested to the
President that BETTY CURRIE hold the gifts. The President said
something like, `I don't know,' or `I'll think about it.' The President
did not tell LEWINSKY what to do with the gifts at that time.'' App. at
1481.
4. Grand Jury (8/6/98): ``[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.'' App. at 872.
5. FBI 302 (8/13/97): ``During their December 28, 1997 meeting,
CLINTON did not specifically mention which gifts to get rid of.'' App.
at 1549.
6. Grand Jury (8/20/98): ``It was December 28th and I was there to
get my Christmas gifts from him. . . And we spent maybe about five
minutes or so, not very long, talking about the case. And I said to
him, `Well, do you think' . . . And at one point, I said, `Well do you
think I should--' I don't think I said `get rid of,' I said, `But do
you think I should put away or maybe give to Betty or give someone the
gifts?' 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.''
App. at 1121-22.
7. Grand Jury (8/20/98): ``A JUROR: Now, did you bring up Betty's
name [at the December 28 meeting during which gifts were supposedly
discussed] or did the President bring up Betty's name? THE WITNESS: I
think I brought it up. The President wouldn't have brought up Betty's
name because he really didn't--he really didn't discuss it. . .'' App.
at 1122.
8. Grand Jury (8/20/98): ``A JUROR: You had said that the President
had called you initially to come get your Christmas gift, you had gone
there, you had a talk, et cetera, and there was no--you expressed
concern, the President really didn't say anything.'' App. at 1126.
9. FBI 302 (8/24/98): ``LEWINSKY advised that CLINTON was sitting
in the rocking chair in the Study. LEWINSKY asked CLINTON what she
should do with the gifts CLINTON had given her and he either did not
respond or responded `I don't know.' LEWINSKY is not sure exactly what
was said, but she is certain that whatever CLINTON said, she did not
have a clear image in her mind of what to do next.'' App. at 1566.
10. FBI 302 (9/3/98): ``On December 28, 1997, in a conversation
between LEWINSKY and the President, the hat pin given to Lewinsky by
the President was specifically discussed. They also discussed the
general subject of the gifts the President had given Lewinsky. However,
they did not discuss other specific gifts called for by the PAULA JONES
subpoena. LEWINSKY got the impression that the President knew what was
on the subpoena.'' App. at 1590.
---------------------------------------------------------------------------
Indeed, on several occasions, Ms. Lewinsky's accounts of the
President's reaction depict the President as not even acknowledging her
suggestion. Among those versions, ignored by the Committee Report and
the Managers, are the following:
``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.'' App. at 1122 (Lewinsky GJ 8/20/98) (emphasis added).
``[The President] either did not respond or responded `I
don't know.' LEWINSKY is not sure exactly what was said, but she is
certain that whatever CLINTON said, she did not have a clear image in
her mind of what to do next.'' App. at 1566 (Lewinsky FBI 302 8/24/98)
(emphasis added).
``The President wouldn't have brought up Betty's name,
because he really didn't--he really didn't discuss it . . .'' App. at
1122 (Lewinsky GJ 8/20/98) (emphasis added).
``A JUROR: You had said that the President had called you
initially to come get your Christmas gift, you had gone there, you had
a talk, et cetera, and there was no--you expressed concern, the
President didn't really say anything.'' App. at 1126 (Lewinsky GJ 8/20/
98) (emphasis added).\98\
---------------------------------------------------------------------------
\98\ Here a grand juror is restating Ms. Lewinsky's earlier
testimony, with which Ms. Lewinsky appeared to agree (she did not
dispute the accuracy of the grand juror's recapitulation).
---------------------------------------------------------------------------
Thus, the evidence establishes that there was essentially no
discussion of gifts. That December 28 meeting provides no evidence of
any ``scheme . . . designed to . . . conceal the existence'' of any
gifts.
b. Ms. Currie's Supposed Involvement in Concealing Gifts
Because the record is devoid of any evidence of obstruction by the
President at his December 28 meeting with Monica Lewinsky, Article II
(3) necessarily depends on the added assumption that, after the
December 28 meeting, the President must have instructed his secretary,
Ms. Betty Currie, to retrieve the gifts from Ms. Lewinsky, thereby
consummating the obstruction of justice. As the following discussion
will demonstrate, the record is devoid of any direct evidence that the
President discussed this subject with Ms. Currie. At most, it
conflicted on the question of whether Ms. Currie or Ms. Lewinsky
initiated the gift retrieval.
We begin with what is certain. The record is undisputed that Ms.
Currie picked up a box containing gifts from Ms. Lewinsky and placed
them under her bed at home. The primary factual dispute, therefore, is
which of the two initiated the pick-up. According to the logic of the
Committee Report, if Ms. Currie initiated the retrieval, she must have
been so instructed by the President. Committee Report at 69 (``there is
no reason for her to do so unless instructed by the President'').
But the facts are otherwise. Both Ms. Currie and the President have
denied ever having any such conversation wherein the President
instructed Ms. Currie to retrieve the gifts from Ms. Lewinsky. App. at
502 (President Clinton GJ 8/17/98); Supp. at 581 (Currie GJ 5/6/98). In
other words, the only two parties who could have direct knowledge of
such an instruction by the President have denied it took place.
In the face of this direct evidence that the President did not ask
Ms. Currie to pick up these gifts, the Committee Report's obstruction
theory hinges on the inference that Ms. Currie called Ms. Lewinsky and
must have done so at the direction of the President. To be sure, Ms.
Lewinsky has stated on several occasions that Ms. Currie initiated a
call to her to inquire about retrieving something. 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.
App. at 874 (Lewinsky GJ 8/6/98). See also App. at 715 (2/1/98 Proffer)
(``Ms. Currie called Ms. L later that afternoon and said that the Pres.
had told her Ms. L wanted her to hold onto something for her.'').
However, Ms. Lewinsky acknowledged that it was she who first raised
the prospect of Ms. Currie's involvement in holding the gifts:
A JUROR: Now, did you bring up Betty's name or did the President
bring up Betty's name?
[MS. LEWINSKY]: I think I brought it up. The President wouldn't
have brought up Betty's name because he really didn't--he really didn't
discuss it.
App. at 1122 (Lewinsky GJ 8/20/98). And contrary to the Committee
Report's suggestion that Lewinsky's memory of these events has been
``consistent and unequivocal'' and she has ``recited the same facts in
February, July, and August,'' Committee Report at 69, Ms. Lewinsky
herself acknowledged at her last grand jury appearance that her memory
of the crucial conversation is less than crystal clear:
A JUROR: . . . Do you remember Betty Currie saying that the
President had told her to call?
[MS. LEWINSKY]: Right now. I don't. I don't remember. . . .
App. at 1141 (Lewinsky GJ 8/20/98).
Moreover, Ms. Currie has repeatedly and unvaryingly stated that it
was Ms. Lewinsky who contacted Ms. Currie about the gifts, not the
other way around. A few examples include:
``LEWINSKY called CURRIE and advised she had to return all
gifts CLINTON had given LEWINSKY as there was talk going around about
the gifts.'' Supp. at 531 (Currie FBI 302 1/24/98);
``Monica said she was getting concerned, and she wanted to
give me the stuff the President had given her--or give me a box of
stuff. It was a box of stuff.'' Supp. at 557 (Currie GJ 1/27/98);
Q: . . . Just tell us for a moment how this issue first
arose and what you did about it and what Ms. Lewinsky told you.
A: The best I remember it first arose with a conversation.
I don't know if it was over the telephone or in person. I don't know.
She asked me if I would pick up a box. She said Isikoff had been
inquiring about gifts.'' Supp. at 582 (Currie GJ 5/6/98);
``The best I remember she said that she wanted me to hold
these gifts--hold this--she may have said gifts, I'm sure she said
gifts, box of gifts--I don't remember--because people were asking
questions. And I said, `Fine.' '' Supp. at 581 (Currie GJ 5/6/98);
``The best I remember is Monica calls me and asks me if
she can give me some gifts, if I'd pick up some gifts for her.'' Supp.
at 706 (Currie GJ 7/22/98).
The Committee Report attempts to portray Ms. Currie's memory as
faulty on the key issue of whether Ms. Lewinsky initiated the gift
retrieval by unfairly referencing Ms. Currie's answer to a completely
different question. Ms. Currie was asked whether she had discussed with
the President Ms. Lewinsky's ``turning over to [her]'' the gift he had
given her. Ms. Currie indicated that she could remember no such
occasion. ``If Monica said [Ms. Currie] talked to the President about
it,'' she was then asked, ``would that not be true?'' Then, only on the
limited question of whether Ms. Currie ever talked to the President
about the gifts--wholly separate from the issue of who made the initial
contact--did Ms. Currie courteously defer, ``Then she may remember
better than I. I don't remember.'' Supp. at 584 (Currie GJ 5/6/98).
Ironically, it is the substance of this very allegation--regarding
conversations between Ms. Currie and the President--that Ms. Lewinsky
told the grand jury she could not recall. (In later testimony,
referring to a conversation she had with the President on January 21,
Ms. Currie testified that she was ``sure'' that she did not discuss the
fact that she had a box of Ms. Lewinsky's belongings under her bed.
Supp. at 705 (Currie GJ 7/22/98).)
To support its theory that Ms. Currie initiated a call to Ms.
Lewinsky, the House Managers place great reliance on a cell phone
record of Ms. Currie, calling it ``key evidence that Ms. Currie's fuzzy
recollection is wrong'' and which ``conclusively proves'' that ``the
President directed Ms. Currie to pick up the gifts.'' House Br. at 33.
There is record of a one-minute call on December 28, 1998 from Ms.
Currie's cell phone to Ms. Lewinsky's home at 3:32 p.m. Even assuming
Ms. Lewinsky is correct that Ms. Currie picked up the gifts on December
28, her own testimony refutes the possibility that the Managers'
mysterious 3:32 p.m. telephone call could have been the initial contact
by Ms. Currie to retrieve the gifts. To the contrary, the timing and
duration of the call strongly suggest just the opposite. It is
undisputed that Ms. Lewinsky entered the White House on the morning of
December 28 at 8:16 a.m. App. at 111 (White House entry records). While
no exit time for Ms. Lewinsky was recorded because she inadvertently
left her visitor badge in the White House, she has testified that the
visit lasted around an hour. App. at 870-72 (Lewinsky GJ 8/6/98).
Consistent with this timing, records also indicate that the President
left the Oval Office at 9:52 a.m., thus placing Ms. Lewinsky's exit
around 9:30 to 9:45 a.m. App. at 111. Ms. Lewinsky has indicated on
several occasions that her discussion with Betty Currie occurred just
``several hours'' after she left. App. at 875 (Lewinsky GJ 8/6/98);
App. at 1395 (Lewinsky FBI 302 7/27/98). Ms. Lewinsky three times
placed the timing of the actual gift exchange with Ms. Currie ``at
about 2:00 p.m.'' App at 1127 (Lewinsky GJ 8/20/98); App. at 1396
(Lewinsky FBI 302 7/27/98); App. at 1482 (Lewinsky FBI 302 8/1/98).
This, in light of undisputed documentary evidence and Ms. Lewinsky's
own testimony, it becomes clear that the 3:32 p.m. telephone record
relied upon by the Committee Report in fact is unlikely to reflect a
call placed to initiate the pick-up.
Apart from this conspicuous timing defect, there is another,
independent reason to conclude that the 3:32 p.m. telephone call could
not have been the conversation Ms. Lewinsky describes. The 3:32 p.m.
call is documented to have lasted no longer than one minute, and
because such calls are rounded up to the nearest minute, it quite
conceivably could have been much shorter in duration. It is difficult
to imagine that the conversation reflected in Ms. Lewinsky's statements
could have taken place in less than one minute. Both Ms. Currie and Ms.
Lewinsky have described the various matters that were discussed in
their initial conversation: not only was this the first time the topic
of returning gifts was discussed, which quite likely generated some
discussion between the two, but they also had to discuss and arrange a
convenient plan for Ms. Currie to make the pick-up.\99\
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\99\ The OIC Referral, which took great pains to point out every
allegedly incriminating piece of evidence, made no reference to this
telephone record, perhaps because the OIC knew it tended not to
corroborate Ms. Lewinsky's time line. In its place, the Referral rested
its corroboration hopes in the following bizarre analysis: ``More
generally, the person making the extra effort (in this case, Ms.
Currie) is ordinarily the person requesting the favor.'' Referral at
170. Wisely, the House Managers chose not to pursue this groundless
speculation.
---------------------------------------------------------------------------
What, then, to make of this call so heavily relied upon by the
House Managers? The record is replete with references that Ms. Currie
and Ms. Lewinsky communicated very frequently, especially during this
December 1997-January 1998 time period. See, e.g., Supp. at 554 (Currie
GJ 1/27/98) (many calls around Christmas-time). They often called or
paged each other to discuss a host of topics, including Ms. Lewinsky's
pending job search, Ms. Currie's mother's illness, and her contacts
with Mr. Jordan. There is simply no reason to believe this call was
anything other than one of the many calls and exchanges of pages that
these two shared during the period.
c. The Obstruction-by-Gift-Concealment Charge Is at Odds
With the President's Actions
Ultimately, and irrespective of the absence of evidence implicating
the President in Ms. Lewinsky's gift concealment, the charge fails
because it is inconsistent with other events of the very same day.
There is absolutely no dispute that the President gave Ms. Lewinsky
numerous additional gifts during their December 28 meeting. It must
therefore be assumed that on the very day the President and Ms.
Lewinsky were conspiring to hide the gifts he had already given to her,
the President added to the pile. No stretch of logic will support such
an outlandish theory.
From the beginning, this inherent contradiction has puzzled
investigators. If there were a plot to conceal these gifts, why did the
President give Ms. Lewinsky several more gifts at the very moment the
concealment plan was allegedly hatched? The House Managers OIC
prosecutors, grand jurors, and even Ms. Lewinsky hopelessly searched
for an answer to that essential question:
Q: Although, Ms. Lewinsky, I think what is sort of--it seems a
little odd and, I guess really the grand jurors wanted your impression
of it, was on the same day that you're discussing basically getting the
gifts to Betty to conceal them, he's giving you a new set of gifts.
A: You know, I have come recently to look at that as sort of a
strange situation, I think, in the course of the past few weeks. . . .
App. at 887-88 (Lewinsky GJ 8/6/98) (emphasis added). See House Br. at
34.
The Committee Report fails to resolve this significant flaw in its
theory.\100\ The report admits that Ms. Lewinsky ``can't answer'' why
the President would in one breath give her gifts and in the next hatch
a plan to take them back. But it cites only to Ms. Lewinsky's
understanding of the relationship's pattern of concealment and how she
contemplated it must apply to the gifts. It creates the erroneous
impression that the President gave Ms. Lewinsky instructions to conceal
the gifts in the December 28 meeting by quoting her testimony that
``from everything he said to me'' she would conceal the gifts. But we
know that Ms. Lewinsky has repeatedly testified that no such discussion
ever occurred. Her reliance on ``everything he said to me'' must,
therefore, reflect her own plan to implement discussions the two had
had about concealing the relationship long before her role in the Jones
litigation.
---------------------------------------------------------------------------
\100\ Incredibly, not only does the Committee Report fail to offer
a sensible answer to this perplexity, but without any factual or
logical support it accuses the President of lying to the grand jury
when he testified that he was not particularly concerned about the
gifts he had given Ms. Lewinsky and thus had no compunction about
giving her additional gifts on December 28. Article I (4). For whatever
reason, neither the Committee Report nor the OIC Referral acknowledges
the most reasonable explanation for these events: as the President has
testified repeatedly, he was not concerned about the gifts he had given
Ms. Lewinsky.
``I was never hung up about this gift issue. Maybe it's
because I have a different experience. But, you know, the President
gets hundreds of gifts a year, maybe more. I have always given a lot of
gifts to people, especially if they give me gifts. And this was no big
deal to me.'' App. at 495.
``this gift business . . . didn't bother me.'' App. at
496.
``I wasn't troubled by this gift issue.'' App. at 497.
``I have always given a lot of people gifts. I have always
been given gifts. I do not think there is anything improper about a man
giving a woman a gift, or a woman giving a man a gift, that necessarily
connotes an improper relationship. So, it didn't bother me.'' App. at
498.
---------------------------------------------------------------------------
What this passage confirms is that Ms. Lewinsky had very much in
her mind that she would do what she could to conceal the relationship--
a modus operandi she herself acknowledged well pre-dated the Jones
litigation. That she took such steps does not mean that the President
knew of or participated in them. Indeed, it appears that the entire
gift-concealment plan arose not from any plan suggested by the
President--which the Committee Report so desperately struggles to
maintain--but rather more innocently from the actions of a young woman
taking steps she thought were best.\101\
---------------------------------------------------------------------------
\101\ As the President has stated about this potentiality, ``I
didn't then, I don't now see this [the gifts] as a problem. And if she
thought it was a problem, I think it--it must have been from a, really
a misapprehension of the circumstances. I certainly never encouraged
her not to, to comply lawfully with a subpoena.'' App. at 497-98
(emphasis added.)
---------------------------------------------------------------------------
In any event, the record evidence is abundantly clear that the
President has not obstructed justice by any plan or scheme to conceal
gifts he had given to Ms. Lewinsky, and logic and reason fully undercut
any such theory.
4. The President denies that he obstructed justice in connection with
Monica Lewinsky's efforts to obtain a job in New York in an
effort to ``corruptly prevent'' her ``truthful testimony'' in
the Jones case
Again, in the absence of specifics in Article II itself, we look to
the Committee Report for guidance on the actual charges. The Committee
Report would like to portray this claim in as sinister a light as
possible, and it alleges that the President of the United States
employed his close friend Vernon Jordan to get Monica Lewinsky a job in
New York to influence her testimony or perhaps get her away from the
Jones lawyers. To reach this conclusion, and without the benefit of a
single piece of direct evidence to support the charge, it ignores the
direct testimony of several witnesses, assigns diabolical purposes to a
series of innocuous events, and then claims that ``[i]t is logical to
infer from this chain of events'' that the job efforts ``were motivated
to influence the testimony of'' Ms. Lewinsky. Committee Report at 71.
Again, the evidence contradicts the inferences the Committee Report
strives to draw. Ms. Lewinsky's New York job search began on her own
initiative long before her involvement in the Jones case. By her own
forceful testimony, her job search had no connection to the Jones case.
Mr. Jordan agreed to help Ms. Lewinsky not at the direction of the
President but upon the request of Betty Currie, Mr. Jordan's long-time
friend. And bizarrely, the idea to involve Mr. Jordan (which arose well
before Ms. Lewinsky became a possible Jones witness) came not from the
President but apparently emanated from Ms. Tripp. In short, the facts
directly frustrate the House Majority's theory.\102\
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\102\ This allegation has gone through several iterations. As
initially referred to the House of Representatives, the charge was that
the President ``help[ed] Ms. Lewinsky obtain a job in New York at a
time when she would have been a witness against him'' in the Jones
case. OIC Referral at 181. Faced with the significant evidence that Ms.
Lewinsky's job efforts had originated long before she became involved
in the Jones case and were in fact entirely unrelated to the Jones
case, the Judiciary Committee Majority was forced to recraft this
claim. Instead of implying a complete connection between the job search
and the Jones ligitation, the article now oddly charges that the
President intensified and succeeded in an effort to secure job
assistance'' for Ms. Lewinsky ``at a time when the truthful testimony
of [Ms. Lewinsky] would have been harmful to him,'' Article II (5)
(emphasis added)--thereby admitting that the initial effort was
motivated by appropriate concerns.
---------------------------------------------------------------------------
a. The Complete Absence of Direct Evidence Supporting This
Charge
It is hard to overstate the importance of the fact that--by the
House Managers', the Committee Report's and the OIC's own admission--
there is not one single piece of direct evidence to support this
charge. Not one. Indeed, just the contrary is true. Both Ms. Lewinsky
and Mr. Jordan have repeatedly testified that there was never an
explicit or implicit agreement, suggestion, or implication that Ms.
Lewinsky would be rewarded with a job for her silence or false
testimony. One need look no further than their own testimony:
Lewinsky: ``[N]o one ever asked me to lie and I was never promised
a job for my silence.'' App. at 1161 (Lewinsky GJ 8/20/98);
``There was no agreement with the President, JORDAN, or anyone else
that LEWINSKY had to sign the Jones affidavit before getting a job in
New York. LEWINSKY never demanded a job from Jordan in exchange for a
favorable affidavit. Nether the President nor JORDAN ever told LEWINSKY
that she had to lie.'' App. at 1398 (Lewinsky FBI 302 7/27/98).
Jordan: ``As far as I was concerned, [the job and the affidavit]
were two very separate matters.'' Supp. at 1737 (Jordan GJ 3/5/98).
``Unequivocally, indubitably, no''--in response to the question
whether the job search and the affidavit were in any way connected.
Supp. at 1827 (Jordan GJ 5/5/98).\103\
---------------------------------------------------------------------------
\103\ The only person who suggested any such quid pro quo was Ms.
Tripp, who repeatedly urged Ms. Lewinsky to demand such linkage. App.
at 1493 (Lewinsky FBI 302 8/2/98 (``TRIPP told LEWINSKY not to sign the
affidavit until LEWINSKY had a job.''). To appease Linda Tripp's
repeated demands on this point, Ms. Lewinsky ultimately told Ms. Tripp
that she had told Mr. Jordan she wouldn't sign the affidavit until she
had a job. But as she later emphasized to the grand jury, ``That was
definitely a lie, based on something Linda had made me promise her on
January 9th.'' App. at 1134 (Lewinsky GJ 8/20/98).
This is the direct evidence. The House Managers' circumstantial
``chain of events'' case, House Br. 39-41, cannot overcome the hurdle
the direct evidence presents.
b. Background of Ms. Lewinsky's New York Job Search
By its terms, Article II(4) would have the Senate evaluate Ms.
Lewinsky's job search by considering only the circumstances
``[b]eginning on or about December 7, 1997.'' Article II(4). Although
barely mentioned in the Committee Report's ``explanation'' of Article
II(4), the significant events occurring before December 7, 1997 cannot
simply be ignored because they are inconsistent with the Majority's
theory. Without reciting every detail, the undisputed record
establishes that the following facts occurred long before Ms. Lewinsky
was involved in the Jones case:
First, Ms. Lewinsky had contemplated looking for a job in New York
as early as July 1997. App. at 1414 (Lewinsky FBI 302 7/29/98) (July 3
letter ``first time [Lewinsky] mentioned the possibility of moving to
New York''); App. at 787-788 (On July 4, 1997, Ms. Lewinsky wrote the
President a letter describing her interest in a job ``in New York at
the United Nations''); Committee Report at 10 (``Ms. Lewinsky had been
searching for a highly paid job in New York since the previous July.'')
She conveyed that prospect to a friend on September 2, 1997. App. at
2811 (Lewinsky e-mail).
Second, in early October, at the request of Ms. Currie, then-Deputy
Chief of Staff John Podesta asked U.N. Ambassador Bill Richardson to
consider Ms. Lewinsky for a position at the U.N. Supp. at 3404
(Richardson GJ 4/3/98). Ms. Currie testified that she was acting on her
own in this effort. Supp. at 592 (Currie GJ 5/6/98).
Third, around October 6, Ms. Tripp told Ms. Lewinsky that an
acquaintance in the White House reported that it was unlikely Ms.
Lewinsky would ever be re-employed at the White House. After this
disclosure, Ms. Lewinsky ``was mostly resolved to look for a job in the
private sector in New York.'' App. at 1543-44 (Lewinsky FBI 302) 8/13/
98; see also App. at 1460 (Lewinsky FBI 302 7/31/98) (remarks by the
Linda Tripp acquaintance were the ``straw that broke the camel's
back'').
Fourth, sometime prior to October 9, 1997, Ms. Tripp and Ms.
Lewinsky discussed the prospect of enlisting Mr. Vernon Jordan to
assist Ms. Lewinsky in obtaining a private sector job in New York. App.
at 822-24 (Lewinsky GJ 8/6/98); see also App. at 1079 (Lewinsky GJ 8/
20/98) (``I don't remember . . . if [enlisting Jordan] was my idea or
Linda's idea. And I know that that came up in discussions with her, I
believe, before I discussed it with the President''). On either October
9 or 11, Ms. Lewinsky conveyed to the President this idea of asking Mr.
Jordan for assistance. Id.
Fifth, in mid-October, 1997, Ms. Lewinsky purchased a book on jobs
in New York. App. at 1462 (Lewinsky FBI 302 7/31/98). Ms. Lewinsky
completed and sent to Betty Currie at the White House a packet of jobs-
related materials on October 15 or 16. Supp. at 735 (Lewinsky Tripp
tape of 10/15/97 conversation).
Sixth, on October 31, 1997, Ms. Lewinsky interviewed for a position
with Ambassador Bill Richardson at the United Nations in New York.
Ambassador Richardson was ``impressed'' with Ms. Lewinsky and, on
November 3, offered her a position, which she ultimately rejected.
Supp. at 3411 (Richardson GJ 4/30/98); Supp. at 3731 (Sutphen GJ 5/27/
98). Ms. Currie informed the President that Ms. Lewinsky had received a
job offer at the U.N. Supp. at 592 (Currie GJ 5/6/98). Ambassador
Richardson never spoke to the President or Mr. Jordan about Ms.
Lewinsky, and he testified emphatically and repeatedly that no one
pressured him to hire her. Supp. at 3422-23 (Richardson GJ 4/30/98);
Supp. at 3418 (same); Supp. at 3429 (same).
Seventh, as of late October or November, Ms. Lewinsky had told Mr.
Kenneth Bacon, her boss at the Pentagon, that she wanted to leave the
Pentagon and move to New York. In a series of conversations, she
enlisted his assistance in obtaining a private sector job in New York.
Supp. at 11 (Kenneth Bacon FBI 302 2/26/98). In response, Mr. Bacon
contacted Howard Paster, CEO of the public relations firm Hill &
Knowlton about Ms. Lewinsky. Id.
Eighth, in November, Ms. Lewinsky gave notice to the Pentagon that
she would be leaving her Pentagon job at year's end. Supp. at 116
(Clifford Bernath GJ 5/21/98).
Ninth, Ms. Lewinsky apparently had a preliminary meeting with Mr.
Jordan on November 5, 1997 to discuss her job search. During this
twenty-minute meeting, Ms. Lewinsky and Mr. Jordan discussed a list of
potential employers she had compiled. App. at 1464-65 (Lewinsky FBI 302
7/31/98). In that meeting, Ms. Lewinsky never informed Mr. Jordan of
any time constraints on her need for job assistance. Supp. at 2647
(Lewinsky-Tripp Tape of 11/8/97 conversation). Mr. Jordan had to leave
town the next day. App. at 1465 (Lewinsky FBI 302 Form 7/31/98). Ms.
Lewinsky had a follow-up telephone conversation with Mr. Jordan around
Thanksgiving wherein he advised her that he was ``working on her job
search'' and instructed her to call him again ``around the first week
of December.'' App. at 1465 (Lewinsky FBI 302 7/31/98); see also App.
at 825 (Lewinsky GJ 8/6/98) (``And so Betty arranged for me to speak
with [Jordan] again and I spoke with him when I was in Los Angeles
before--right before Thanksgiving.'') \104\ Inexplicably, the Committee
Report, the presentation by its chief counsel, and the Starr Referral
all choose to ignore this key piece of testimony--that contact resumed
in early December because Ms. Lewinsky and Mr. Jordan agreed (in
November) that it would. See Committee Report at 10 (``Ms. Lewinsky had
no further contacts with Mr. Jordan at that time [early November to mid
December].''); Schippers Dec. 10, 1998 Presentation at 38 (``Vernon
Jordan, who, by the way, had done nothing from early November to mid-
December.''); Referral at 182 (``Ms. Lewinsky had no contact with . . .
Mr. Jordan for another month [after November 5].'').
---------------------------------------------------------------------------
\104\ Mr. Jordan was then out of the country from the day after
Thanksgiving until December 4. Supp. at 1804 (Jordan GJ 5/5/98).
---------------------------------------------------------------------------
In sum, the record is clear that Ms. Lewinsky decided on her own to
seek a job in New York many months before her involvement in the Jones
case. She had asked her Pentagon boss to help, as well as Ms. Currie,
who arranged indirectly for Ms. Lewinsky to interview with Ambassador
Richardson at the United Nations. Mr. Jordan became involved in the job
search at the request of Ms. Currie (apparently at the suggestion of
Ms. Tripp) and, notwithstanding his travels in November, Supp. at 1811
(Jordan GJ 5/5/98), kept in contact with Ms. Lewinsky with plans to
reconvene early in December.
c. The Committee Report's Circumstantial Case
Article II ignores this background and merely alleges that efforts
to aid Ms. Lewinsky's job search ``intensified and succeeded'' in
December 1997. While not adopted in the article, the House Brief, the
Committee Report, and the accompanying final presentation by Majority
Counsel Schippers offer some guidance as to the meaning of the actual
charge. They cite three events--Mr. Jordan's December 11 meeting with
Ms. Lewinsky to discuss job prospects in New York, Ms. Lewinsky's
execution of her Jones affidavit, and her receipt of a job--in an
effort to portray Ms. Lewinsky's job search as sinister. But the full
record easily dispels any suggestion that there were any obstructive or
improper acts.
(1) Monica Lewinsky's December 11 meeting with Vernon Jordan
The House Managers and the Committee Report suggest that Mr. Jordan
took action on Ms. Lewinsky's job search request only after, and
because, Ms. Lewinsky's name appeared on the witness list on December 5
and only after, and because, Judge Wright ordered the President to
answer certain questions about ``other women'' on December 11. See
House Br. at 21. Consider the Committee Report portrayal:
``[T]he effort to obtain a job for Monica Lewinsky in New York
intensified after the President learned, on December 6, 1997, that
Monica Lewinsky was listed on the witness list for the case Jones v.
Clinton.\105\
---------------------------------------------------------------------------
\105\ Committee Report at 70. That portrayal flatly contradicts the
Committee Report's earlier statement that on December 6 ``there was
still no urgency to help Lewinsky.'' Committee Report at 10-11.
---------------------------------------------------------------------------
``On December 7, 1997, President Clinton met with Vernon Jordan at
the White House. Ms. Lewinsky met with Mr. Jordan on December 11 to
discuss specific job contacts in New York. Mr. Jordan then made calls
to certain New York companies on Ms. Lewinsky's behalf. Jordan
telephoned President Clinton to keep him informed of the efforts to get
Ms. Lewinsky a job.'' Committee Report at 70.
``Something happened that changed the priority assigned to the job
search. On the morning of December 11, 1997, Judge Susan Webber Wright
ordered President Clinton to provide information regarding any state or
federal employee with whom he had, proposed, or sought sexual
relations. To keep Ms. Lewinsky satisfied was now of critical
importance.'' Committee Report at 11.
The unmistakable intention of this narrative is to suggest that,
after the President learned Ms. Lewinsky's name was on the witness list
on December 6, he (1) contacted Mr. Jordan on December 7 to engage his
assistance for Ms. Lewinsky, and only then did Mr. Jordan agree to meet
with Ms. Lewinsky, and further, that (2) Mr. Jordan met with Ms.
Lewinsky on December 11 and took concrete steps to help Ms. Lewinsky
only after and as a result of Judge Wright's December 11 order. Both
suggestions are demonstrably false.
The President had nothing to do with arranging the December 11
meeting between Mr. Jordan and Ms. Lewinsky. As the record indicates,
after receiving a request from Ms. Currie on December 5 that he meet
with Ms. Lewinsky, and telling Ms. Currie to have Ms. Lewinsky call
him, Ms. Lewinsky called Mr. Jordan on December 8. Supp. at 1705
(Jordan GJ 3/3/98). As noted above, that call had been presaged by a
conversation between Mr. Jordan and Ms. Lewinsky around Thanksgiving in
which Jordan told her ``he was working on her job search'' and asked
her to contact him again ``around the first week of December.'' App. at
1465 (Lewinsky FBI 302 7/31/98). In the December 8 call, the two
arranged for Ms. Lewinsky to come to Mr. Jordan's office on December
11; on the same day, Ms. Lewinsky sent Mr. Jordan via courier a copy of
her resume. Supp. at 1705 (Jordan GJ 3/3/98). At the time of that
contact, Mr. Jordan did not even know that Ms. Lewinsky knew President
Clinton. Id.
In the intervening period before Ms. Lewinsky's December 11 meeting
with Mr. Jordan, the President met with Mr. Jordan on December 7. As
the Committee Report acknowledges, that meeting had nothing to do with
Ms. Lewinsky. Committee Report at 11. Yet the House Managers' Brief,
like the Committee Report before it, states that ``the sudden interest
[in helping Ms. Lewinsky obtain a job] was inspired by a court order
entered on December 11, 1997'' in the Jones case.\106\ House Br. at 21.
No evidence supports that supposition. The December 11 meeting had been
scheduled on December 8. Neither the OIC Referral nor the Committee
Report nor the Managers' Brief cites any evidence that the President or
Mr. Jordan had any knowledge of the contents of that Order at the time
of the December 11 meeting.
---------------------------------------------------------------------------
\106\ That Order authorized Paula Jones' attorneys to obtain
discovery relating to certain government employees ``with whom the
President had sexual relations, proposed sexual relations, or sought to
have sexual relations.'' House Br. at 21.
---------------------------------------------------------------------------
Mr. Jordan met with Ms. Lewinsky shortly after 1:00 p.m. on
December 11. Supp. at 1863 (Akin Gump visitor log); Supp. at 1809
(Jordan GJ 5/5/98). In anticipation of that meeting, Mr. Jordan had
made several calls to prospective employers about Ms. Lewinsky. Supp.
at 1807-09 (Jordan GJ 5/5/98). Mr. Jordan spoke about Ms. Lewinsky with
Mr. Peter Georgescu of Young & Rubicam at 9:45 a.m. that morning, and
with Mr. Richard Halperin of Revlon around 1:00 p.m., immediately
before meeting with Ms. Lewinsky. Supp. at 1807-09 (Jordan GJ 5/5/98).
Again, there is no evidence that any of this occurred after Mr. Jordan
learned of Judge Wright's order.
Although the Committee Report claims that a heightened sense of
urgency attached in December which ``intensified'' the job search
efforts, it ignores the sworn testimony of Mr. Jordan denying any such
intensification: ``Oh, no. I do not recall any heightened sense of
urgency [in December]. What I do recall is that I dealt with it when I
had time to do it.'' Supp. at 1811 (Jordan GJ 5/5/98).\107\
---------------------------------------------------------------------------
\107\ Mr. Jordan explained that not much activity occurred in
November because ``I was traveling.'' Supp. at 1811 (Jordan GJ 9/5/98).
---------------------------------------------------------------------------
The ``heightened urgency'' theory also is undermined by the simple
fact that Mr. Jordan indisputably placed no pressure on any company to
give Ms. Lewinsky a job and suggested no date by which Ms. Lewinsky had
to be hired. The first person Mr. Jordan contacted, Mr. Georgescu of
Young & Rubicam/Burson-Marsteller, told investigators that Mr. Jordan
did not engage in a ``sales pitch'' for Lewinsky. Supp. at 1222
(Georgescu FBI 302 3/25/98). Mr. Georgescu told Mr. Jordan that the
company ``would take a look at [Ms. Lewinsky] in the usual way,'' Supp.
at 1219 (Georgescu FBI 302 1/29/98), and that once the initial
interview was set up, Ms. Lewinsky would be ``on [her] own from that
point.'' Supp. at 1222 (Georgescu FBI 302 3/25/98). The executive who
interviewed Ms. Lewinsky at Burson-Marsteller stated that Ms.
Lewinsky's recruitment process went ``by the book'' and, ``while
somewhat accelerated,'' the process ``went through the normal steps.''
Supp. at 111 (Berk FBI 302 3/31/98).
At American Express, Mr. Jordan contacted Ms. Ursula Fairbairn, who
stated that Mr. Jordan exerted ``no . . . pressure'' to hire Lewinsky.
Supp. at 1087 (Fairbairn FBI 302 2/4/98). Indeed, she considered it
``not unusual for board members'' like Mr. Jordan to recommend talented
people for employment and noted that Mr. Jordan had recently
recommended another person just a few months earlier. Id. The person
who interviewed Ms. Lewinsky stated that he felt ``absolutely no
pressure'' to hire her and indeed told her she did not have the
qualifications necessary for the position. Supp. at 3521 (Schick FBI
302 1/29/98).
Perhaps most telling of the absence of pressure applied by Mr.
Jordan is the fact that neither Young & Rubicam/Burson-Marsteller or
American Express offered Ms. Lewinsky a job.
Similarly, at MacAndrews & Forbes/Revlon, where Ms. Lewinsky
ultimately was offered a job (see below), Mr. Jordan initially
contacted Mr. Halperin, who has stated that it was not unusual for Mr.
Jordan to make an employment recommendation. Supp. at 1281 (Halperin
FBI 302 1/26/98). Moreover, he emphasized that Mr. Jordan did not ``ask
[him] to work on any particular timetable,'' Supp. at 1294 (Halperin GJ
4/23/98), and that ``there was no implied time constraint or
requirement for fast action.'' Supp. at 1286 (Halperin FBI 3/27/98.)
(2) The January job interviews and the Revlon employment
offer
The Committee Report attempts to conflate separate and unrelated
acts--the signing of the affidavit and the Revlon job offer--to sustain
its otherwise unsustainable obstruction theory. The Committee Report's
description of these events is deftly misleading:
``The next day, January 7, Monica Lewinsky signed the false
affidavit. She showed the executed copy to Mr. Jordan that same day.
She did this so that Mr. Jordan could report to President Clinton that
it had been signed and another mission had been accomplished.
On January 8, Ms. Lewinsky had an interview arranged by Mr. Jordan
with MacAndrews & Forbes in New York. The interview went poorly.
Afterwards, Ms. Lewinsky called Mr. Jordan and informed him. Mr.
Jordan, who had done nothing from early November to mid-December, then
called the chief executive officer of MacAndrews & Forbes, Ron
Perelman, to ``make things happen, if they could happen.'' Mr. Jordan
called Ms. Lewinsky back and told her not to worry. That evening,
MacAndrews & Forbes called Ms. Lewinsky and told her that she would be
given more interviews the next morning.
The next morning, Ms. Lewinsky received her reward for signing the
false affidavit. After a series of interviews with MacAndrews & Forbes
personnel, she was informally offered a job. Committee Report at 18
(citations omitted).
By this portrayal, the Committee Report suggests two conclusions:
first, that Ms. Lewinsky was ``reward[ed]'' with a job for her signing
of the affidavit; second, that the only reason Ms. Lewinsky was given a
second interview and ultimately hired at Revlon was Mr. Jordan's
intervention with Mr. Perelman. Once again, both conclusions are
demonstrably false.
Mr. Jordan and Ms. Lewinsky have testified under oath that there
was no causal connection between the job search and the affidavit. The
only person to draw (or, actually, recommend) any such linkage was Ms.
Tripp. The factual record easily debunks the second insinuation--that
Ms. Lewinsky was hired as a direct result of Mr. Jordan's call to Mr.
Perelman. One fact is virtually dispositive: the Revlon executive who
scheduled Ms. Lewinsky's January 9 interview and decided to hire her
that same day never even knew about Mr. Jordan's call to Mr. Perelman,
or any interest Mr. Perelman might have in Ms. Lewinsky, and thus could
not have been acting in furtherance of such a plan.
Ms. Lewinsky initially interviewed with Mr. Halperin of MacAndrews
& Forbes (Revlon's parent company) on December 18, 1997. (Mr. Jordan
had spoken with Mr. Halperin on December 11.) Prior to interviewing Ms.
Lewinsky, Mr. Halperin forwarded a copy of her resume to Mr. Jaymie
Durnan, also of MacAndrews & Forbes, for his consideration. Supp. at
1286-87 (Halperin FBI 302 3/27/98). Following his interview of Ms.
Lewinsky, Mr. Halperin thought that she would likely be ``shipped to
Revlon'' for consideration. Id.
Mr. Durnan received Ms. Lewinsky's resume from Mr. Halperin in mid-
December and, after reviewing it, decided to interview Ms. Lewinsky
after the first of the year. (He was going on vocation the last two
weeks of December). Supp. at 1053 (Durnan FBI 302 3/27/98). When he
returned from vacation, his assistant scheduled an interview with Ms.
Lewinsky for January 7, 1998, but, because of scheduling problems, he
rescheduled the interview for the next day, January 8, 1998. Supp. at
1049 (Durnan FBI 302 1/26/98). Mr. Durnan's decision to interview Ms.
Lewinsky was made independently of the decision by Mr. Halperin to
interview her. Indeed, only when Mr. Durnan interviewed Ms. Lewinsky in
January did he discover that she had had a December interview with Mr.
Halperin. Id.
It was this interview with Mr. Durnan that Ms. Lewinsky later
described as having gone poorly in her view. App. at 926 (Lewinsky GJ
8/6/98). The House Managers (``[t]he interview went poorly,'' House Br.
at 38), the Committee Report (``The interview went poorly'', id. at
21), and the OIC Referral (``The interview went poorly,'' id. at 184)
all emphasize only Ms. Lewinsky's impression of the job interview--for
obvious reasons: it tends to heighten the supposed relevance of the
Jordan call to Mr. Perelman. In other words, under this theory, Ms.
Lewinsky had no prospect of a job at MacAndrews & Forbes/Revlon until
Mr. Jordan resurrected her chances with Mr. Perelman.
Unfortunately, like so much other ``evidence'' in the obstruction
case, the facts do not bear out this sinister theory. Mr. Durnan had no
similar impression that his interview with Ms. Lewinsky had gone
``poorly.'' In fact, just the opposite was true: he was ``impressed''
with Ms. Lewinsky and thought that she would ``fit in'' with MacAndrews
& Forbes but ``there was nothing available at that time which suited
her interests.'' Supp. at 1054 (Durnan FBI 302 3/27/98). Mr. Durnan
therefore decided to forward Ms. Lewinsky's resume to Ms. Allyn Seidman
of Revlon. After the interview, he called Ms. Seidman and left her a
voicemail message about his interview with Ms. Lewinsky and explained
that, while there was no current opening at MacAndrews & Forbes,
``perhaps there was something available at Revlon.'' Id.
In the meantime, Mr. Jordan had called Mr. Perelman about Ms.
Lewinsky. Mr. Perelman described this conversation as ``very low key
and casual.'' Supp. at 3273 (Perelman FBI 302 1/26/98). Mr. Jordan
``made no specific requests and did not request'' him ``to intervene'';
nonetheless, Mr. Perelman agreed to ``look into it.'' Id. Later that
day, Mr. Durnan spoke to Mr. Perelman, who mentioned that he had
received a call from Mr. Jordan about a job candidate. Mr. Perelman
told Mr. Durnan ``let's see what we can do,'' Supp. at 3276 (Perelman
FBI 302 3/27/98), but Mr. Durnan never concluded that hiring Ms.
Lewinsky was ``mandatory.'' Supp. at 1055 (Durnan FBI 302 3/27/98). Mr.
Perelman later called Mr. Jordan and said they would do what they
could; Mr. Jordan expressed no urgency to Mr. Perelman. Supp. at 3276
(Perelman FBI 302 3/27/98).
By the time Mr. Durnan had discussed Ms. Lewinsky with Mr.
Perelman, he had already forwarded her resume to Ms. Seidman at Revlon.
Supp. at 1049-50 (Durnan FBI 302 1/26/98). After speaking with Mr.
Perelman, Mr. Durnan spoke with Ms. Seidman, following up on the
voicemail message he had left earlier that day. Supp. at 1055 (Durnan
FBI 302 3/27/98). Upon speaking to Ms. Seidman about Ms. Lewinsky,
however, Mr. Durnan did not tell Ms. Seidman that CEO Perelman has
expressed any interest in Ms. Lewinsky. Id. Rather, he simply said that
if she liked Ms. Lewinsky, she should hire her. Supp. at 1050 (Durnan
FBI 302 1/26/98).
For her part, Ms. Seidman has testified that she had no idea that
Mr. Perelman had expressed interest in Ms. Lewinsky:
Q: Did [Mr. Durnan] indicate to you that he had spoken to anyone
else within MacAndrews or Revlon about Monica Lewinsky?
A: Not that I recall, no.
Q: Do you have knowledge as to whether or not Mr. Perelman spoke
with anyone either on the MacAndrews & Forbes side or the Revlon side
about Monica Lewinsky?
A: No.
Supp. at 3642 (Seidman Depo. 4/23/98). Rather, Ms. Seidman's
consideration of Ms. Lewinsky proceeded on the merits. Indeed, as a
result of the interview, Ms. Seidman concluded that Ms. Lewinsky was
``bright, articulate and polished,'' Supp. at 3635 (Seidman FBI 302 1/
26/98), and ``a talented, enthusiastic, bright young woman'' who would
be a ``good fit in [her] department.'' Supp. at 3643 (Seidman Depo. 4/
23/98). She decided after the interview to hire Ms. Lewinsky, and
thereafter called Mr. Durnan ``and told him I thought she was great,''
Id.
In sum, Ms. Seidman made the decision to grant an interview and
hire Ms. Lewinsky on the merits. She did not even know that Mr.
Perelman had expressed any interest in Ms. Lewinsky or that Mr. Jordan
had spoken to Mr. Perelman the day before. As amply demonstrated, the
House Managers' Jordan-Perelman intervention theory just doesn't hold
water.
d. Conclusion
From the preceding discussion of the factual record, two
conclusions are inescapable. First, there is simply no direct evidence
to support the job-for-silence obstruction theory. From her initial
proffer to the last minutes of her grand jury appearance, the testimony
of Ms. Lewinsky has been clear and consistent: she was never asked or
encouraged to lie or promised a job for her silence or for a favorable
affidavit. Mr. Jordan has been equally unequivocal on this point.
Second, the ``chain of events'' circumstantial case upon which this
obstruction allegation must rest falls apart after inspection of the
full evidentiary record. Ms. Lewinsky's job search began on her own
volition and long before she was ever a witness in the Jones case. Mr.
Jordan's assistance originated with a request from Ms. Currie, which
had no connection to events in the Jones litigation. No pressure was
applied to anyone at any time. And Ms. Lewinsky's ultimate hiring had
absolutely no connection to her signing of the affidavit in the Jones
case. Viewed on this unambiguous record, the job-search allegations are
plainly unsupportable.
5. The President denies that he ``corruptly allowed his attorney to
make false and misleading statements to a Federal judge''
concerning Monica Lewinsky's affidavit
Article II (5) charges that the President engaged in an obstruction
of justice because he ``did not say anything'' during his Jones
deposition when his attorney cited the Lewinsky affidavit to Judge
Wright and stated that ``there is no sex of any kind in any manner,
shape, or form.'' Committee Report at 72. The rationale underlying this
charge of obstruction of justice hinges on an odd combination of a
bizarrely heightened legal obligation, a disregard of the actual record
testimony, and a good does of amateur psychology. This claim is
factually and legally baseless.
The law, of course, imposes no obligation on a client to monitor
every statement and representation made by his or her lawyer.
Particularly in the confines of an ongoing civil deposition, where
clients are routinely counseled to focus on the questions posed of them
and their responses and ignore all distractions, it is totally
inappropriate to try to remove a President from office because of a
statement by his attorney. Indeed, the President forcefully explained
to the grand jury that he was not focusing on the exchange between
lawyers but instead concentrating on his own 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.'' App. at 476;
``I was not paying a great deal of attention to this
exchange. I was focusing on my own testimony.'' App. at 510;
``I'm quite sure that I didn't follow all the interchanges
between the lawyers all that carefully.'' App. at 510;
``I am not even sure that when Mr. Bennett made that
statement that I was concentrating on the exact words he used.'' App.
at 511;
``When I was in there, I didn't think about my lawyers. I
was, frankly, thinking about myself and my testimony and trying to
answer the questions.'' App. at 512;
``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.'' App. at 513.
The Committee Report ignores the President's repeated and
consistent description of his state of mind during the deposition
exchange. Instead, the Committee Report and majority counsel's final
presentation undertake a novel exercise in video psychology, claiming
that by studying the President's facial expressions and by noting that
he was ``looking in Mr. Bennett's direction'' during the exchange, it
necessarily follows that the President was in fact listening to and
concentrating on every single word uttered by his attorney \108\ and
knowingly made a decision not to correct his attorney.
---------------------------------------------------------------------------
\108\ It is upon this same fanciful methodology that the Committee
Report premises the allegation of Article I (3) that the President lied
to the grand jury in providing these responses. Citing the President's
oft-criticized response about Mr. Bennett's use of the present tense in
his statement ``there is no sex of any'' (``It depends on what the
meaning of the word `is' is.'' App. at 510), the Committee Report
claims that such parsing contradicts the President's claim that he was
not paying close attention to the exchange. But contrary to the
Committee Report's suggestion, the President's response to this
question did not purport to describe the President's contemporaneous
thinking at the deposition, but rather only in retrospect whether he
agreed with the questioner that it was ``an utterly false statement.''
Id. The President later emphasized that he ``wasn't trying to give . .
. a cute answer'' in his earlier explanation, but rather only that the
average person thinking in the present tense would likely consider that
Mr. Bennett's statement was accurate since the relationship had ended
long ago. App. at 513.
---------------------------------------------------------------------------
The futility of such an exercise is manifest. It is especially
unsettling when set against the President's adamant denials that he
harbored any contemporaneous or meaningful realization of his
attorney's colloquy with the Judge. The theory is factually flimsy,
legally unfounded, and should be rejected.
6. The President denies that he obstructed justice by relating ``false
and misleading statements'' to ``a potential witness,'' Betty
Currie, ``in order to corruptly influence [her] testimony''
There is no dispute that the President met with his secretary, Ms.
Currie, on the day after his Jones deposition and discussed questions
he had been asked about Ms. Lewinsky. The Managers cast this
conversation in the most sinister light possible and alleges that the
President attempted to influence the testimony of a ``witness'' by
pressuring Ms. Currie to agree with an inaccurate version of facts
about Ms. Lewinsky. The Managers claim that ``the President essentially
admitted to making these statements when he knew they were not true.''
House Br. at 47. That is totally false. The President admitted nothing
of the sort and the Managers cite nothing in support. The President has
adamantly denied that he had any intention to influence Ms. Currie's
recollection of events or her testimony in any manner. The absence of
any such intention is further fortified by the undisputed factual
record establishing that to the President's knowledge, Ms. Currie was
neither an actual nor contemplated witness in the Jones litigation at
the time of the conversation. And critically, Ms. Currie testified
that, during the conversation, she did not perceive any pressure
``whatsoever'' to agree with any statement made by the President.
The President's actions could not as a matter of law support this
allegation. To obstruct a proceeding or tamper with a witness, there
must be both a known proceeding and a known witness. In the proceeding
that the President certainly knew about--the Jones case--Ms. Currie was
neither an actual nor prospective witness. As for the only proceeding
in which Ms. Currie ultimately became a witness--the OIC
investigation--no one asserts the President could have known it existed
at that time.
At the time of the January 18 conversation.\109\ Ms. Currie was not
a witness in the Jones case, as even Mr. Starr acknowledged: ``The
evidence is not that she was on the witness list, and we have never
said that she was.'' Transcript of November 19, 1998 Testimony at 192.
---------------------------------------------------------------------------
\109\ Ms. Currie remembers a second conversation similar in
substance a few days after the January 18 discussion, but still in
advance of the public disclosure of this matter on January 21, 1998.
Supp. at 561 (Currie GJ 1/27/98).
---------------------------------------------------------------------------
Nor was there any reason to suspect Ms. Currie would play any role
in the Jones case. The discovery period was, at the time of this
conversation, in its final days, and a deposition of Ms. Currie
scheduled and completed within that deadline would have been highly
unlikely.
Just as the President could not have intended to influence the
testimony of ``witness'' Betty Currie because she was neither an actual
nor a prospective witness, so too is it equally clear that the
President never pressured Ms. Currie to alter her recollection. Such
lack of real or perceived pressure also fatally undercuts this charge.
Despite the prosecutor's best efforts to coax Ms. Currie into saying
she was pressured to agree with the President's statements, Ms. Currie
adamantly denied any such pressure. As she testified:
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.
* * * * * * *
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.
Supp. at 668 (Currie GJ 7/22/98). Ms. Currie explained that she felt no
pressure because she basically agreed with the President's statements:
Q: You testified with respect to the statements as the President
made them, and, in particular, the four statements that we've already
discussed. You felt at the time that they were technically accurate? Is
that a fair assessment of your testimony?
A: That's a fair assessment.
Q: But you suggested that at the time. Have you changed your
opinion about it in retrospect?
A: I have not changed my opinion, no.
Supp. at 667 (Currie GJ 7/22/98); see also Supp. at 534 (Currie FBI 302
1/24/98) (``Currie advised that she responded ``right'' to each of the
statements because as far as she knew, the statements were basically
right.''); Supp. at 665 (Currie GJ 7/22/98) (``I said `Right' to him
because I thought they were correct, `Right, you were never really
alone with Monica, right' '').
What, then, to make of this conversation if there was no effort to
influence Ms. Currie's testimony? Well, to understand fully the
dynamic, one must remove the memory of all that has transpired since
January 21 and place oneself in the President's position after the
Jones deposition. The President had just faced unexpectedly detailed
questions about Ms. Lewinsky. The questions addressed, at times, minute
details and at other times contained bizarre inaccuracies about the
relationship. As the President candidly admitted in his grand jury
testimony, he had long thought the day would come when his relationship
with Ms. Lewinsky would become public:
``I formed an opinion early in 1996, once I got into this
unfortunate and wrong conduct, that when it stopped, which I knew I'd
have to do and which I should have done long before I did, that she
would talk about it. Not because Monica Lewinsky is a bad person. She's
basically a good girl. She's a good young woman with a good heart and a
good mind. . . . But I knew that the minute there was no longer any
contact, she would talk about this. She would have to. She couldn't
help it. It was, it was part of her psyche.''
App. at 575-76 (emphasis added). Now, with the questioning about Ms.
Lewinsky in the Jones case and the publication of the first internet
report article about Ms. Lewinsky, the President knew that a media
storm was about to erupt. And erupt it did.
So it was hardly surprising that the President reached out to Ms.
Currie at this time. He was trying to gather all available information
and assess the political and personal consequences that this revelation
would soon have. Though he did not confide fully in Ms. Currie, he knew
Ms. Currie was Ms. Lewinsky's main contact and thus could have
additional relevant information to help him assess and respond to the
impending media scrutiny. As the President 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.''
App. at 593. And further, ``[W]hat I was trying to determine was
whether my recollection was right and that she was always in the office
complex when Monica was there. . . . I thought what would happen is
that it would break in the press, and I was trying to get the facts
down.'' App. at 507-08 (emphasis added). As the President concluded:
``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.'' App. at 508.
Ms. Currie's grand jury testimony confirms the President's
``agitated'' state of mind and information-gathering purpose for the
discussion. She testified that the President appeared, in her words, to
be ``shocked or surprised that this was an issue, and he was just
talking.'' Supp. at 668 (Currie GJ 7/22/98). She described the
President's remarks as ``both statements and questions at the same
time.'' Supp. at 534 (Currie FBI 302 1/24/98).
Finally, the inference that the President intended to influence Ms.
Currie's testimony before she ever became a witness is firmly undercut
by the advice the President gave to her when she ultimately did become
a witness in the OIC investigation:
``And then I remember when I knew she was going to have to testify
to the grand jury, and I, I felt terrible because she had been through
this loss of her sister, this horrible accident Christmas that killed
her brother, and her mother was in the hospital. I was trying to do--to
make her understand that I didn't want her to, to be untruthful to the
grand jury. And if her memory was different than mine, it was fine,
just go in there and tell them what she thought. So, that's all I
remember.''
App. at 593; see also App. at 508 (``I think Ms. Currie would also
testify that I explicitly told her, once I realized you were involved
in the Jones case--you, the Office of Independent Counsel--and that she
might have to be called as a witness, that she should just go in there
and tell the truth, tell what she knew, and be perfectly
truthful.'').\110\
---------------------------------------------------------------------------
\110\ Only groundless speculation and unfounded inferences support
the Committee Report's mirror allegation of Article I (4) that the
President lied to the grand jury when he described his motivation in
discussing these matters with Ms. Currie. That allegation should be
rejected for the same reasons discussed more fully in the text of this
section.
---------------------------------------------------------------------------
In sum, neither the testimony of Ms. Currie nor that of the
President--the only two participants in this conversation--supports the
inference that the conversation had an insidious purpose. The
undisputed evidence shows that Ms. Currie was neither an actual nor
contemplated witness in the Jones case. And when Ms. Currie did
ultimately become a witness in the Starr investigation, the President
told her to tell the truth, which she did.
7. The President denies that he obstructed justice when he relayed
allegedly ``false and misleading statements'' to his aides
This final allegation of Article II should be rejected out of hand.
The President has admitted misleading his family, his staff, and the
Nation about his relationship with Ms. Lewinsky, and he has expressed
his profound regret for such conduct. But this Article asserts that the
President should be impeached and removed from office because he failed
to be candid with his friends and aides about the nature of his
relationship with Ms. Lewinsky. These allegedly impeachable denials
took place in the immediate aftermath of the Lewinsky publicity--at the
very time the President was denying any improper relationship with Ms.
Lewinsky in nearly identical terms on national television. Having made
this announcement to the whole country on television, it is simply
absurd to believe that he was somehow attempting corruptly to influence
the testimony of aides when he told them virtually the same thing at
the same time.\111\ Rather, the evidence demonstrates that the
President spoke with these individuals regarding the allegations
because of the longstanding professional and personal relationships he
shared with them and the corresponding responsibility he felt to
address their concerns once the allegations were aired. The Managers
point to no evidence--for there is none--that the President spoke to
these individuals for any other reason, and certainly not that he spoke
with them intending to obstruct any proceeding.\112\ They simply assert
that since he knew there was an investigation, his intent had to be
that they relate his remarks to the investigators and grand jurors.
House Br. at 80.
---------------------------------------------------------------------------
\111\ As the Supreme Court has held, to constitute obstruction of
justice such actions must be taken `'with an intent to influence
judicial or grand jury proceedings.'' United States v. Aguilar, 515
U.S. 592, 599 (1995).
\112\ The Committee Reports's allegation under Article I (4) that
the President committed perjury before the grand jury when, in the
course of admitting that he misled his close aides, he stated that he
endeavored to say to his aides ``things that were true,'' App. at 557-
60, without disclosing the full nature of the relationship is simply
bizarre.
---------------------------------------------------------------------------
However, there is no allegation that the President attempted to
influence these aides' testimony about their own personal knowledge or
observations. Nor is there any evidence that the President knew any of
these aides would ultimately be witnesses in the grand jury when he
spoke with them. None was under subpoena at the time the denials took
place and none had any independent knowledge of any sexual activity
between the President and Ms. Lewinsky. Indeed, the only evidence these
witnesses could offer on this score was the hearsay repetition of the
same public denials that the members of the grand jury likely heard on
their home television sets. Under the strained theory of this article,
every person who heard the President's public denial could have been
called to the grand jury to create still additional obstructions of
justice.
To bolster this otherwise unsupportable charge, the Managers point
to an excerpt of the President's testimony wherein he acknowledged
that, to the extent he shared with anyone any details of the facts of
his relationship with Ms. Lewinsky, they could conceivably be called
before the grand jury--which for the sake of his friends the President
wanted to avoid:
``I think I was quite careful what I said after [January 21]. I may
have said something to all of these people to that effect [denying an
improper relationship], but I'll also--whenever anybody asked me any
details, I said, look, I don't want you to be a witness or I turn you
into a witness or give you information that could get you in trouble. I
just wouldn't talk. I, by and large, didn't talk to people about
this.''
App. at 647. The point was not that the President believed these people
would be witnesses and so decided to mislead them, but rather that he
decided to provide as little information as possible (consistent with
his perceived obligation to address their legitimate concerns) in order
to keep them from becoming witnesses solely because of what he told
them.
In conclusion, this Article fails as a matter of law and as a
matter of common sense. It should be soundly rejected.
VI. The Structural Deficiencies of the Articles Preclude a
Constitutionally Sound Vote
The Constitution prescribes a strict and exacting standard for the
removal of a popularly elected President. Because each of the two
articles charges multiple unspecified wrongs, each is
unconstitutionally flawed in two independent respects.
First, by charging multiple wrongs in one article, the House of
Representatives has made it impossible for the Senate to comply with
the Constitutional mandate that any conviction be by the concurrence of
two-thirds of the members. Since Senate Rules require that an entire
article be voted as a unit, sixty-seven Senators could conceivably vote
to convict while in wide disagreement as to the alleged wrong
committed--for example, they could completely disagree on what
statement they believe is false--in direct violation of the
Constitutional requirements of ``Concurrence'' and due process.
Second, by charging perjury without identifying a single allegedly
perjurious statement, and charging obstruction of justice without
identifying a single allegedly obstructive action by the President, the
House of Representatives has failed to inform the Senate either of the
statements it agreed were perjurious (if it agreed), or of the actual
conduct by the President that it agreed constituted obstruction of
justice (again, if it agreed). The result is that the President does
not have the most basic notice of the charges against him required by
due process and fundamental fairness. He is not in a position to defend
against anything other than a moving target. The guesswork involved
even in identifying the charges to be addressed in this Trial
Memorandum highlights just how flawed the articles are.\113\
---------------------------------------------------------------------------
\113\ The House Managers cannot constitutionally unbundle the
charges in the articles or provide the missing specifics. This is
because the Constitution provides that only the House of
Representatives can amend articles of impeachment, and judicial
precedent demonstrates that unduly vague indictments cannot be cured by
a prosecutor providing a bill of particulars. Only the charging body--
here, the House--can particularize an impermissibly vague charge.
Indeed, Senate precedent confirms that the entire House must grant
particulars when articles of impeachment are not sufficiently specific
for a fair trial. During the 1933 impeachment trial of Judge Harold
Louderback, counsel for the Judge filed a motion to make the original
Article V, the omnibus or ``catchall'' article, more definite. 77 Cong
Rec. 1852, 1854 (1933). The House Managers unanimously consented to the
motion, which they considered to be akin to a motion for a bill of
particulars, and the full House amended Article V to provide the
requested specifics. Id. Thereafter, the Clerk of the House informed
the Senate that the House had adopted an amendment to Article V. Id.
Judge Louderback was then tried on the amended article. Judge
Louderback was subsequently acquitted on all five articles. Impeachment
of Richard M. Nixon, President of the United States, Report by Staff of
the Impeachment Inquiry, House Comm. on the Judiciary, 93d Cong., 2d
Sess., Appendix B at 55 (Feb. 1974).
The power to define and approve articles of impeachment is vested
by the Constitution exclusively in the House of Representatives. U.S.
Const. Art I, Sec. 2, cl. 5. It follows that any alteration of an
Article of Impeachment can be performed only by the House. The House
cannot delegate (and has not delegated) to the Managers the authority
to amend or alter the Articles, and Senate precedent demonstrates that
only the House (not the Managers unilaterally) can effect an amendment
to articles of impeachment.
Case law is consistent with this precedent. When indictments are
unconstitutionally vague, they cannot be cured by a prosecutor's
provision of a bill of particulars, because only the charging body can
elaborate upon vague charges. As the Supreme Court noted in Russell v.
United States, 369 U.S. 749, 771 (1962):
``It is argued that any deficiency in the indictments in these
cases could have been cured by bills of particulars. But it is a
settled rule that a bill of particular cannot save an invalid
indictment . . . To allow the prosecutor, or the court, to make a
subsequent guess as to what was in the minds of the grand jury at the
time they returned the indictment would deprive the defendant of a
basic protection which the guaranty of the intervention of a grand jury
was designed to secure. For a defendant could then be convicted on the
basis of facts not found by, and perhaps not even presented to, the
grand jury which indicted him. This underlying principle is reflected
by the settled rule in the federal courts that an indictment may not be
amended except by resubmission to the grand jury. . . .''
See also Stirone v. United States, 361 U.S. 212, 214, 216 (1960)
quoting Ex Parte Bain, 121 U.S. 1 (1887) (``If it lies within the
province of a court to charging part to an indictment to suit its own
notions of what it ought to have been or what they grand jury would
probably have made it if their attention had been called to suggested
changes, the great importance which the common law attaches to an
indictment by a grand jury . . . may be frittered away until its value
is almost destroyed.'').
---------------------------------------------------------------------------
The result is a pair of articles whose structure does not permit a
constitutionally sound vote to convict. If they were counts in an
indictment, these articles would not survive a motion to dismiss. Under
the unique circumstances of an impeachment trial, they should fail:
a. the articles are both unfairly complex and lacking in specificity
A cursory review of the articles demonstrates that they each allege
multiple and unspecified acts of wrongdoing.
1. The Structure of Article I
Article I accuses the President of numerous different wrongful
actions. The introductory paragraph charges the President with (i)
violating his constitutional oath faithfully to execute his office and
defend the Constitution; (ii) violating his constitutional duty to take
care that the laws be faithfully executed; (iii) willfully corrupting
and manipulating the judicial process; and (iv) impeding the
administration of justice.
The second paragraph charges the President with (a) perjurious, (b)
false, and (c) misleading testimony to the grand jury concerning ``one
or more'' of four different subject areas:
(1) the nature and details of this 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 action;
(4) his corrupt efforts to influence the testimony of witnesses and
to impede the discovery of evidence in that civil rights action.
The third paragraph alleges that, as a consequence of the
foregoing, the President has, to the manifest injury of the people of
the United States:
undermined the integrity of his office;
brought disrepute on the Presidency;
betrayed his trust as President; and
acted in a manner subversive of the rule of law and
justice.
It is imperative to note that although Article I alleges
``perjurious, false and misleading'' testimony concerning ``one or
more'' of four general subject areas, it does not identify the
particular sworn statements by the President that were allegedly
``perjurious,'' (and therefore potentially illegal), or ``false'' or
``misleading'' (and therefore not unlawful). In fact, contrary to the
most basic rules of fairness and due process, Article I does not
identify a single specific statement that is at issue.
In sum, Article I appears to charge the President with four general
forms of wrongdoing (violations of two oaths, manipulation of legal
process, impeding justice), involving three (perjurious, false,
misleading) distinct types of statements, concerning different subjects
(relationship to Ms. Lewinsky, prior deposition testimony, prior
statements of his attorney, obstruction of justice),\114\ resulting in
four species of harms either to the Presidency (undermining its
integrity, bringing it into disrepute) or to the people (acting in a
manner subversive of the rule of law and to the manifest injury of the
people). And it alleges all of this without identifying a single,
specific perjurious, false or misleading statement.
---------------------------------------------------------------------------
\114\ It appears that each of these topic areas includes various,
unspecified allegedly perjurious, false and misleading statements.
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Absent a clear statement of which statements are alleged to have
been perjurious, and which specific acts are alleged to have been
undertaken with the purpose of obstructing the administration of
justice, it is impossible to prepare a defense. It is a fundamental
tenet of our jurisprudence that an accused must be afforded notice of
the specific charges against which he must defend. Neither the Referral
of the Office of the Independent Counsel, nor the Committee Report of
the Judiciary Committee, nor the House Managers' Trial Memorandum was
adopted by the House, and none of them can provide the necessary
particulars. It is impossible to know whether the different statements
and acts charged in the Referral, or the Report, or the Trial
Memorandum, or all, or none, are what the House had in mind when it
passed the Articles.
2. The Structure of Article II
Article II accuses the President of a variety of wrongful acts. The
introductory paragraph charges the President with (i) violating his
constitutional oath faithfully to execute his office and defend the
Constitution and (ii) violating his constitutional duty to take care
that the laws be faithfully executed by (iii) preventing, obstructing
and impeding the administration of justice by engaging (personally and
through subordinates and agents) in a scheme designed to delay, impede,
cover up, and conceal the existence of evidence and testimony related
to a Federal civil rights action.
The second paragraph specifies the various ways in which the
violations in the first paragraph are said to have occurred. It states
that the harm was effectuated by ``means'' that are not expressly
defined or delimited, but rather are said to include ``one or more'' of
seven ``acts'' attributed to the President:
(1) corruptly encouraging a witness to execute a perjurious, false
and misleading affidavit;
(2) corruptly encouraging a witness to give perjurious, false and
misleading testimony if called to testify;
(3) corruptly engaging in, encouraging or supporting a scheme to
conceal evidence;
(4) intensifying and succeeding in an effort to secure job
assistance to a witness in order to corruptly prevent the truthful
testimony of that witness at a time when that witness's truthful
testimony would have been harmful;
(5) allowing his attorney to make false and misleading statements
to a federal judge in order to prevent relevant questioning;
(6) relating a false and misleading account of events to a
potential witness in a civil rights action in order to corruptly
influence the testimony of that person;
(7) making false and misleading statements to potential witnesses
in a Federal grand jury proceeding in order to corruptly influence
their testimony and causing the grand jury to receive false and
misleading information.
The third paragraph alleges that, as a result of the foregoing, the
President has, to the manifest injury of the people of the United
States:
undermined the integrity of his office;
brought disrepute on the Presidency;
betrayed his trust as President; and
acted in a manner subversive of the rule of law and
justice.
As with the first article, Article II does not set forth a single
specific act alleged to have been performed by the President. Instead,
it alleges general ``encourage[ment]'' to execute a false affidavit,
provide misleading testimony, and conceal subpoenaed evidence. This
Article also includes general allegations that the President undertook
to ``corruptly influence'' and/or ``corruptly prevent'' the testimony
of potential witnesses and that he ``engaged in . . . or supported'' a
scheme to conceal evidence. Again, the Senate and the President have
been left to guess at the charges (if any) actually agreed upon by the
House.
b. conviction on these articles would violate the constitutional
requirement that two-thirds of the senate reach agreement that specific
wrongdoing has been proven
1. The Articles Bundle Together Disparate Allegations in Violation of
the Constitution's Requirements of Concurrence and Due Process
a. The Articles Violate the Constitution's Two-Thirds
Concurrence Requirement
Article I, section 3 of the Constitution provides that ``no person
shall be convicted [on articles of impeachment] without the Concurrence
of two thirds of the Members present.'' U.S. Const. Art. I, Sec. 3, cl.
6. The Constitution's requirement is plain. These must be
``Concurrence,'' which is to say genuine, reliably manifested,
agreement, among those voting to convict. Both the committing of this
task to the Senate and the two-thirds requirement are important
constitutional safeguards reflecting the Framers' intent that
conviction not come easily. Conviction demands real and objectively
verifiable agreement among a substantial supermajority.
Indeed, the two-thirds supermajority requirement is a crucial
constitutional safeguard. Supermajority provisions are constitutional
exceptions \115\ to the presumption that decisions by legislative
bodies shall be made by majority rule.\116\ These exceptions serve
exceptional ends. The two-thirds concurrence rule serves the
indispensable purpose of protecting the people who chose the President
by election. By giving a ``veto'' to a minority of Senators, the
Framers sought to ensure the rights of an electoral majority--and to
safeguard the people in their choice of Executive. Only the Senate and
only the requirement of a two-thirds concurrence could provide that
assurance.
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\115\ See e.g., U.S. Const. Art. I, Sec. 7, cl. 2 (two thirds vote
required to override Presidential veto); U.S. Const. Art. II, Sec. 2,
cl. 2 (two thirds required for ratification of treaties); U.S. Const.
Art. V (two thirds required to propose constitutional amendments); U.S.
Const. Art. I, Sec. 5, cl. 2 (two thirds required to expel members of
Congress).
\116\ Madison referred to majority voting as ``the fundamental
principal of free government.'' Federalist No. 58 at 248 (G. Wills ed.
1982).
---------------------------------------------------------------------------
The ``Concurrence'' required is agreement that the charges stated
in specific articles have in fact been proved, and the language of
those articles is therefore critical. Since the House of
Representatives is vested with the ``sole Power of Impeachment,'' U.S.
Const. Art. I, Sec. 2, cl. 5, the form of those articles cannot be
altered by the Senate. And Rule XXIII of the Rules of Procedure and
Practice in the Senate when Sitting on Impeachment Trials (``Senate
Rules'') provides that ``[a]n article of impeachment shall not be
divisible for the purpose of voting thereon at any time during the
trial.''
It follows that each Senator may vote on an article only in its
totality. By the express terms of Article I, a Senator may vote for
impeachment if he or she finds that there was perjurious, false and
misleading testimony in any ``one or more'' of four topic areas. But
that prospect creates the very real possibility that ``conviction''
could occur even though fewer than two-thirds of the Senators actually
agree that any particular false statement was made.\117\ Put
differently, the article's structure presents the possibility that the
President could be convicted on Article I even though he would have
been acquitted if separate votes were taken on individual allegedly
perjurious statements. To illustrate the point, consider that it would
be possible for conviction to result even with as few as seventeen
Senators agreeing that any single statement was perjurious, because
seventeen votes for one statement in each of four categories would
yield 68 votes, one more than necessary to convict. The problem is even
worse if Senators agree that there is a single perjurious statement but
completely disagree as to which statement within the 176 pages of
transcript they believe is perjurious. Such an outcome would plainly
violate the Constitution's requirement that there be conviction only
when a two-thirds majority agrees.
---------------------------------------------------------------------------
\117\ There remains the additional problem that the articles allege
not specific perjurious statements, but perjury within a topic area.
Perjury as to a category (rather than as to specific statements) is an
incomprehensible notion.
---------------------------------------------------------------------------
The very same flaw renders Article II unconstitutional as well.
That Article alleges a scheme of wrongdoing effected through ``means''
including ``one or more'' of seven factually and logically discrete
``acts.'' That compound structure is fraught with the potential to
confuse. For example, the Article alleges both concealment of gifts on
December 28, 1997, and false statements to aides in late January 1998.
These two allegations involve completely different types of behavior.
They are alleged to have occurred in different months. They involved
different persons. And they are alleged to have obstructed justice in
different legal proceedings. In light of Senate Rule XXIII's
prohibition on dividing articles, the combination of such patently
different types of alleged wrongdoing in a single article creates the
manifest possibility that votes for conviction on this article would
not reflect any two-third agreement whatsoever.
The extraordinary problem posed by such compound articles is well-
recognized and was illustrated by the proceedings in the impeachment of
Judge Walter Nixon. Article III of the Nixon proceedings, like the
articles here, was phrased in the disjunctive and charged multiple
false statements as grounds for impeachment. Judge Nixon moved to
dismiss Article III on a number of grounds, including on the basis of
its compound structure.\118\ Although that motion was defeated in the
full Senate by a vote of 34-63,\119\ the 34 Senators who voted to
dismiss were a sufficient number to block conviction on Article III.
---------------------------------------------------------------------------
\118\ See Report of the Senate Impeachment Trial Committee on the
Articles of Impeachment Against Judge Walter L. Nixon, Jr., Hearings
Before the Senate Impeachment Trial Committee, 101st Cong., 1st Sess.
at 257, 281-84 (1989).
\119\ Judge Nixon Proceedings at 430-32.
---------------------------------------------------------------------------
Judge Nixon (although convicted on the first two articles) was
ultimately acquitted on Article III by a vote of 57 (guilty) to 40 (not
guilty).\120\ Senator Biden, who voted not guilty on the article,
stated that the structure of the article made it ``possible . . . for
Judge Nixon to be convicted under article III even though two-thirds of
the members present did not agree that he made any one of the false
statements.'' \121\ Senator Murkowski concurred: ``I don't appreciate
the omnibus nature of article III, and I agree with the argument that
the article could easily be used to convict Judge Nixon by less than
the super majority vote required by the Constitution.'' Id. at
464.\122\ And Senator Dole stated that ``Article III is redundant,
complex and unnecessarily confusing. . . . It alleges that Judge Nixon
committed five different offenses in connection with each of fourteen
separate events, a total of seventy charges. . . . [I]t was virtually
impossible for Judge Nixon and his attorney's to prepare an adequate
defense.'' \123\
---------------------------------------------------------------------------
\120\ Id. at 435-36.
\121\ Statement of Senator Joseph R. Biden, Jr., id. at 459.
\122\ See also Statement of Senator Bailey, Impeachment of Judge
Harold Louderback, 77 Cong. Rec. 4238 (May 26, 1933) (respondent should
be tried on individual articles and not on all of them assembled into
one article).
\123\ Statement of Senator Robert Dole, Judge Nixon Proceedings at
457.
---------------------------------------------------------------------------
In his written statement filed after the voting was completed,
Senator Kohl pointed out the dangers posed by combining multiple
accusations in a single article:
``Article III is phrased in the disjunctive. It says that Judge
Nixon concealed his conversations through `one or more' of 14 false
statements.
``This wording presents a variety of problems. First of all, it
means that Judge Nixon can be convicted even if two thirds of the
Senate does not agree on which of his particular statements were false.
. . .
``The House is telling us that it's OK to convict Judge Nixon on
Article III even if we have different visions of what he did wrong. But
that's not fair to Judge Nixon, to the Senate, or to the American
people. Let's say we do convict on Article III. The American people--to
say nothing of history--would never know exactly which of Judge Nixon's
statements were regarded as untrue. They'd have to guess. What's more,
this ambiguity would prevent us from being totally accountable to the
voters for our decision.'' \124\
\124\ Statement of Senator Herbert H. Kohl, id. at 449 (emphasis
added). Senator Kohl did not believe that the constitutional question
concerning two-thirds concurrence had to be answered in the Judge Nixon
proceedings because he believed that the bundling problem created an
unfairness (in effect, a due process violation) that precluded
conviction. Id.
---------------------------------------------------------------------------
As noted, the Senate acquitted Judge Nixon on the omnibus article--very
possible because of the constitutional and related due process and
fairness concerns articulated by Senator Kohl and others.\125\
---------------------------------------------------------------------------
\125\ See also Constitutional Grounds for Presidential Impeachment:
Modern Precedents, Report by the Staff of the Impeachment Inquiry,
Comm. on Judiciary, 105th Cong., 2d Sess. at 12 (1998) (discussing Sen.
Kohl's position).
---------------------------------------------------------------------------
The constitutional problems identified by those Senators are
significant when a single federal judge (one of roughly 1000) is
impeached. But when the Chief Executive and sole head of one entire
branch of our government stands accused, those infirmities are
momentous. Fairness and the appearance of fairness require that the
basis for any action this body might take be clear and specific. The
Constitution clearly forbids conviction unless two thirds of the Senate
concurs in a judgment. Any such judgment would be meaningless in the
absence of a finding that specific, identifiable, wrongful conduct has
in fact occurred. No such conclusion is possible under either article
as drafted.
b. Conviction on the Articles Would Violate Due Process
Protections that Forbid Compound Charges in a
Single Accusation
Even apart from the Constitution's clear requirement of
``Concurrence'' in Article I, section 3, the fundamental principles of
fairness and due process that underlie our Constitution and permeate
our procedural and substantive law compel the same outcome. In
particular, the requirement that there be genuine agreement by the
deciding body before an accused is denied life, liberty or property is
a cornerstone of our jurisprudence.\126\
---------------------------------------------------------------------------
\126\ Judicial precedent is persuasive here on these due process
and fairness questions. Indeed, in prior impeachment trials, the Senate
has been guided by decisions of the courts, because they reflect
cumulative wisdom concerning fairness and the search for justice.
During the impeachment trial of Judge Alcee L. Hastings, Senator
Specter stated:
``[T]he impeachment process relies in significant measure on
decisions of the court and the opinion of judges . . . [T]he decisions
and interpretations of the courts should be highly instructive to us.
In our system of Government, it has been the courts that through the
years have been called upon to construe, define and apply the
provisions of our Constitution. Their decisions reflect our values and
our evolving notions of justice . . . Although we are a branch of
Government coequal with the judiciary, and by the Constitution vested
with the `sole' power to try impeachments, I believe that the words and
reasoning of judges who have struggled with the meaning and application
of the Constitution and its provisions ought to be given great heed
because that jurisprudence embodies the values of fairness and justice
that ought to be the polestar of our own determinations.'' (S. Doc.
101-18, 101st Cong., 1st Sess. at 740-41.)
(As Senator Specter observed, judicial rules have been developed
and refined over the years to assure that court proceedings are fair,
and that an accused is assured the necessary tools to prepare a proper
defense, including proper notice.
---------------------------------------------------------------------------
While in the federal criminal context due process requires that
there be genuine agreement among the entire jury, see United States v.
Fawley, 137 F.3d 458, 470 (7th Cir. 1998), Schad v. Arizona, 501 U.S.
624 (1991) (plurality), in the impeachment context, that requirement of
genuine agreement must be expressed by a two-thirds supermajority. But
the underlying due process principles is the same in both settings.
This basic principle is bottomed on two fundamental notions: (1) that
there be genuine agreement--mutuality of understanding--among those
voting to convict, and (2) that the unanimous verdict be understood (by
the accused and by the public) to have been the product of genuine
agreement.
This principle is given shape in the criminal law in the well-
recognized prohibition on ``duplicitous'' charges. ``Duplicity is the
joining in a single count of two or more distinct and separate
offenses.'' United States v. UCO Oil, 546 F.2d 833, 835 (9th Cir.
1976.) In the law of criminal pleading, a single count that charges two
or more separate offenses is duplicitous. See United States v. Parker,
991 F.2d 1493, 1497-98 (9th Cir. 1993); United States v. Hawkes, 753
F.2d 355, 357 (4th Cir. 1985).\127\ A duplicitous charge in an
indictment violates the due process principle that ``the requisite
specificity of the charge may not be compromised by the joining of
separate offenses.'' Schad v. Arizona, 501 U.S. 624, 633 (1991)
(plurality).
---------------------------------------------------------------------------
\127\ See also Federal Rules of Criminal Procedure, Rule 8(a):
``Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses
charged . . . are of the same or similar charter or are based on the
same act or transaction or on two or more acts or transactions
connected together or constituting parts of a common scheme or plan.''
(emphasis added).
---------------------------------------------------------------------------
More specifically, a duplicitous charge poses the acute danger of
conviction by a less-than-unanimous jury; some jurors may find the
defendant guilty of one charge but not guilty of a second, while other
jurors find him guilty of a second charge but not the first. See United
States v. Saleh, 875 F.2d 535, 537 (6th Cir. 1989); United States v.
Stanley, 597 F.2d 866, 871 (4th Cir. 1979); Bins v. United States, 331
F.2d 390, 393 (5th Cir. 1964).\128\ Our federal system of justice
simply does not permit conviction by less than unanimous agreement
concerning a single, identified charge. See United States v. Fawley,
137 F.3d 471 (7th Cir. 1998) (conviction requires unanimous agreement
as to particular statements); United States v. Holley, 942 F.2d 916,
929 (5th Cir. 1991) (reversal required where no instruction was given
to ensure that all jurors concur in conclusion that at least one
particular statement was false); see also United States v. Gipson, 553
F.2d 453, 458-59 (5th Cir. 1977) (right to unanimous verdict violated
by instruction authorizing conviction if jury found defendant committed
any one of six acts proscribed by statute).\129\ The protection against
conviction by less than full agreement by the factfinders is enshrined
in Rule 31(a) of the Federal Rules of Criminal Procedure which dictates
that ``[t]he verdict shall be unanimous.'' \130\
---------------------------------------------------------------------------
\128\ Each of the four categories charged here actually comprises
multiple allegedly perjurious statements. Thus, the dangers of
duplicitousness are increased exponentially.
\129\ The Supreme Court has stated that ``[u]nanimity in jury
verdicts is required where the Sixth and Seventh Amendments apply.''
Andres v. United States, 333 U.S. 740, 748 (1948); Apodaca v. Oregon,
406 U.S. 404 (1972) (same).
\130\ That rule gives expression to a criminal defendant's due
process right to a unanimous verdict. See United States v. Fawley, 137
F.2d 458, 4771 (7th Cir. 1988). Because the Constitution does not
tolerate the risk of a less than unanimous verdict in the criminal
setting, ``where the complexity of a case or other factors create the
potential for confusion as to the
legal theory or factual basis which sustains a defendant's conviction,
a specific unanimity instruction is required.'' United States v.
Jackson, 879 F.2d 85, 88 (3d Cir. 1989) (citing United States v. Beros,
833 F.2d 455, 460 (3d Cir. 1987)). Such instructions are required where
the government charges several criminal acts, any of which alone could
have supported the offense charged, because of the need to provide
sufficient guidance to assure that all members of the jury were
unanimous on the same act or acts of illegality. Id. at 88. As the
Seventh Circuit recently concluded in a case alleging multiple false
statements, ``the jury should have been advised that in order to have
convicted [the defendant], they had to unanimously agree that a
particular statement contained in the indictment was falsely made.''
Fawley, 137 F.2d at 470.
---------------------------------------------------------------------------
Thus, where the charging instrument alleges multiple types of
wrongdoing, the unanimity requirement ``means more than a conclusory
agreement that the defendant has violated the statute in question;
there is a requirement of substantial agreement as to the principal
factual elements underlying a specified offense.'' United States v.
Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983) (emphasis added).
Accordingly, although there need not be unanimity as to every bit of
underlying evidence, due process ``does require unanimous agreement as
to the nature of the defendant's violation, not simply that a violation
has occurred.'' McKoy v. North Carolina, 494 U.S. 433, 449 n.5 (1990)
(Blackmun, J., concurring). Such agreement is necessary to fulfill the
demands of fairness and rationality that inform the requirement of due
process. See Schad, 501 U.S. at 637.\131\
---------------------------------------------------------------------------
\131\ In our federal criminal process, a duplicitous pleading
problem may sometimes be cured by instructions to the jury requiring
unanimous agreement on a single statement, see Fawley, supra, but that
option is not present here. Not only do the Senate Rules not provide
for the equivalent of jury instructions, they expressly rule out the
prospect of subdividing an article of impeachment for purposes of
voting. See Senate Impeachment Rule XXIII. Nor is the duplicitousness
problem presented here cured by any specific enumeration of elements
necessary to be found by the factfinder. See, e.g., Santarpio v. United
States, 560 F.2d 448 (1st Cir. 1977) (duplicitous charge harmless
because indictments adequately set out the elements of the federal
crime; appellants were not misled or prejudiced). Article I does not
enumerate specific elements to be found by the factfinder. To the
contrary, the Article combines multiple types of wrong, allegedly
performed by different types of statements, the different types
occurring in multiple subject matter areas, and all having a range of
allegedly harmful effects.
---------------------------------------------------------------------------
Where multiple accusations are combined in a single charge, neither
the accused nor the factfinder can know precisely what that charge
means. When the factfinder body cannot agree upon the meaning of the
charge, it cannot reach genuine agreement that conviction is warranted.
These structural deficiencies preclude a constitutionally sound vote on
the articles.
c. conviction on these articles would violate due process protections
prohibiting vague and nonspecific accusations
1. The Law of Due Process Forbids Vague and Nonspecific Charges
Impermissibly vague indictments must be dismissed, because they
``fail[] to sufficiently apprise the defendant `of what he must be
prepared to meet.' '' United States v. Russell, 369 U.S. 749, 764
(1962) (internal quotation omitted). In Russell, the indictment at
issue failed to specify the subject matter about which the defendant
had allegedly refused to answer questions before a Congressional
subcommittee. Instead, the indictment stated only that the questions to
which the answers were refused ``were pertinent to the question then
under inquiry'' by the Subcommittee. Id. at 752. The Court held that
because the indictment did not provide sufficient specificity, it was
unduly vague and therefore had to be dismissed. Id. at 773. The Supreme
Court explained that dismissal is the only appropriate remedy for an
unduly vague indictment, because only the charging body can elaborate
upon vague charges:
``To allow the prosecutor, or the court, to make a subsequent guess
as to what was in the minds of the grand jury at the time they returned
the indictment would deprive the defendant of a basic protection which
the guaranty of the intervention of a grand jury was designed to
secure. For a defendant could then be convicted on the basis of facts
not found by, and perhaps not even presented to, the grant jury which
indicted him. This underlying principle is reflected by the settled
rule in the federal courts that an indictment may not be amended except
by resubmission to the grand jury . . .''
Id. at 771. See also Stirone v. United States, 361 U.S. 212, 216
(1960); see also United States v. Lattimore, 215 F.2d 847 (D.C. Cir.
1954) (perjury count too vague to be valid cannot be cured even by bill
of particulars); United States v. Tonelli, 557 F.2d 194, 200 (3d Cir.
1978) (vacating perjury conviction where ``the indictment . . . did not
`set forth the precise falsehood[s] alleged' '').
Under the relevant case law, the two exhibited Articles present
paradigmatic examples of charges drafted too vaguely to enable the
accused to meet the accusations fairly. More than a century ago, the
Supreme Court stated that ``[i]t is an elementary principle of criminal
pleading, that where the definition of an offence, whether it be at
common law or by statute, includes generic terms, it is not sufficient
that the indictment shall charge the offence in the same generic terms
as in the definition; but it must state the species--it must descend to
particulars.'' United States v. Cruikshank, 92 U.S. 542, 558 (1875).
The Court has more recently emphasized the fundamental ``vice'' of
nonspecific indictments: that they ``fail[] to sufficiently apprise the
defendant `of what he must be prepared to meet.' '' Russell, 369 U.S.
at 764.
The Supreme Court emphasized in Russell that specificity is
important not only for the defendant, who needs particulars to prepare
a defense, but also for the decision-maker, ``so it may decide whether
[the facts] are sufficient in law to support a conviction, if one
should be had.'' Id. at 768 (internal citation and quotation marks
omitted). An unspecific indictment creates a ``moving target'' for the
defendant exposing the defendant to a risk of surprise through a change
in the prosecutor's theory. ``It enables his conviction to rest on one
point and the affirmance of the conviction to rest on another. It gives
the prosecution free hand on appeal to fill in the gaps of proof by
surmise and conjecture.'' Russell, 369 U.S. at 766. Ultimately, an
unspecific indictment creates a risk that ``a defendant could . . . be
convicted on the basis of facts not found by, and perhaps not even
presented to, the grand jury which indicted him.'' Id. at 770.
2. The Allegations of Both Articles Are Unconstitutionally Vague
Article I alleges that in his August 17, 1998 grand jury testimony,
President Clinton provided ``perjurious, false and misleading''
testimony to the grand jury concerning ``one or more'' of four subject
areas. Article I does not, however, set forth a single specific
statement by the President upon which its various allegations are
predicated. The Article haphazardly intermingles alleged criminal
conduct with totally lawful conduct, and its abstract generalizations
provide no guidance as to actual alleged perjurious statements.
Article I thus violates the most fundamental requirement of perjury
indictments. It is fatally vague in three distinct respects: (1) it
does not identify any statements that form the basis of its
allegations,\132\ (2) it therefore does not specify which of the
President's statements to the grand jury were allegedly ``perjurious,''
which were allegedly ``false,'' and which were allegedly
``misleading,'' and (3) it does not even specify the subject matter of
any alleged perjurious statement.
---------------------------------------------------------------------------
\132\ One of the cardinal rules of perjury cases is that ``[a]
conviction under 18 U.S.C. Sec. 1623 may not stand where the indictment
fails to set forth the precise falsehood alleged and the factual basis
of its falsity with sufficient clarity to permit a jury to determine
its verity and to allow meaningful judicial review of the materiality
of those falsehoods.'' United States v. Slawik, 548 F.2d 75, 83-84 (3d
Cir. 1977). Courts have vacated convictions for perjury in instances
where ``the indictment . . . did not `set forth the precise
falsehood(s) alleged.'' Tonelli, 577 F.2d at 200.
---------------------------------------------------------------------------
The first defect is fatal, because it is axiomatic that if the
precise perjurious statements are not identified in the indictment, a
defendant cannot possibly prepare his defense properly. See, e.g.,
Slawik, 548 F.2d 75, 83-84 (3d Cir. 1977). Indeed, in past impeachment
trials in the Senate where articles of impeachment alleged the making
of false statements, the false statements were specified in the
Articles. For example, in the impeachment trial of Alcee L. Hastings,
Articles of Impeachment II-XIV specified the exact statements that
formed the basis of the false statement allegations against Judge
Hastings.\133\ Similarly, in the impeachment trial of Walter L. Nixon,
Jr., Articles of Impeachment I-III specified the exact statements that
formed the basis of their false statement allegations.\134\ In this
case, Article I falls far short of specificity standards provided in
previous impeachment trials in the Senate.
---------------------------------------------------------------------------
\133\ Proceedings of the United States Senate in the Impeachment
Trial Alcee L. Hastings, 101st Cong., 1st. Sess., S. Doc. 101-18 at 4-7
(1989). See, e.g., Id. at 2 (Article II alleging that the false
statement was ``that Judge Hastings and Wiliam Borders, of Washington,
D.C., never made any agreement to solicit a bribe from defendants in
United States v. Romano, a case tried before Judge Hastings'').
\134\ Proceedings of the United States Senate in the Impeachment
Trial of Walter L. Nixon, Jr., 101st Cong., 1st Sess., S. Doc. 101-22
at 430-32 (1989). See, e.g., Id., at 432 (Article I alleging that the
false statement was ``Forrest County District Attorney Paul Holmes
never discussed the Drew Fairchild case with Judge Nixon.'').
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As to the second vagueness defect, there is a significant legal
difference between, on the one hand, statements under oath which are
``perjurious,'' and those, on the other hand, which are simply
``false'' or misleading.'' Only the former could form the basis of a
criminal charge. The Supreme Court has emphatically held that
``misleading'' statements alone cannot form the basis of a prejury
charge. In Bronston v. United States, 409 U.S. 352 (1973), the Court
held that literally true statements are by definition non-perjurious,
and ``it is no answer to say that here the jury found that [the
defendant] intended to mislead his examiner,'' since ``[a] jury should
not be permitted to enage in conjecture whether an unresponsive answer.
. . was intended to mislead or divert the examiner.'' Id. at 358-60
(emphasis added). The Court emphasized that ``the perjury statute is
not to be loosely construed, nor the statute invoked simply because a
wily witness succeeds in derailing the questioner so long as the
witness speakes the literal truth.'' Id. Thus, specification of the
exact statements alleged to be prejurious is required, because ``to
hold otherwise would permit the trial jury to inject its inferences
into the grand jury's indictment, and would allow defendants to be
convicted for immaterial falsehoods or for `intent to mislead' or
`perjury by implication,' which Bronston specifically prohibited.''
Slawik, 538 F.2d at 83-84 (emphasis added). Thus, if the House meant
that certain statements were misleading but literally truthful, they
might be subject to a motion to dismiss on the ground that the offense
was not impeachable.
The same is true for allegedly ``false'' answers, because it is
clear that mere ``false'' answers given under oath, without more, are
not criminal. 18 U.S.C. Sec. 1623, the statute proscribing perjury
before a federal grand jury, requires additional elements beyond
falsity, including the defendant's specific intent to testify falsely
and the statement's materiality to the proceeding. A defense to a
perjury charge is therefore tied directly to the specific statement
alleged to have been perjurious. Did the defendant know the particular
answer was false? Was it material? \135\
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\135\ Not surprisingly, courts have specifically held that because
of these additional elements (the lack of which may undermine a perjury
prosecution), a defendant must know exactly which statements are
alleged to form the basis of a perjury indictment to test whether the
requisite elements are present. See, e.g., United States v. Lattimore,
215 F.2d 847, 850 (D.C. Cir. 1954) (``The accused is entitled under the
Constitution to be advised as to every element in respect to which it
is necessary for him to prepare a defense''). For example, because of
the intent requirement, one potential defense to a perjury prosecution
is that the question to which the allegedly perjurious statement was
addressed was fundamentally ambiguous, as courts have held that
fundamentally ambiguous questions cannot as a matter of law produce
perjurious answers. See, e.g., Tonelli, 577 F.2d at 199; United States
v. Wall, 371 F.2d 398 (6th Cir. 1967). A separate defense to a perjury
prosecution is that the statement alleged to have been perjurious was
not material to the proceeding. Thus, ``false'' statements alone are
not perjurious if they were not material to the proceeding. By not
specifying which statements are alleged to be ``false'' or
``misleading,'' Article I precludes the President from preparing a
materiality defense, and it also fails to distinguish allegedly
criminal conduct from purely lawful conduct. As one court explained,
``It is to be observed that * * * it is not sufficient to
constitute the offense that the oath shall be merely false, but that it
must be false in some `material matter.' Applying that definition to
the facts stated in either count of this indictment, and it would seem
that there is an entire lack in any essential sense to disclose that
the particulars as to which the oath is alleged to have been false were
material in the essential sense required for purposes of an indictment
for this offense.'' (United States v. Cameron, 282 F. 684, 692 (D.
Ariz. 1922).).
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Article I's third vagueness defect is that it does not specify the
subject matter of the alleged perjurious statements. Instead, it simply
alleges that the unspecified statements by the President to the grand
jury were concerning ``one or more'' of four enumerated areas. The
``one or more'' language underscores the reality that the President--
and, critically, the Senate--cannot possibly know what the House
majority had in mind, since it may have failed even to agree on the
subject matter of the alleged perjury. The paramount importance of this
issue may be seen by reference to court decisions holding that a jury
has to ``unanimously agree that a particular statement contained in the
indictment was falsely made.'' United States v. Fawley, 137 F.3d 458,
471 (7th Cir. 1998) (emphasis added); see also discussion of unanimity
requirement in Section VI.B, supra.
Article II is also unconstitutionally vague. It alleges that the
President ``obstructed and impeded the administration of justice * * *
in a course of conduct or scheme designed to delay, impede, cover up
and conceal'' unspecified evidence and testimony in the Jones case. It
sets forth seven instances in which the President allegedly
``encouraged'' false testimony or the concealment of evidence, or
``corruptly influenced'' or ``corruptly prevented'' various other
testimony, also unspecified. In fact, not only does Article II fail to
identify a single specific act performed by the President in this
alleged scheme to obstruct justice, it does not even identify the
``potential witnesses'' whose testimony the President allegedly sought
to ``corruptly influence.''
The President cannot properly defend against Article II without
knowing, at a minimum, which specific acts of obstruction and/or
concealment he is alleged to have performed, and which ``potential
witnesses'' he is alleged to have attempted to influence. For example,
it is clear that, in order to violate the federal omnibus obstruction
of justice statute, 18 U.S.C. Sec. 1503, an accuser must prove that
there was a pending judicial proceeding, that the defendant knew of the
proceeding, and that the defendant acted ``corruptly'' with the
specific intent to obstruct or interfere with the proceeding or due
administration of justice. See, e.g., United States v. Bucey, 876 F.2d
1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380,
1383-84 (D.D.C. 1990). Without knowing which ``potential witnesses'' he
is alleged to have attempted to influence, and the precise manner in
which he is alleged to have attempted to obstruct justice, the
President cannot prepare a defense that would address the elements of
the offense with which he has been charged--that he had no intent to
obstruct, that there was no pending proceeding, or that the person
involved was not a potential witness.
It follows that the requisite vote of two-thirds of the Senate
required by the Constitution cannot possibly be obtained if there are
no specific statements whatsoever alleged to be perjurious, false or
misleading in Article I or no specific acts of obstruction alleged in
Article II. Different Senators might decide that different statements
or different acts were unlawful without any concurrence by two-thirds
of the Senate as to any particular statement or act. Such a scenario is
antithetical to the Constitution's due process guarantee of notice of
specific and definite charges and it threatens conviction upon vague
and uncertain grounds. As currently framed, neither Article I nor
Article II provides a sufficient basis for the President to prepare a
defense to the unspecified charges upon which the Senate may vote, or
an adequate basis for actual adjudication.
d. the senate's judgment will be final and that judgment must speak
clearly and intelligibly
An American impeachment trial is not a parliamentary inquiry into
fitness for office. It is not a vote of no confidence. It is not a
mechanism whereby a legislative majority may oust a President from a
rival party on political grounds. To the contrary, because the
President has a limited term of office and can be turned out in the
course of ordinary electoral processes, a Presidential impeachment
trial is a constitutional measure of last resort designed to protect
the Republic.
This Senate is therefore vested with an extremely grave
Constitutional task: a decision whether to remove the President for the
protection of the people themselves. In the Senate's hands there rests
not only the fate of one man, but the integrity of our Constitution and
our democratic process.
Fidelity to the Constitution and fidelity to the electorate must
converge in the impeachment trial vote. If the Senate is to give
meaning to the Constitution's command, any vote on removal must be a
vote on one or more specifically and separately identified ``high
Crimes and Misdemeanors,'' as set forth in properly drafted impeachment
articles approved by the House. If the people are to have their twice-
elected President removed by an act of the Senate, that act must be
intelligible. It must be explainable and justifiable to the people who
first chose the President and then chose him again. The Senate must
ensure that it has satisfied the Constitution's requirement of a
genuine two-thirds concurrence that specific, identified wrongdoing has
been proven. The Senate must also assure the people, through the sole
collective act the Senate is required to take, that its decision has a
readily discernible and unequivocal meaning.
As matters stand, the Senate will vote on two highly complex
Articles of Impeachment. Its vote will not be shaped by narrowing
instructions. Its rules preclude a vote on divisible parts of the
articles. There will be no judicial review, no correction of error, and
no possibility of retrial. The Senate's decision will be as conclusive
as any known to our law--judicially, politically, historically, and
most literally, irrevocable.
Under such circumstances, the Senate's judgment must speak clearly
and intelligibly. That cannot happen if the Senate votes for conviction
on these articles. Their compound structure and lack of specificity
make genuine agreement as to specific wrongs impossible, and those
factors completely prevent the electorate from understanding why the
Senate as a whole voted as it did. As formulated, these articles
satisfy neither the plain requirement of the Constitution nor the
rightful expectations of the American people. The articles cannot
support a constitutionally sound vote for conviction.
VII. The Need for Discovery
The Senate need not address the issue of discovery at this time,
but because the issue may arise at a later date, it is appropriate to
remark here on its present status. Senate Resolution 16 provides that
the record for purposes of the presentation by the House Managers and
the President is the public record established in the House of
Representatives.\136\ Since this record was created by the House itself
and is ostensibly the basis for the House's impeachment vote, and
because this evidence has been publicly identified and available for
scrutiny, comment, and rebuttal, it is both logical and fair that this
be the basis for any action by the Senate. Moreover, Senate Resolution
16 explicitly prohibits the President and the House Managers from
filing at this time any ``motions to subpoena witnesses or to present
any evidence not in the record.''
---------------------------------------------------------------------------
\136\ S. Res. 16 defined the record for the presentations as
``those publicly available materials that have been 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 House Judiciary Committee pursuant to House
Resolutions 525 and 581.''
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In the event, however, that the Senate should later decide,
pursuant to the provisions of Senate Resolution 16, to allow the House
Managers to expand the record in some way, our position should be
absolutely clear. At such time, the President would have an urgent need
for the discovery of relevant evidence, because at no point in these
proceedings has he been able to subpoena documents or summon and cross-
examine witnesses. He would need to use the compulsory process
authorized by Senate Impeachment Rules V and VI\137\ to obtain
documentary evidence and witness depositions. While the President has
access to some of the grand jury transcripts and FBI interview
memoranda of witnesses called by the OIC, the President's own lawyers
were not entitled to be present when these witnesses were examined. The
grand jury has historically been the engine of the prosecution, and it
was used in that fashion in this case. The OIC sought discovery of
evidence with the single goal of documenting facts that it believed
were prejudicial to the President. It did not examine witnesses with a
view toward establishing there was no justification for impeachment; it
did not follow up obvious leads when they might result in evidence
helpful to the President; and it did not seek out and document
exculpatory evidence. It did not undertake to disclose exculpatory
information it might have identified.
---------------------------------------------------------------------------
\137\ Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials (Senate Manual 99-2, as revised by S. Res. 479 (Aug.
16, 1986)). There is ample precedent for liberal discovery in Senate
impeachment trials. For example, in the trial of Judge Alcee Hastings,
the Senate issued numerous orders addressing a range of pretrial issues
over several months including:
requiring the parties to provide witness lists along with
a description of the general nature of the testimony that was expected
from each witness months in advance of the scheduled evidentiary
hearing;
requiring the House Managers to turn over exculpatory
materials, certain prior statements of witnesses, and documents and
other tangible evidence they intended to introduce into evidence;
requiring the production from the House Managers of other
documents in the interest of allowing the Senate to develop ``a record
that fully illuminates the matters that it must consider in rendering a
judgment;''
setting a briefing schedule for stipulations of facts and
documents;
setting a number of pretrial conferences;
designating a date for final pretrial statements; and
permitting a number of pre-trial depositions.
Report of the Senate Impeachment Trial Committee on the
Articles of Impeachment Against Judge Alcee L. Hastings, Hearings
Before the Senate Impeachment Trial Committee, 101st Cong. 1st Sess. at
281, 286-87, 342-43, 606-07, 740.
The need for discovery in this case is in fact greater than in
prior impeachment proceedings. In all other impeachment trials, there
were either substantive investigations by the House or prior judicial
proceedings in which the accused had a full opportunity to develop the
evidentiary record and cross-examine witnesses. See Id. at 163-64
(pretrial memorandum of Judge Hastings).
---------------------------------------------------------------------------
Nor did the House of Representatives afford the President any
discovery mechanisms to secure evidence that might be helpful in his
defense. Indeed, the House called no fact witnesses at all, and at the
few depositions it conducted, counsel for the President were excluded.
Moreover, the House made available only a selected portion of the
evidence it received from the OIC. While it published five volumes of
the OIC materials (two volumes of appendices and three volumes of
supplements), it withheld a great amount of evidence, and it denied
counsel for the President access to this material. It is unclear what
the criterion was for selecting evidence to include in the published
volumes, but there does not appear to have been an attempt to include
all evidence that may have been relevant to the President's defense.
The President has not had access to a great deal of evidence in the
possession of (for example) the House of Representatives and the OIC
which may be exculpatory or relevant to the credibility of witnesses on
whom the OIC and the House Managers rely.
Should the Senate decide to authorize the House Managers to call
witnesses or expand the record, the President would be faced with a
critical need for the discovery of evidence useful to his defense--
evidence which would routinely be available to any civil litigant
involved in a garden-variety automobile accident case. The House
Managers have had in their possession or had access at the OIC to
significant amounts of non-public evidence, and they have frequently
stated their intention to make use of such evidence. Obviously, in
order to defend against such tactics, counsel for the President are
entitled to discovery and a fair opportunity to test the veracity and
reliability of this ``evidence,'' using compulsory process as necessary
to obtain testimony and documents. Trial by surprise obviously has no
place in the Senate of the United States where the issues in the
balance is the removal of the one political leader who, with the Vice-
President, is elected by all the citizens of this country.\138\
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\138\ In another context, the Supreme Court has observed that ``the
ends of justice will best be served by a system of liberal discovery
which gives both parties the maximum possible amount of information
from which to prepare their cases and thereby reduces the possibility
of surprise at trial.'' Wardius v. Oregon, 412 U.S. 470, 473 (1973).
---------------------------------------------------------------------------
The need for discovery does not turn on the number of witnesses the
House Managers may be authorized to depose.\139\ If the House Managers
call a single witness, that will initiate a process that leaves the
President potentially unprepared and unable to defend adequately
without proper discovery. The sequence of discovery is critical. The
President first needs to obtain and review relevant documentary
evidence not now in his possession. He then needs to be able to depose
potentially helpful witnesses, whose identity may only emerge from the
documents and from the depositions themselves. Obviously, he also needs
to depose potential witnesses identified by the House Managers. Only at
that point will the President be able intelligently to designate his
own trial witnesses. This is both a logical procedure and one which is
the product of long experience designed to maximize the search for
truth and minimize unfair surprise. There is no conceivable reason it
should not be followed here--if the evidentiary record is opened.
---------------------------------------------------------------------------
\139\ It is not sufficient that counsel for the President have the
right to depose the witnesses called by the Managers, essential as that
right is. The testimony of a single witness may have to be refuted
indirectly, circumstantially, or by a number of witnesses; it is often
necessary to depose several witnesses in order to identify the one or
two best.
---------------------------------------------------------------------------
Indeed, it is simply impossible to ascertain how a witness
designated by the House Managers could fairly be rebutted without a
full examination of the available evidence. It is also the case that
many sorts of helpful evidence and testimony emerge in the discovery
process that may at first blush appear irrelevant or tangential. In any
event, the normal adversarial process is the best guarantor of the
truth. The President needs discovery here not simply to obtain evidence
to present a trial but also in order to make an informed judgment about
what to introduce in response to the Managers' expanded case. The
President's counsel must be able to make a properly knowledgeable
decision about what evidence may be relevant and helpful to the
President's defense, both in cross-examination and during the
President's own case.
The consequences of an impeachment trial are immeasurably grave:
The removal of a twice-elected President. Particularly given what is at
stake, fundamental fairness dictates that the President be given at
least the same right as an ordinary litigant to obtain evidence
necessary for his defense, particularly when a great deal of that
evidence is presently in the hands of his accusers, the OIC and the
House Managers. The Senate has wisely elected to proceed on the public
record established by the House of Representatives, and this provides a
wholly adequate basis for Senate decision-making. In the event the
Senate should choose to expand this record, affording the President
adequate discovery is absolutely essential.
VIII. Conclusion
As the Senate considers these Articles of Impeachment and listens
to the arguments, individual Senators are standing in the place of the
Framers of the Constitution, who prayed that the power of impeachment
and removal of a President would be invoked only in the gravest of
circumstances, when the stability of our system of government hung in
the balance--to protect the Republic itself from efforts to subvert our
Constitutional system.
The Senate has an obligation to turn away an unwise and unwarranted
misuse of the awesome power of impeachment. If the Senate removes this
President for a wrongful relationship he hoped to keep private, for
what will the House ask the Senate to remove the next President, and
the next? Our Framers wisely gave us a constitutional system of checks
and balances, with three co-equal branches. Removing this President on
these facts would substantially alter the delicate constitutional
balance, and move us closer to a quasi-parliamentary system, in which
the President is elected to office by the choice of people, but
continues in office only at the pleasure of Congress.
In weighing the evidence and assessing the facts, we ask that
Senators consider not only the intent of the Framers but also the will
and interests of the people. It is the citizens of these United States
who will be affected by and stand in judgment of this process. It is
not simply the President--but the vote the American people rendered in
schools, church halls and other civic centers all across the land
twenty-six months ago--that is hanging in the balance.
Respectfully submitted.
David E. Kendall Charles F.C. Ruff
Nicole K. Seligman Gregory B. Craig
Emmet T. Flood Bruce R. Lindsey
Max Stier Cheryl D. Mills
Alicia L. Marti Lanny A. Breuer
Williams & Connolly Office of the White House Counsel
725 12th Street, N.W. The White House
Washington, D.C. 20005 Washington, D.C. 20502
January 13, 1999.
______
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER OF PRESIDENT
WILLIAM JEFFERSON CLINTON TO THE ARTICLES OF IMPEACHMENT
The House of Representatives, through its Managers and counsel,
replies to the Answer of President William Jefferson Clinton to the
Articles of Impeachment (``Answer''), as follows:
Preamble
The House of Representatives denies each and every material
allegation in the Preamble to the Answer, including the sections
entitled ``The Charges in the Articles Do Not Constitute High Crimes or
Misdemeanors'' and ``The President Did Not Commit Perjury or Obstruct
Justice.'' With respect to the allegations in the Preamble, the House
of Representatives further states that each and every allegation in
Articles I and II is true and that Articles I and II properly state
impeachable offenses, are not subject to a motion to dismiss, and
should be considered and adjudicated by the Senate sitting as a Court
of Impeachment.
Article I
The House of Representatives denies each and every allegation in
the Answer to Article I that denies the acts, knowledge, intent, or
wrongful conduct charged against President William Jefferson Clinton.
With respect to the allegations in the Answer to Article I, the House
of Representatives further states that each and every allegation in
Article I is true and that Article I properly states an impeachable
offense, is not subject to a motion to dismiss, and should be
considered and adjudicated by the Senate sitting as a Court of
Impeachment.
First Affirmative Defense to Article I
The House of Representatives denies each and every material
allegation in this purported defense. The House of Representatives
further states that Article I properly states an impeachable offense,
is not subject to a motion to dismiss, and should be considered and
adjudicated by the Senate sitting as a Court of Impeachment. The House
of Representatives further states that the offense stated in Article I
warrants the conviction, removal from office, and disqualification from
holding further office of President William Jefferson Clinton.
Second Affirmative Defense to Article I
The House of Representatives denies each and every material
allegation in this purported defense. The House of Representatives
further states that Article I properly states an impeachable offense,
is not subject to a motion to dismiss, and should be considered and
adjudicated by the Senate sitting as a Court of Impeachment. The House
of Representatives further states that Article I is not
unconstitutionally vague, and it provides President William Jefferson
Clinton adequate notice of the offense charged against him.
Third Affirmative Defense to Article I
The House of Representatives denies each and every material
allegation in this purported defense. The House of Representatives
further states that Article I properly states an impeachable offense,
is not subject to a motion to dismiss, and should be considered and
adjudicated by the Senate sitting as a Court of Impeachment. The House
of Representatives further states that Article I does not charge
multiple offenses in one article.
Article II
The House of Representatives denies each and every allegation in
the Answer to Article II that denies the acts, knowledge, intent, or
wrongful conduct charged against President William Jefferson Clinton.
With respect to the allegations in the Answer to Article II, the House
of Representatives further states that each and every allegation in
Article II is true and that Article II properly states an impeachable
offense, is not subject to a motion to dismiss, and should be
considered and adjudicated by the Senate sitting as a Court of
Impeachment.
First Affirmative Defense to Article II
The House of Representatives denies each and every material
allegation in this purported defense. The House of Representatives
further states that Article II properly states an impeachable offense,
is not subject to a motion to dismiss, and should be considered and
adjudicated by the Senate sitting as a Court of Impeachment. The House
of Representatives further states that the offense stated in Article II
warrants the conviction, removal from office, and disqualification from
holding further office of President William Jefferson Clinton.
Second Affirmative Defense to Article II
The House of Representatives denies each and every material
allegation in this purported defense. The House of Representatives
further states that Article II properly states an impeachable offense,
is not subject to a motion to dismiss, and should be considered and
adjudicated by the Senate sitting as a Court of Impeachment. The House
of Representatives further states that Article II is not
unconstitutionally vague, and it provides President William Jefferson
Clinton adequate notice of the offense charged against him.
Third Affirmative Defense to Article II
The House of Representatives denies each and every material
allegation in this purported defense. The House of Representatives
further states that Article II properly states an impeachable offense,
is not subject to a motion to dismiss, and should be considered and
adjudicated by the Senate sitting as a Court of Impeachment. The House
of Representatives further states that Article II does not charge
multiple offenses in one article.
Conclusion of the House of Representatives
The House of Representatives further states that it denies each and
every material allegation of the Answer not specifically admitted in
this Replication. By providing this Replication to the Answer, the
House of Representatives waives none of its rights in this proceeding.
Wherefore, the House of Representatives states that both of the
Articles of Impeachment warrant the conviction, removal from office,
and disqualification from holding further office of President William
Jefferson Clinton. Both of the Articles should be considered and
adjudicated by the Senate.
Respectfully submitted,
The United States House of Representatives.
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham,
Managers on the Part of the House.
Thomas E. Mooney,
General Counsel.
David P. Schippers,
Chief Investigative Counsel.
______
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
REPLY OF THE UNITED STATES HOUSE OF REPRESENTATIVES TO THE TRIAL
MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON
I. Introduction
The President's Trial Memorandum contains numerous factual
inaccuracies and misstatements of the governing law and the Senate's
precedents. These errors have largely been addressed in the Trial
Memorandum of the House of Representatives filed with the Senate on
January 11, 1999, and given the 24-hour period to file this reply, the
House cannot possibly address them all here. The House of
Representatives will address them further in its oral presentation to
the Senate, and it reserves the right to address these matters further
in the briefing of any relevant motions. However, President Clinton has
raised some new issues in his Trial Memorandum, and the House of
Representatives hereby replies to those issues.
II. Facts
The President's Trial Memorandum outlines what he claims are facts
showing that he did not commit perjury before the grand jury and did
not obstruct justice. The factual issues President Clinton raises are
addressed in detail in the Trial Memorandum of the House.
A complete and impartial review of the evidence reveals that the
President did in fact commit perjury before the grand jury and that he
obstructed justice during the Jones litigation and the grand jury
investigation as alleged in the articles of impeachment passed by the
House of Representatives. The House believes a review of the complete
record, including the full grand jury and deposition testimony of the
key witnesses in this case, will establish that.
The evidence which President Clinton claims demonstrates that he
did not commit the offenses outlined in the Articles of Impeachment are
cited in Sections IV and V of his Memorandum. Regarding Article I,
President Clinton maintains that his testimony before the grand jury
was entirely truthful. At the outset of his argument, he states that he
told the truth about the nature and details of his relationship with
Ms. Lewinsky, and he insists that any false impressions that his
deposition testimony might have created were remedied by his admission
of ``improper intimate contact'' with Ms. Lewinsky. However, his
subsequent testimony demonstrates that this admission is narrowly
tailored to mean that Ms. Lewinsky had ``sexual relations'' with him,
but he did not have ``sexual relations'' with her, as he understood the
term to be defined. In other words, he admitted only what he knew could
be conclusively established through scientific tests. He denied what
the testimony of Ms. Lewinsky, the testimony of a number of her
confidantes, and common sense proves: that while she engaged in sexual
relations with him, he engaged in sexual relations with her, regardless
of how President Clinton attempts to redefine the term.
Following this pattern, President Clinton discounts substantial
evidence as well as common sense when he maintains that he testified
truthfully in the grand jury about, among other things, his prior
deposition testimony, his attorney's statements to Judge Wright during
his deposition, and his intent in providing a series of false
statements to his secretary after his deposition. Again, a complete
review of the record and witness testimony reveals that President
Clinton committed perjury numerous times in his grand jury testimony.
In regard to Article II, President Clinton extracts numerous items
of evidence from the record and analyzes them in isolation in an effort
to provide innocent explanations for the substantial amount of
circumstantial evidence proving his guilt. Yet when the record is
viewed in its entirety, including the portions of President Clinton's
deposition testimony concerning Ms. Lewinsky and his grant jury
testimony, it demonstrates that President Clinton took a number of
actions designed to prevent Paula Jones's attorneys, the federal
district court, and a federal grand jury from learning the truth. These
actions are described in detail in the Trial Memorandum of the House.
To the extent that President Clinton's Trial Memorandum raises
issues of credibility, those issues are best resolved by live testimony
subject to cross-examination. The Senate, weighing the evidence in its
entirety, will make an independent assessment of the facts as they are
presented, and a detailed, point-by-point argument of these matters is
best resolved on the Senate floor. The House is confident that a
thorough factual analysis will not only refute President Clinton's
contentions, but will prove the very serious charges contained in the
articles.
III. The Articles Properly State Removal Offenses
a. the offenses alleged are high crimes and misdemeanors
1. The Senate Has Never Exercised Its Power To Dismiss an Article of
Impeachment Except When the Official Impeached Has Resigned
The House acknowledges that the Senate has the power to dismiss an
article of impeachment on the ground that it does not state a removable
offense. Beyond that, however, President Clinton completely ignores the
Senate's precedents concerning the use of that power. In the fifteen
cases in which the House has forwarded articles of impeachment to the
Senate, the Senate has never granted a dispositive motion to preclude a
trial on the articles with one exception. In the 1926 case of Judge
George English, the Senate granted a motion to adjourn after Judge
English resigned from office making a trial moot on the issue of
removal. See Impeachment of George W. English, U.S. District Judge,
Eastern District of Illinois, 68 Cong. Rec. 347-48 (1926). The Senate
also granted a motion to adjourn in the 1868 trial of President Andrew
Johnson, but only after a full trial and votes to acquit on three
articles. III Cannon's Precedents of the House of Representatives
Sec. 2443.
In addition, the Senate has never granted a motion to dismiss or
strike an article of impeachment. However, in the 1936 case of Judge
Halsted Ritter, the House managers themselves moved to strike two
counts of a multi-count article to simplify the trial, and the motion
was granted. 80 Cong. Rec. 4898-99 (April 3, 1936). However, the
remainder of the article was fully considered, and Judge Ritter was
convicted on that article. The House managers in the 1986 Judge Harry
Claiborne case made the only motion for summary judgment in the history
of impeachment. Hearings of the Senate Impeachment Trial Committee
(Judge Harry Claiborne), 99th Cong., 2d Sess. 145 (1986). They did so
on the basis that Judge Claiborne had already been convicted of the
charges in a criminal trial. Id. The Senate postponed a decision on the
motion and never ruled on it, but it ultimately convicted Judge
Claiborne. In short, the Senate precedents firmly establish that the
Senate has always fulfilled its responsibility to give a full and fair
hearing to articles of impeachment voted by the House of
Representatives.
2. The Constitutional Text Sets One Clear Standard for Removal
a. There is Only One Impeachment Standard
The Constitution sets one clear standard for impeachment,
conviction, and removal from office: the commission of ``Treason,
Bribery, or other high Crimes and Misdemeanors.'' U.S. Const. art. II,
Sec. 4. The Senate has repeatedly determined that perjury is a high
crime and misdemeanor. Simple logic dictates that obstruction of
justice which has the same effect as perjury and bribery of witnesses
must also be a high crime and misdemeanor. Endless repetition of the
claim that this standard is a high one does not change the standard.
President Clinton claims that to remove him on these articles would
permanently disfigure and diminish the Presidency and mangle the system
of checks and balances. President's Trial Memorandum at 18. Quite the
contrary, however, it is President Clinton's behavior as set forth in
the articles that has had these effects. Essentially, President Clinton
argues that the Presidency and the system of checks and balances can
only be saved if we allow the President to commit felonies with
impunity. To state that proposition is to refute it. Convicting him and
thereby reaffirming that criminal behavior that strikes at the heart of
the justice system will result in removal will serve to strengthen the
Presidency, not weaken it.
b. Impeachment and Removal Are Appropriate for High Crimes
and Misdemeanors Regardless of Whether They Are
Offenses Against the System of Government
President Clinton argues that impeachment may only be used to
redress wrongful public misconduct. The point is academic. Perjury and
obstruction of justice as set forth in the articles are, by definition,
public misconduct. See generally House Trial Memorandum at 107-12.
Indeed, it is precisely their public nature that makes them offenses--
acts that are not crimes when committed outside the judicial realm
become crimes when they enter that realm. Lying to one's spouse about
an extramarital affair, although immoral, is not a crime. Telling the
same lie under oath in a judicial proceeding is a crime. Hiding gifts
given to an adulterous lover to conceal the affair, although immoral,
is not a crime. When those gifts become potential evidence in a
judicial proceeding, the same act becomes a crime. One who has
committed these kinds of crimes that corrupt the judicial system simply
is not fit to serve as the nation's chief law enforcement officer.
Apart from that, the notion that high crimes and misdemeanors
encompass only public misconduct will not bear scrutiny. Numerous
``private'' crimes would obviously require the removal of a President.
For example, if he killed his wife in a domestic dispute or molested a
child, no one would seriously argue that he could not be removed. All
of these acts violate the President's unique responsibility to take
care that the laws be faithfully executed.
3. President Clinton Cites Precedents That Do Not Apply Rather Than
Relying on the Senate's Own Precedents Clearly Establishing
Perjury as a Removable Offense
a. President Clinton Continues To Misrepresent the
Fraudulent Tax Return Allegation Against President
Nixon
In his trial memorandum, President Clinton argues that the failure
in 1974 of the House Judiciary Committee to adopt an article of
impeachment against President Nixon for tax fraud supports the claim
that current charges against President Clinton do not rise to the level
of impeachable and removable offenses. President's Trial Memorandum at
21. The President's lawyers acknowledge the charge in the article
against President Nixon of ``knowingly and fraudulently failed to
report certain income and claimed deductions [for 1969-72] on his
Federal income tax returns which were not authorized by law.'' Id. The
President's lawyers go on to state that ``[t]he President had signed
his returns for those years under penalty of perjury,'' Id., trying to
distinguish away the Claiborne impeachment and removal precedent from
1986, and by extension all the judicial impeachments from the 1980s
which clearly establish perjury as an impeachable and removable
offense.
President Clinton's argument that a President was not and should
not be impeached for tax fraud because it does not involve official
conduct or abuse of presidential powers simply is unfounded based on
the 1974 impeachment proceedings against President Nixon. Moreover, the
fact that the President and his lawyers make this argument in defense
of the President is telling. He effectively claims that a large scale
tax cheat could be a viable chief executive.
It is undisputed that the Judiciary Committee rejected the proposed
tax fraud article against President Nixon by a vote of 26 to 12. A slim
minority of Committee members stated the view that tax fraud would not
be an impeachable offense. That minority view is illustrated by the
comments of Rep. Waldie that in the tax fraud article there was ``not
an abuse of power sufficient to warrant impeachment. . . .'' Debate on
Article of Impeachment 1974: Hearings of the Comm. on the Judiciary
Pursuant H. Res. 803, 93rd Cong., 2nd Sess., at 548 (1974) (Statement
of Rep. Waldie). Similar views were expressed by Rep. Hogan and Rep.
Mayne. Rep. Railsback took the position that there was ``a serious
question,'' id. at 524 (Statement of Rep. Railsback), whether
misconduct of the President in connection with his taxes would be
impeachable.
Other members who opposed the tax fraud article based their
opposition on somewhat different grounds. Rep. Thornton based his
opposition to the tax fraud article on the ``view that these charges
may be reached in due course in the regular process of law.'' Id. at
549 (Statement of Rep. Thornton). Rep. Butler stated his view that the
tax fraud article should be rejected on prudential grounds: ``Sound
judgment would indicate that we not add this article to the trial
burden we already have.'' Id. at 550 (Statement of Rep. Butler).
The record is clear, however, that the overwhelming majority of
those who expressed a view in the debate in opposition to the tax fraud
article based their opposition on the insufficiency of the evidence,
and not on the view that tax fraud, if proven, would not be an
impeachable offense.
The comments of then-Rep. Wayne Owens in the debate in 1974
directly contradict the view that Mr. Owens has expressed in recent
testimony before the House Judiciary Committee. Although Mr. Owens in
1974 expressed his ``belief'' that President Nixon was guilty of
misconduct in connection with his taxes, he clearly stated his
conclusion that ``on the evidence available'' Mr. Nixon's offenses were
not impeachable. Id. at 549 (Statement of Rep. Owens). Mr. Owens spoke
of the need for ``hard evidence'' and discussed his unavailing efforts
to obtain additional evidence that would tie ``the President to the
fraudulent deed'' or that would otherwise ``close the inferential gap
that has to be closed in order to charge the President.'' Id. He
concluded his comments in the 1974 debate by urging the members of the
Committee ``to reject this article . . . based on that lack of
evidence.'' Id.
In addition to Mr. Owens, eleven members of the Committee stated
the view that there was not sufficient evidence of tax fraud to support
the article against President Nixon. Wiggins: ``fraud . . . is wholly
unsupported in the evidence.'' Id. at 524 (Statement of Rep. Wiggins).
McClory: ``no substantial evidence of any tax fraud.'' Id. at 531
(Statement of Rep. McClory). Sandman: ``There was absolutely no intent
to defraud here.'' Id. at 532 (Statement of Rep. Sandman). Lott: ``mere
mistakes or negligence by the President in filing his tax returns
should clearly not be grounds for impeachment.'' Id. at 533 (Statement
of Rep. Lott). Maraziti: discussing absence of evidence of fraud. Id.
at 534 (Statement of Rep. Maraziti). Dennis: ``no fraud has been
found.'' Id. at 538 (Statement of Rep. Dennis). Cohen: questioning
whether ``in fact there was criminal fraud involved.'' Id. at 548
(Statement of Rep. Cohen). Hungate: ``I think there is a case here but
in my judgment I am having trouble deciding if it has as yet been
made.'' Id. at 553 (statement of Rep. Hungate). Latta: only ``bad
judgment and gross negligence.'' Id. at 554 (Statement of Rep. Latta).
Fish: ``There is not to be found before us evidence that the President
acted wilfully to evade his taxes.'' Id. at 556 (Statement of Rep.
Fish). Moorhead: ``there is no showing that President Nixon in any way
engaged in any fraud.'' Id. at 557 (Statement of Rep. Moorhead).
The group of those who found the evidence insufficient included
moderate Democrats like Rep. Hungate and Rep. Owens, as well as
Republicans like Rep. Fish, Rep. Cohen, and Rep. McClory, all of whom
supported the impeachment of President Nixon.
In light of all these facts, it is not credible to assert that the
House Judiciary Committee in 1974 determined that tax fraud by the
President would not be an impeachable offense. The failure of the
Committee to adopt the tax fraud article against President Nixon simply
does not support the claim of President Clinton's lawyers that the
offenses charged against him do not rise to the level of impeachable
offenses.
In the Committee debate in 1974 a compelling case was made that tax
fraud by a President--if proven by sufficient evidence--would be an
impeachable offense. Rep. Brooks, who later served as chairman of the
Committee, said:
``No man in America can be above the law. It is our duty to
establish now that evidence of specific statutory crimes and
constitutional violations by the President of the United States will
subject all Presidents now and in the future to impeachment.
* * * * * * *
``No President is exempt under our U.S. Constitution and the laws
of the United States from accountability for personal misdeeds any more
than he is for official misdeeds. And I think that we on this Committee
in our effort to fairly evaluate the President's activities must show
the American people that all men are treated equally under the law.''
(Debate on Articles of Impeachment, 1974: Hearings of the Comm. on the
Judiciary Pursuant to H. Res. 803, 93rd Cong., 2nd Sess., at 525, 554.)
Professor Charles Black stated it succinctly: ``A large-scale tax
cheat is not a viable chief magistrate.'' Charles Black, Impeachment: A
Handbook, (Yale University Press, 1974) at 42. What is true of tax
fraud is also true of a persistent pattern of perjury by the President.
An incorrigible perjurer is not a viable chief magistrate.
b. President Clinton Continues to Misrepresent The
Allegations Against Alexander Hamilton
President Clinton continues to try to persuade the American public
that the House of Representatives has impeached him for having an
extramarital affair. See Answer of President William Jefferson Clinton
to the Articles of Impeachment at 1 (``The charges in the two Articles
of Impeachment do not permit the conviction and removal from office of
a duly elected President. The President has acknowledged conduct with
Ms. Lewinsky that was improper.'') (emphasis added). In doing so, the
President's lawyers refer to an incident involving then Secretary of
the Treasury Alexander Hamilton being blackmailed by the husband of a
woman named Maria Reynolds with whom he was having an adulterous
affair. However, the President's lawyers omit the relevant
distinguishing facts even as they cast aspersions upon Alexander
Hamilton: none of Hamilton's ``efforts'' to cover up his affair
involved the violation of any laws, let alone felonies. Indeed, the
fact of the matter is that Hamilton was the victim of the crime of
extortion.
Never did Hamilton raise his right hand to take a sacred oath and
then willfully betray that oath and the rule of law to commit perjury.
Never did Alexander Hamilton obstruct justice by tampering with
witnesses, urging potential witnesses to sign false affidavits, or
attempt to conceal evidence from a Federal criminal grand jury.
Again, the significance of the distinctions are glaringly obvious:
it is apparent from the Hamilton case that the Framers did not regard
private sexual misconduct as an impeachable offense. It is also
apparent that efforts to cover up such private behavior outside of a
legal setting, including even paying hush money to induce someone to
destroy documents, did not meet the standard. Neither Hamilton's high
position, nor the fact that his payments to a securities swindler
created an enormous appearance problem, were enough to implicate the
standard. These wrongs were real, and they were not insubstantial, but
to the Framers they were essentially private and therefore not
impeachable. David Frum, ``Smearing Alexander Hamilton,'' The Weekly
Standard (Oct. 19, 1998) at 14.
But the Alexander Hamilton incident President Clinton cites
actually clarifies the precise point at which personal misconduct
becomes a public offense. Hamilton could keep his secret only by a
betrayal of public responsibilities. Hamilton came to that point and,
at immense personal cost, refused to cross the line. President Clinton
came to that point and, fully understanding what he was doing,
knowingly charged across the line. President Clinton's public acts of
perjury and obstruction of justice transformed a personal misconduct
into a public offense.
4. The Views of the Prominent Historians and Legal Scholars the
President Cites Do Not Stand Up to Careful Scrutiny
It speaks volumes that the most distinguished of the 400 historians
referred to in President Clinton's trial brief is Arthur Schlesinger,
Jr. Professor Schlesinger had a different view of impeachment 25 years
ago. President Clinton himself asserts that ``the allegations are so
far removed from official wrongdoing that their assertion here
threatens to weaken significantly the Presidency itself.'' President's
Trial Memorandum at 24. However, Schlesinger has written that:
``The genius of impeachment lay in the fact that it could punish
the man without [ ] punishing the office. For, in the Presidency as
elsewhere, power was ambiguous: the power to [do] good meant also the
power to do harm, the power to serve the republic also the power to
demand and defile it.''
(Arthur Schlesinger, Jr., The Imperial Presidency, (Easton Press edit.
1973) (hereinafter ``Schlesinger'') at 415.)
The statement of the 400 historians cited with approval in the
President's trial memorandum makes the following statement: ``[t]he
Framers explicitly reserved that step for high crimes and misdemeanors
in the exercise of executive power.'' Statement of Historians in
Defense of the Constitution, The New York Times (Oct. 30, 1998) at A15.
The 400 historians then believe that commission of a murder or rape by
the President of the United States in his personal capacity is not
subject to the impeachment power of Article II, Section 4.
President Clinton in his trial memorandum asserts that this case
does not fit the paradigmatic case for impeachment. President's Trial
Memorandum at 24. However, none of his predecessors ever faced
overwhelming evidence of repeatedly lying under oath before a federal
court and grand jury and otherwise seeking to obstruct justice to
benefit himself--directly contradicting his oath to ``take care that
the laws are faithfully executed.'' But as former Attorney General
Griffin Bell, who served under President Carter, said before the House
Judiciary Committee recently, ``[a] President cannot faithfully execute
the laws if he himself is breaking them.'' Background and History of
Impeachment: Hearings Before the Subcomm. on the Constitution of the
House Comm. on the Judiciary, 105th Cong., 2d Sess. at 203 (Comm. Print
1998) (Testimony of Judge Griffin B. Bell).
President Clinton goes on to state that to make the offenses
alleged against him impeachable and removable conduct ``would forever
lower the bar in a way inimical to the Presidency and to our government
of separated powers. These articles allege (1) sexual misbehavior, (2)
statements about sexual misbehavior and (3) attempts to conceal the
fact of sexual misbehavior.'' President's Trial Memorandum at 26. While
President Clinton and his able counsel would like to define the case
this way, what is at issue in the articles of impeachment before the
Senate is clear: perjury and obstruction of justice committed by the
President of the United States in order to thwart a duly instituted
civil rights sexual harassment lawsuit against him as well as a
subsequent grand jury investigation. While the President may think such
allegations would forever lower the bar in terms of the conduct we
expect from our public officials, we must square his opinion and that
of his lawyers with the fact that his Justice Department puts people in
prison for similar conduct. While the President's brief again quotes
Arthur Schlesinger, Jr. for the proposition that we must not ``lower
the bar,'' President's Trial Memorandum at 26, Schlesinger held a
different view during the impeachment of President Nixon:
``If the Nixon White House escaped the legal consequences of its
illegal behavior, why would future Presidents and their associates not
suppose themselves entitled to do what the Nixon White House had done?
Only condign punishment would restore popular faith in the Presidency
and deter future Presidents from illegal conduct.''
(Schlesinger at 418.)
5. The President and Federal Judges are Impeached, Convicted, and
Removed From Office Under the Same Standard
President Clinton's argument that Presidents are held to a lower
standard of behavior than federal judges completely misreads the
Constitution and the Senate's precedents. See generally House Trial
Brief at 101-06. The Constitution provides one standard for the
impeachment, conviction, and removal from office of ``[t]the President,
the Vice President, and all civil officers of the United States.'' U.S.
Const. art II, Sec. 4. It is the commission of ``Treason, Bribery, or
other high Crimes and Misdemeanors.'' Id. The Senate has already
determined that perjury is a high crime and misdemeanor in the cases of
Judge Nixon, Judge Hastings, and Judge Claiborne.
President Clinton argues that the standard differs because judges
have life tenure whereas Presidents are accountable to the voters at
elections. That argument fails on several grounds. The differing
tenures are set forth in the Constitution, and there is simply no
textual support for the idea that they affect the impeachment standard
at all. If electoral accountability were a sufficient means of
remedying presidential misconduct, the framers would not have
explicitly included the President in the impeachment clause. Finally,
even if this argument were otherwise valid, it does not apply to
President Clinton because he will never face the voters again. U.S.
Const. amend. XXII. Indeed, all of the conduct charged in the Articles
occurred after the 1996 election.
Then President Clinton rejects the Senate's own precedents showing
that perjury is a high crime and misdemeanor in the three judicial
impeachments of the 1980s arguing that all of the lying involved there
concerned the judges' official duties. That is true with respect to
Judge Hastings, but completely false with respect to Judge Claiborne
and Judge Nixon. Judge Claiborne was impeached and convicted for lying
on his income tax returns, an entirely personal matter. President
Clinton tries to explain this away by saying: ``Once convicted, [Judge
Claiborne] simply could not perform his official functions because his
personal probity had been impaired such that he could not longer be an
arbiter of others' oaths.'' President's Trial Memorandum at 29. The
same is true of President Clinton. He ultimately directs the Department
of Justice which must decide whether people are prosecuted for lying.
If he has committed perjury and obstructed justice, how can he be the
arbiter of other's oaths? As Professor Jonathan Turley put it:
``As Chief Executive the President stands as the ultimate authority
over the Justice Department and the Administration's enforcement
policies. It is unclear how prosecutors can legitimately threaten, let
alone prosecute, citizens who have committed perjury or obstruction of
justice under circumstances nearly identical to the President's. Such
inherent conflict will be even greater in the military cases and the
President's role as Commander-in-Chief.''
(Background and History of Impeachment: Hearings Before the Subcomm. on
the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d
Sess. at 274 (Comm. Print 1998) (Testimony of Professor Jonathan
Turley).)
In the same vein, President Clinton claims that Judge Nixon
``employ[ed] the power and prestige of his office to obtain advantage
for a party.'' President's Trial Brief at 29. In fact, Judge Nixon
intervened in a state criminal case in which he had no official role.
His ability to persuade the prosecutor to drop the case rested on his
friendship with the state prosecutor--not his official position.
President Clinton argues that it was Judge Nixon's intervention in a
judicial proceeding that ties it to his official position. The same is
true of President Clinton. He intervened in two judicial proceedings
and his actions had the same effect as Judge Nixon's--to defeat a just
result.
As the person who ultimately directs the Justice Department--the
federal government's prosecutorial authority--the President must follow
his constitutional duty to take care that the laws are faithfully
executed. U.S. Const. art II, Sec. 3. His special constitutional duty
is at least as high, if not higher, than the judge's. Indeed, President
Clinton acknowledged as much early in his Administration when
controversy arose about the nomination of Zoe Baird and the potential
nomination of Judge Kimba Wood to be Attorney General. Questions were
raised about whether they had properly complied with laws relating to
their hiring of household help. At that time, President Clinton said
the Attorney General ``should be held to a higher standard than other
Cabinet members on matters of this kind [i.e. strictly complying with
the law].'' Remarks of President Clinton with Reporters Prior to a
Meeting with Economic Advisers, February 8, 1993, 29 Weekly Compilation
of Presidential Documents 160. If the Attorney General is held to a
higher standard of compliance with the law, then her superior,
President Clinton, must be also.
b. the individual consciences of senators determines the burden of
proof in impeachment trials
The Constitution does not discuss the standard of proof for
impeachment trials. It simply states that ``the Senate shall have the
Power to try all Impeachments.'' U.S. Const., Art I, Sec. 3, clause 5.
Because the Constitution is silent on the matter, it is appropriate to
look at the past practice of the Senate. Historically, the Senate has
never set a standard of proof for impeachment trials. ``In the final
analysis the question is one which historically has been answered by
individual Senators guided by their own consciences.'' Congressional
Research Service Report for Congress, Standard of Proof in Senate
Impeachment Proceedings, Thomas B. Ripy, Legislative Attorney, American
Law Division (January 7, 1999).
President Clinton argues that the impeachment trial is similar to a
criminal trial and that the appropriate standard should therefore be
``beyond a reasonable doubt.'' That argument is not new: it has been
made in the past, and the Senate has rejected it, as indeed, President
Clinton acknowledges. He asserts, however, that the impeachment trial
of a President should proceed under special procedures that do not
apply to the trial of other civil officers. His arguments are
unpersuasive.
1. The Senate has Never Adopted the Criminal Standard of ``Beyond a
Reasonable Doubt'' or Any Other Standard of Proof for
Impeachment Trials
The Senate has never adopted the standard of ``beyond a reasonable
doubt'' in any impeachment trial in U.S. history. In fact, the Senate
has chosen not to impose a standard at all, preferring to leave to the
conscience of each senator the decision of how best to judge the facts
presented.
In the impeachment trial of Judge Harry Claiborne, counsel for the
respondent moved to designate ``beyond a reasonable doubt'' as the
standard of proof for conviction. Gray & Reams, The Congressional
Impeachment Process and the Judiciary: Documents and Materials on the
Removal of Federal District Judge Harry E. Claiborne, Volume 5,
Document 41, X (1987). The Senate overwhelmingly rejected the motion by
a vote of 17-75. In the floor debate on the motion, House Manager
Kastenmeier emphasized that the Senate has historically allowed each
member to exercise his personal judgment in these cases. 132 Cong. Rec.
S15489-S15490 (daily ed. October 7, 1986).
The question of the appropriate standard of proof was also raised
in the trial of Judge Alcee Hastings. In the Senate Impeachment Trial
Committee, Senator Rudman said in response to a question about the
historical practice regarding the standard of proof that there has been
no specific standard, ``you are not going to find it. It is what is in
the mind of every Senator. . . . I think it is what everybody decides
for themselves.'' Report of the Senate Impeachment Trial Committee on
the Articles Against Judge Alcee Hastings: Hearings before the Senate
Impeachment Trial Committee (Part 1) 101st Cong., 1st Sess. 73-75,
(discussion involving Senator Lieberman and Senator Rudman).
2. The Criminal Standard of Proof is Inappropriate for Impeachment
Trials
President Clinton argues that an impeachment trial is akin to a
criminal trial and that, therefore, the criminal standard should apply.
That assertion is, of course, at direct odds with his apparent
opposition to the presentation of evidence through witnesses, another
normal criminal trial procedure. The Senate Rules Committee rejected
this analogy in 1974, stating, ``an impeachment trial is not a criminal
trial,'' and advocating a clear and convincing evidence standard.
Executive Session Hearings, U.S. Senate Committee on Rules and
Administration, ``Senate Rules and Precedents Applicable to Impeachment
Trials'' 93rd Cong., 2d Sess. (August 5-6, 1974). Indeed, it is
undisputed that impeachable offenses need not be criminal offenses. See
Submission by Counsel for President Clinton to the Committee on the
Judiciary of the United States House of Representatives, 105th Cong.,
2d Sess. at 14 (Comm. Print Ser. No. 16 1998) (``Impeachable acts need
not be criminal acts.'')
Moreover, the result of conviction in an impeachment trial is
removal from office, not punishment. As the House argued in the
Claiborne trial, the reasonable standard was designed to protect
criminal defendants who risked ``forfeitures of life, liberty and
property'' (quoting Brinegar v. United States, 338 U.S. 160, 174
(1949)). This standard is inappropriate here because the Constitution
limits the consequences of a Senate impeachment trial to removal from
office and disqualification from holding office in the future,
explicitly preserving the option for a subsequent criminal trial in the
courts. U.S. Const. art. II, Sec. 3, cl. 6.
In addition, as the House argued in the Claiborne trial, the
criminal standard is inappropriate because impeachment is, by its
nature, a proceeding where the public interest weighs more heavily than
the interest of the individual defendant. Gray & Reams, The
Congressional Impeachment Process and the Judiciary: Documents and
Materials on the Removal of Federal District Judge Harry E. Claiborne,
Volume 5, Document 41, X (1987). During the course of the floor debate
on this motion in the Claiborne trial, Representative Kastenmeier
argued for the House that the use of the criminal standard was
inappropriate where the public interest in removing corrupt officials
was a significant factor. 132 Cong. Rec. S15489-S15490 (daily ed.
October 7, 1986).
3. A President Who Is Impeached Should Not Receive Special Procedural
Benefits That Do Not Apply in the Impeachment Trials of Other
Civil Officers
President Clinton argues that he should be exempted from the weight
of historical practice and precedent and be given a special rule on the
standard of proof. This argument is based on fallacious assertions, the
first of which is that different constitutional standards apply to the
impeachment of judges and presidents. See above at 14-16 and House
Trial Memorandum at 101-06.
President Clinton also employs inflammatory rhetoric to suggest
that a presidential impeachment trial ought to be treated differently,
explaining that the criminal standard is needed because ``the
Presidency itself is at stake'' and because conviction would ``overturn
the results of an election.'' President's Trial Memorandum at 32-33.
The presidency is, of course, not at stake, though the tenure of its
current office holder may be. The 25th Amendment to the Constitution
ensures that impeachment and removal of a President would not overturn
an election because it is the elected Vice President who would replace
the President not the losing presidential candidate.
Finally, President Clinton argues that the evidence should be
tested by the most stringent standard because ``there is no suggestion
of corruption or misuse of office--or any other conduct that places our
system of government at risk in the two remaining years of the
President's term.'' President's Trial Memorandum at 33. While the
President might be expected to argue that he did not act corruptly, he
cannot credibly assert that ``there is no suggestion of corruption,''
because ``corrupt'' conduct is precisely what he is charged with in the
articles of impeachment. Though not persuasive as an argument, this
statement is significant in what it concedes--that corruption is among
the ``conduct that places our system of government at risk.''
President's Trial Memorandum at 33. Having acknowledged this, President
Clinton cannot be heard to complain that the House has failed to charge
him with conduct which rises to the level of an impeachable offense.
IV. The Structure of the Articles is Proper and Sufficient
a. the articles are not unconstitutionally vague
President Clinton's trial memorandum argues that the two articles
of impeachment are unfairly complex. To the contrary, the articles
present the misdeeds of President Clinton and their consequences in as
transparent and understandable a manner as possible.
The first article of impeachment charges that President Clinton
violated his enumerated constitutional responsibilities by willfully
corrupting and manipulating the judicial process. He did this by
providing perjurious, false and misleading testimony to a grand jury in
regard to one or more of four matters. The deleterious consequences his
actions had for the people of the United States are then described. The
second article charges that President Clinton violated his enumerated
constitutional responsibilities by a course of conduct that prevented,
obstructed, and impeded the administration of justice. One or more of
seven listed acts constitute the particulars of President Clinton's
course of conduct. As in the first article, the deleterious
consequences his actions had for the people of the United States are
then described.
To do as President Clinton requests would require separating out
into a unique article of impeachment each possible combination of (a) a
particular violation of his duties, (b) a particular wrongful act, and
(c) a particular consequence of his actions. This would require 48
different articles in the case of the first article and 84 in the case
of the second. Such a multiplicity of articles is not required and
would assist no one. Of course, if the president had violated fewer
presidential duties, committed fewer misdeeds, and been responsible for
fewer harmful consequences to the American people, the articles could
have been drafted more simply.
The trial memorandum then makes the contention that the two
articles of impeachment are impermissibly vague and lacking in
specificity in that they do not meet the standards of a criminal
indictment. This contention clearly misses the mark. Impeachment is a
political and not a criminal proceeding, designed, as recognized by
Justice Joseph Story, the Constitution's greatest nineteenth century
interpreter, ``not . . . to punish an offender'' by threatening
deprivation of his life or liberty, but to ``secure the state'' by
``divest[ing] him of his political capacity''. J. Story, Commentaries
on the Constitution (R. Rotunda & J. Nowak eds., 1987) Sec. 803.
Justice Story thus found the analogy to an indictment to be invalid:
``The articles . . . need not, and indeed do not, pursue the strict
form and accuracy of an indictment. They are sometimes quite general in
the form of the allegations; but always contain, or ought to contain,
so much certainty, as to enable the party to put himself upon the
proper defense, and also, in case of an acquittal, to avail himself of
it, as a bar to another impeachment.''
(Id. at Sec. 806).
In explaining the impeachment process to the citizens of New York
in Federalist No. 65, Alexander Hamilton stated in more general terms
that impeachment ``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 the
discretion of courts in favor of personal security.'' The Federalist
No. 65, at 398 (Clinton Rossiter ed., 1961).
Can the president legitimately argue that he is unable to put on a
proper defense? President Clinton has committed a great number of
impeachable misdeeds. The House Judiciary Committee's committee report
requires 20 pages just to list the most glaring instances of the
president's perjurious, false, and misleading testimony before a
federal grand jury and it requires 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. The House
believes that President Clinton's attorneys have reviewed the committee
report. They know exactly what he is being charged with, as is
acknowledged in the president's trial memorandum. The memorandum states
in its introduction that ``[t]ake away the elaborate trappings of the
Articles and the high-flying rhetoric that accompanied them, and we see
clearly that the House of Representatives asks the Senate to remove the
President from office because he . . .'' President's Trial Memorandum
at 2. In addition, in the House proceedings, the President filed three
documents: a Preliminary Memorandum, an Initial Response, and a
Submission by Counsel. The first two documents were printed together
and ran to 57 pages. Preliminary Memorandum of the President of the
United States Concerning Referral of the Office of the Independent
Counsel and Initial Response of the President of the United States to
Referral of the Office of the Independent Counsel, 105th Cong., 2d
Sess., H.Doc. No. 105-317 (1998). The third was printed and ran to 404
pages. Submission by Counsel for President Clinton to the Committee on
the Judiciary of the United States House of Representatives, 105th
Cong., 2d Sess. (Comm. Print Ser. No. 16 1998). He was also given 30
hours to present his case before the House Committee on the Judiciary,
during which he called numerous witnesses. The Committee repeatedly
asked President Clinton to provide it with any exculpatory evidence, an
offer which he never accepted. Now President Clinton's Trial Memorandum
to the Senate runs to 130 pages. Clearly, President Clinton has not
suffered from any lack of specificity in the articles of impeachment.
If he had, he would have availed himself of the opportunity to file
a motion for a bill of particulars. He had that opportunity on January
11, 1999, and he waived it. He should not now be heard to claim that he
does not know what the charges are.
Unlike the judicial impeachments of the 1980s, President Clinton
has not committed a handful of specific misdeeds that can easily be
listed in separate articles of impeachment. In order to encompass the
whole melange of misdeeds that caused the House of Representatives to
impeach President Clinton, the Judiciary Committee looked to the only
analogous case--that of President Nixon. In 1974, the Committee was
also faced with drafting articles of impeachment of a reasonable length
against a president who had committed a long series of improper acts
designed to achieve an illicit end.
The first article of impeachment against President Nixon charged
that in order to cover up an unlawful entry into the headquarters of
the Democratic National Committee and to delay, impede, and obstruct
the consequent investigation (and for certain other purposes), he
engaged in a series of acts such as ``making or causing to be made
false or misleading statements to lawfully authorized investigative
officers'', ``endeavoring to misuse the Central Intelligence Agency'',
and ``endeavoring to cause prospective defendants and individuals duly
tried and convicted, to expect favored treatment and consideration in
return for their silence or false testimony.'' Impeachment of Richard
M. Nixon, President of the United States, H. Rept. No. 93-1305, 93rd
Cong., 2d Sess. 2 (1974). The article did not list each false or
misleading statement, did not list each misuse of the CIA, and did not
list each prospective defendant and what they were promised.
In like fashion, the articles of impeachment against President
Clinton charge him with providing perjurious, false, and misleading
testimony concerning four subjects, such as an his relationship with a
subordinate government employee, and engaging in a course of conduct
designed to prevent, obstruct, and impede the administration of
justice, such course including four generals acts such as an effort to
secure job assistance for that employee. An argument can be made that
the articles of impeachment against President Clinton were drafted with
more specificity than those against President Nixon. Unless President
Clinton is arguing that the Senate should have dismissed the first
article of impeachment against President Nixon (had the president not
resigned), he has little ground to complain about the articles against
himself. In short, President Clinton knows exactly what the charges
are, and the Senate should now require him to account for his behavior.
b. the articles do not improperly charge multiple offenses in one
article
President Clinton argues unpersuasively that the articles of
impeachment are ``unconstitutionally flawed'' in two respects. First,
he argues that ``by charging multiple wrongs in one article, the House
of Representatives has made it impossible for the Senate to comply with
the Constitutional mandate that any conviction be by the concurrence of
two-thirds of the members.'' President's Trial Memorandum at 101.
Second, he argues that the articles do not provide him ``the most basic
notice of the charges against him required by due process and
fundamental fairness.'' Id. Both arguments are factually deficient,
ignore Senate precedent and procedure, and are constitutionally flawed.
The articles of impeachment allege that the President made ``one or
more'' ``perjurious, false and misleading statements to the grand
jury'' and committed ``one or more'' acts in which he obstructed
justice. H. Res. 611, 105th Cong. 2nd Sess. (1998). The articles of
impeachment are modeled after those adopted by the House Committee on
the Judiciary against President Nixon and were drafted with the rules
of the Senate in mind. Senate Rules specifically contemplate that the
House may draft articles of impeachment in this manner and prior
rulings of the Senate have held that such drafting is not deficient and
will not sustain a motion to dismiss.
In 1986, the United States Senate amended the Rules of Procedure
and Practice in the Senate When Sitting on Impeachment Trials. S. Res.
479, 99th Cong., 2nd Sess. (1986). As part of the reform, Rule XXIII,
which deals generally with voting the final question, was amended to
clarify the articles of impeachment are not divisible. Rule XXIII
provides in relevant part that:
``An article of impeachment shall not be divisible for the purpose
of voting thereon at any time during the trial. Once voting has
commenced on an article of impeachment, voting shall be continued until
voting has been completed on all articles of impeachment unless the
Senate adjourns for period not to exceed one day or adjourns sine
die.''
The Senate Committee on Rules and Administration, after thoroughly
reviewing the impeachment rules, prior articles of impeachments, and
prior Senate trials, decided that articles of impeachment should not be
divisible. In drafting the amendment to Rule XXIII providing that
articles of impeachment not be divided, the Senate was aware that the
House may combine multiple counts of impeachable conduct in one article
of impeachment. The Committee report explains the Senate's position:
``The portion of the amendment effectively enjoining the divisions
of an article into separate specifications is proposed to permit the
most judicious and efficacious handling of the final question both as a
general manner and, in particular, with respect to the form of the
articles that proposed the impeachment of President Richard M. 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 review 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 *
* *.'' Accordingly, it was agreed to write into the proposed rules
language which would allow each Senator to vote to convict under either
the first or second articles if he were convinced that the person
impeached was ``guilty'' or one or more of the enumerated
specifications.''
Amending the Rules of Procedure and Practice in the Senate When Sitting
on Impeachment Trials, Report of the Comm. on Rules and Administration,
S. Rept. 99-401, 99th Cong., 2nd Sess., at 8 (1986) (emphasis added).
Because the Senate was aware that multiple specifications of
impeachment conduct may be contained in an article of impeachment, the
Senate's rules implicitly countenance such drafting.
The issue regarding whether articles of impeachment are divisible
is not new to the Senate. In fact, the Senate's Committee on Rules and
Administration reviewed the Senate's impeachment procedures in 1974 to
prepare for a possible trial of President Richard Nixon. The Committee
passed the exact same language as the Committee did in 1986 prohibiting
the division of an article of impeachment. Because President Nixon
resigned, the full Senate never considered the amendments.
Senator Jacob K. Javits of New York submitted a statement to the
Committee in 1974 addressing the divisibility issue and advised that
Rule XXIII be amended to prohibit the division of an article of
impeachment. His comments, as follows, are instructive:
``Rule XXIII provides for the yeas and nays to be taken on each
article separately but does not set any order for a vote when there are
several articles. In the [President] Johnson trial, this was done by
order of the Senate and several votes were taken on the order. This
procedure, setting a vote for final consideration, should be stated in
the rules. Also the rule is silent about the division of any article.
In the Johnson trial a division was requested and the Chief Justice
attempted to devise one, but could not, and the article as a whole was
submitted for a vote to the Senate. I believe articles should not be
divided because this raises a further question of whether a two-thirds
vote is required on each part of an article and whether the House
action on the construction of a particular article can be changed
without further action by the House. Thus the rule should provide for
no division of an article by the Senate.''
(Senate Rules and Precedents Applicable to Impeachment Trials,
Executive Session Hearings before the Comm. on Standing Rules and
Administration, 93rd Cong., 2nd Sess. at 116 (August 5th and 6th, 1974)
(emphasis added).)
In addition to implicitly recognizing that articles of impeachment
may contain multiple specifications of impeachable offenses, the Senate
has convicted a number of judges on such ``omnibus'' articles,
including Judges Archbald, Ritter, and Claiborne. In the case of Judge
Nixon, the Senate acquitted on the article, but refused to dismiss it.
The most recent example, that of Judge Nixon in 1989, is
instructive. Judge Walter L. Nixon filed a motion to dismiss on the
grounds that Article III was duplicative, among other things. Senator
Fowler, the chairman of the committee appointed to take evidence in the
impeachment trial of Judge Nixon explained the reasons for denying
Nixon's motion to refer the motion to dismiss to the full Senate:
``To the extent that the motion rests on the House's inclusion of
fourteen distinct allegations of false statements in one article, we
believe that Article III states an intelligible and adequately discrete
charge of an impeachable offense by alleging that Judge Nixon concealed
information concerning several conversations in which he had engaged by
making ``one or more'' false statements to a grand jury. The House has
substantial discretion in determining how to aggregate related alleged
acts of misconduct in framing Articles of Impeachment and has
historically frequently chosen to aggregate multiple factual
allegations in a single impeachment article. The House's itemization of
the fourteen particular statements whose knowing falsity it is alleging
serves to give Judge Nixon fair notice of the contours of the charge
against him without reducing the intelligibility of the article's
essential accusation that Judge Nixon knowingly concealed material
information from the government's law enforcement agents. Because the
Committee believes that evidentiary proceedings may fairly be conducted
on Article III as it is presently drafted, Judge Nixon's motion to
refer his motion to dismiss Article III to the Senate at this time is
denied.''
(135 Cong. Rec. 19635-36 (September 6, 1989).)
The full Senate eventually rejected Judge Nixon's motion to dismiss
by a vote of 34 to 63. Mr. Manager Cardin persuasively summed up the
argument against the motion to dismiss as follows:
``Judge Nixon argues, in his brief, that you must find all 14
statements to be false to vote guilty on article III. But that is
untrue. Read the article closely. The question posed by article III is,
did Judge Nixon conceal information? Did he conceal information, first
by one or more false or misleading statements in his interview, and
then by one or more false and misleading statements in his grand jury
testimony?
``You need not find all 14 statements to be false. The House is
unanimously convinced that all 14 are complete and utter lies. We hope
you will agree. But after considering the evidence, perhaps you will
conclude that only 12 of the statements are false. It really does not
matter. Just one intentionally false and misleading statement in the
interview, or one in the grand jury, should be enough. Because if you
conclude that Judge Nixon concealed information, whether by 1 false
statement or 14, he should be removed from the bench. You should vote
guilty on article III.
``And you need not necessarily agree on which statements are false,
if you reach the conclusion that he concealed information. If two-
thirds of the Senators present believe Judge Nixon lied, regardless of
how each individual Senator reached that conclusion, he will properly
be removed from office.
* * * * * * *
``This is by no means unfair to Judge Nixon, for even if you might
differ on which particular statements are lies, the bottom line is that
two-thirds of you will have agreed that he concealed information,
rendering him unfit for office. That is what the Constitution
requires.''
(Id. at 26751.)
Given the clear Senate precedent permitting articles of impeachment
containing multiple specifications of impeachable offenses, the
President's attack on the construction of the articles is an attack on
Senate rules and precedent. The President's concerns, if assumed to be
valid, could be addressed simply by permitting a division of the
question. Under the standing rules of the Senate, any Senator may have
the same divided if ``the question in debate contains several
propositions.'' Senate Rule XV. A question is divisible if it contains
two or more separate and distinct propositions. The Senate, however,
has made an affirmative decision to dispense with the regular order
which governs bills, resolutions, and amendments thereto, and instead
adopted a different procedure not permitting the division of articles
of impeachment. The Senate has not acted unconstitutionally in the past
regarding prior impeachments, and is not on a course to do so in the
trial of President Clinton.
The claim that President Clinton is not on notice regarding the
charges is ludicrous. The Lewinsky matter is arguably the most reported
and scrutinized story of 1998 and possibly of 1999. The facts of the
case are contained in numerous documents, statements, reports, and
filings. Specifically, President Clinton has had the following
documents, among others, containing the facts and specifics of the
case: (1) Referral from Independent Counsel Kenneth W. Starr in
Conformity with the Requirements of Title 28, United States Code,
Section 595(c), H.Doc. 105-310, 105th Cong., 2nd Sess. (1998); (2)
Investigatory Powers of the Comm. on the Judiciary with Respect to its
Impeachment Inquiry, H. Rept. 105-795, 105th Cong., 2nd Sess. (October
7, 1998); (3) Impeachment of William Jefferson Clinton, President of
the United States, 105th Cong., 2nd Sess., H.R. Rept. 105-830 (Dec. 16,
1998); and (4) Trial Memorandum of the United States House of
Representatives. If all of these reports and the thousands of pages of
documents are not enough, President Clinton will have the opportunity
to review the presentation of the Managers on the Part of the House for
up to twenty-four hours.
V. President Clinton Completely Misstates the Record as to the
Discovery Procedures That Were Available to Him in the House of
Representatives
President Clinton's trial memorandum claimed to the Senate that,
should it decide ``to allow the House managers to expand the record in
some way . . . the President would have an urgent need for the
discovery of relevant evidence, because at no point in these
proceedings has been able to subpoena documents or summon or cross-
examine witnesses.'' President's Trial Memorandum at 125 (emphasis
added). The President also states that ``the House of Representatives
[did not] afford the President any discovery mechanisms to secure
evidence that might be helpful in his defense.'' Id.
We will not address every discovery issue here since those issues
will be resolved in the coming days; however, the Senate should know
that these claims are absolutely false. In fact, the President's own
brief refutes his claims. ``The Committee allowed the President's
lawyers two days in which to present a defense. The White House
presented four panels of distinguished expert witnesses. . . .'' White
House Counsel Charles F.C. Ruff presented argument to the Committee on
behalf of the President. . . .'' Id. at 13.
The House Committee on the Judiciary repeatedly asked the
President's attorneys to supply any exculpatory evidence to the
Committee, both orally and in writing. They never did. When, at the
last minute, the President's counsel requested witnesses, the Committee
invited to testify every witness they requested. Aside from this,
President Clinton nor his attorneys never asked to ``subpoena
documents'' or ``summon or cross-examine witnesses.'' If President
Clinton's argument is that the Committee did not provide his staff a
stack of blank subpoenas, that is correct. However, neither the House
of Representatives, nor the Senate, has the ability to ``turn over''
its constitutionally based subpoena power to the executive branch.
President Clinton's attorneys never asked to do the things they now
claim they never had the ability to do. In fact, when minority members
of the Committee publicly asked that Judge Starr be called as a
witness, Judge Starr was called. In fact, President Clinton's attorney
and minority counsel questioned Judge Starr for over two hours. Every
Member of the Committee questioned him for at least five minutes each.
Judge Starr was a witness, and he was cross-examined by David Kendall,
President Clinton's private attorney. President Clinton's claims are
just not accurate.
President Clinton's attorneys raise the issue of fairness. They are
entitled to their own opinion about the House's proceedings, but they
are not entitled to rewrite history. The truth is that the Committee's
subpoena power could have been used to subpoena documents or witnesses
on behalf of the President if they had so requested. They did not. All
they requested, is that lawyers, law professors, and historians testify
before the Committee. In short, President Clinton's statements about
what happened in the House completely misstate what occurred.
VI. Conclusion
For the reasons stated herein and in the Trial Memorandum of the
United States House of Representatives, the House respectfully submits
that the articles properly state impeachable offenses, that the Senate
should proceed to a full trial on the articles, and that after trial,
the Senate should vote to convict President William Jefferson Clinton,
remove him from office, and disqualify him from holding further office.
Respectfully submitted,
The United States
House of Representatives.
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham,
Managers on the Part of the House.
Thomas E. Mooney,
General Counsel.
David P. Schippers,
Chief Investigative Counsel.
Dated: January 14, 1999.
The CHIEF JUSTICE. I would like to inform Members of the
Senate and the parties in this case of my need to stand on
occasion to stretch my back. I have no intention that the
proceedings should be in any way interrupted when I do so.
The Presiding Officer notes the presence in the Senate
Chamber of the managers on the part of the House of
Representatives and counsel for the President of the United
States.
Pursuant to the provisions of Senate Resolution 16, the
managers for the House of Representatives have 24 hours to make
the presentation of their case. The Senate will now hear you.
The Presiding Officer recognizes Mr. Manager Hyde to begin
the presentation of the case for the House of Representatives.
Mr. Manager HYDE. Mr. Chief Justice, distinguished counsel
for the President, and Senators, we are brought together on
this solemn and historic occasion to perform important duties
assigned to us by the Constitution.
We want you to know how much we respect you and this
institution and how grateful we are for your guidance and your
cooperation.
With your permission, we, the managers of the House, are
here to set forth the evidence in support of two articles of
impeachment against President William Jefferson Clinton. You
are seated in this historic Chamber not to embark on some great
legislative debate, which these stately walls have so often
witnessed, but to listen to the evidence, as those who must sit
in judgment.
To guide you in this grave duty, you have taken an oath of
impartiality. With the simple words ``I do,'' you have pledged
to put aside personal bias and partisan interest and to do
``impartial justice.'' Your willingness to take up this calling
has once again reminded the world of the unique brilliance of
America's constitutional system of Government. We are here, Mr.
Chief Justice and distinguished Senators, as advocates for the
rule of law, for equal justice under the law and for the
sanctity of the oath.
The oath. In many ways, the case you will consider in the
coming days is about those two words: ``I do,'' pronounced at
two Presidential inaugurations by a person whose spoken words
have singular importance to our Nation and to the great globe
itself.
More than 450 years ago, Sir Thomas More, former Lord
Chancellor of England, was imprisoned in the Tower of London
because he had, in the name of conscience, defied the absolute
power of the King. As the playwright Robert Bolt tells it, More
was visited by his family, who tried to persuade him to speak
the words of the oath that would save his life, even while, in
his mind and heart, he held firm to his conviction that the
King was in error. More refused. As he told his daughter,
Margaret, ``When a man takes an oath, Meg, he's holding his own
self in his hands. Like water. And if he opens his fingers
then--he needn't hope to find himself again . . .'' Sir Thomas
More, the most brilliant lawyer of his generation, a scholar
with an international reputation, the center of a warm and
affectionate family life which he cherished, went to his death
rather than take an oath in vain.
Members of the Senate, what you do over the next few weeks
will forever affect the meaning of those two words: ``I do.''
You are now stewards of the oath. Its significance in public
service and our cherished system of justice will never be the
same after this. Depending on what you decide, it will either
be strengthened in its power to achieve justice or it will go
the way of so much of our moral infrastructure and become a
mere convention, full of sound and fury, signifying nothing.
The House of Representatives has named myself and 12 other
Members as managers of its case. I have the honor of
introducing those distinguished Members and explaining how we
will make our initial presentation. The gentleman from
Wisconsin, Representative Jim Sensenbrenner, will begin the
presentation with an overview of the case. Representative
Sensenbrenner is the ranking Republican member of the House
Judiciary Committee, and has served for 20 years. In 1989,
Representative Sensenbrenner was a House manager in the
impeachment trial of Judge Walter L. Nixon, who was convicted
on two articles of impeachment for making false and misleading
statements before a federal grand jury.
Following Representative Sensenbrenner will be a team of
managers who will make a presentation of the relevant facts of
this case. From the very outset of this ordeal, there has been
a great deal of speculation and misinformation about the facts.
That has been unfortunate for everyone involved. We believe
that a full presentation of the facts and the law by the House
managers--will be helpful.
Representative Ed Bryant, from Tennessee, was a United
States Attorney from the Western District of Tennessee. As a
captain in the Army, Representative Bryant served in the Judge
Advocate General Corps and taught at the United States Military
Academy at West Point. Representative Bryant will explain the
background of the events that led to the illegal actions of the
President.
Following Representative Bryant, Representative Asa
Hutchinson, from Arkansas, will give a presentation of the
factual basis for article II, obstruction of justice.
Representative Hutchinson is a former United States Attorney
for the Western District of Arkansas.
Next, you will hear from Representative Jim Rogan of
California. Representative Rogan is a former California State
judge and Los Angeles County Deputy District Attorney.
Representative Rogan will give a presentation of the factual
basis for article I, grand jury perjury. This should conclude
our presentation for today.
Tomorrow, Representative Bill McCollum of Florida will tie
all of the facts together and give a factual summation.
Representative McCollum is the Chairman of the Subcommittee on
Crime, a former Naval Reserve Commander and member of the Judge
Advocate General Corps.
Following the presentation of the facts, a team of managers
will present the law of perjury and the law of obstruction of
justice and how it applies to the articles of impeachment
before you. While the Senate has made it clear that a crime is
not essential to impeachment and removal from office, these
managers will explain how egregious and criminal the conduct
alleged in the articles of impeachment is. This team includes
Representative George Gekas of Pennsylvania, Representative
Steve Chabot of Ohio, Representative Bob Barr of Georgia, and
Representative Chris Cannon of Utah. Representative Gekas is
the Chairman of the Subcommittee on Commercial and
Administrative Law. And in 1989, Representative Gekas served as
a manager of the impeachment trial of Judge Alcee Hastings, who
the Senate convicted on eight articles for making false and
misleading statements under oath and one article of conspiracy
to engage in a bribery. Representative Gekas is a former
assistant district attorney. Representative Chabot serves on
the Subcommittee on Crime and has experience as a criminal
defense lawyer. Representative Barr is a former United States
Attorney for the Northern District of Georgia, where he
specialized in public corruption. He also has experience as a
criminal defense attorney. Representative Cannon has had
experience as the Deputy Associate Solicitor General of the
Department of the Interior and as a practicing attorney. That
should conclude our presentation for Friday.
On Saturday, three managers will make a presentation on
Constitutional law as it relates to this case. There has been a
great deal of argument about whether the conduct alleged in the
articles rises to the level of removable offenses. This team's
analysis of the precedents of the Senate and application of the
facts of this case will make it clear that the Senate has
established the conduct alleged in the articles to be removable
offenses. In this presentation you will hear from
Representative Charles Canady of Florida, Representative Steve
Buyer of Indiana and Representative Lindsey Graham of South
Carolina. Representative Canady is the Chairman of the
Subcommittee on the Constitution and one of the leading voices
on constitutional law in the House. Representative Buyer served
in the United States Army as a member of the Judge Advocate
General's Corps where he was assigned as Special Assistant to
the United States Attorney in Virginia. He also served as a
deputy to the Indiana Attorney General. Representative Graham
served in the Air Force as a member of the Judge Advocate
General's Corps and as a South Carolina Assistant Attorney.
Following the presentation of the facts, the law of perjury
and obstruction of justice and constitutional law, Mr. Rogan
and myself will give you a final summation and closing to our
initial presentation.
The CHIEF JUSTICE. Mr. Manager Sensenbrenner is recognized.
Mr. Manager SENSENBRENNER. Mr. Chief Justice, distinguished
counsel to the President, and Senators, in his third annual
message to Congress on December 7, 1903, President Theodore
Roosevelt said:
No man is above the law and no man is below it; nor do we
ask any man's permission when we require him to obey it.
Obedience to the law is demanded as a right; not asked as a
favor.
We are here today because President William Jefferson
Clinton decided to put himself above the law--not once, not
twice, but repeatedly. He put himself above the law when he
engaged in a multifaceted scheme to obstruct justice during the
Federal civil rights case of Paula Corbin Jones versus William
Jefferson Clinton, et. al. He put himself above the law when he
made perjurious, false and misleading statements under oath
during his grand jury testimony on August 17, 1998. In both
instances, he unlawfully attempted to prevent the judicial
branch of Government--a coequal branch--from performing its
constitutional duty to administer equal justice under the law.
The U.S. House of Representatives has determined that the
President's false and misleading testimony to the grand jury
and his obstruction of justice in the Jones lawsuit are high
crimes and misdemeanors within the meaning of the Constitution.
Should the Senate conduct a fair and impartial trial which
allows each side to present its best case, then the American
public can be confident that justice has been served,
regardless of the outcome.
We hear much about how important the rule of law is to our
Nation and to our system of government. Some have commented
that this expression is trite. But, whether expressed by these
three words, or others, the primacy of law over the rule of
individuals is what distinguishes the United States from most
other countries and why our Constitution is as alive today as
it was 210 years ago.
The framers of the Constitution devised an elaborate system
of checks and balances to ensure our liberties by making sure
that no person, institution, or branch of Government became so
powerful that a tyranny could ever be established in the United
States of America.
We are the trustees of that sacred legacy and whether the
rule of law and faith in our Nation emerges stronger than ever
or are diminished irreparably, depends upon the collective
decision of the message each Senator chooses to send forth in
the days ahead.
The evidence you will hear relates solely to the
President's misconduct, which is contrary to his constitutional
public responsibility to ensure the laws be faithfully
executed. It is not about the President's affair with a
subordinate employee, an affair that was both inappropriate and
immoral. Mr. Clinton has recognized that this relationship was
wrong. I give him credit for that. But he has not owned up to
the false testimony, the stonewalling and legal hairsplitting,
and obstructing the courts from finding the truth. In doing so,
he has turned his affair into a public wrong. And for these
actions, he must be held accountable through the only
constitutional means the country has available--the difficult
and painful process of impeachment.
Impeachment is one of the checks the framers gave to
Congress to protect the American people from a corrupt or
tyrannical executive or judicial branch of Government. Because
the procedure is cumbersome and because a two-thirds vote in
the Senate is required to remove an official following an
impeachment trial, safeguards are there to stop Congress from
increasing its powers at the expense of the other two branches.
The process is long. It is difficult. It is unpleasant. But,
above all, it is necessary to maintain the public's trust in
the conduct of their elected officials--elected officials, such
as myself and yourselves, who through our oaths of office have
a duty to follow the law, fulfill our constitutional
responsibilities, and protect our Republic from public
wrongdoing.
The Framers of the Constitution envisioned a separate and
distinct process in the House and in the Senate. They did not
expect the House and Senate to conduct virtually identical
proceedings with the only difference being that conviction in
the Senate requires a two-thirds vote. That is why the
Constitution reserves the sole power of impeachment to the
House of Representatives and the sole power to try all
impeachments to the Senate. History demonstrates different
processes were adopted to reflect very different roles.
In the case of President Andrew Johnson, no hearings were
held or witnesses called by the House on the President's
decision to remove Secretary of War Stanton from office. The
House first approved a general article of impeachment that
simply stated that President Johnson was impeached for high
crimes and misdemeanors. Five days later, a special House
committee drew up specific articles. Eleven articles were
passed by the House, all but two of which were based upon
President Johnson's alleged violation of the Tenure of Office
Act by his actions in removing Secretary of War Stanton. The
trial was then conducted with witnesses in the Senate.
In the case of President Nixon, the House Judiciary
Committee passed three articles of impeachment based not upon
their own investigation, but upon the evidence gathered by the
Ervin Committee, the Patman Committee, the Joint Tax Committee,
and material from the special prosecutor and various court
proceedings. Nine witnesses were called at the end of the
impeachment inquiry, five of them at the request of the White
House, and their testimony was not at the center of the
impeachment articles.
In the Judge Walter Nixon impeachment in 1989, a trial with
live witnesses was held even after the Senate rejected by less
than a two-thirds vote a defense motion to dismiss one article
of impeachment on the grounds that it did not constitute an
impeachable offense.
The House managers submit that witnesses are essential to
give heightened credence to whatever judgment the Senate
chooses to make on each of the articles of impeachment against
President Clinton.
The matter of how this proceeding will be conducted remains
somewhat unsettled. Senate impeachment precedent has been to
hold a trial. In every impeachment case, the Senate has heard
from live witnesses. Should the President's counsel dispute the
facts as laid out by the House of Representatives, the Senate
will need to hear from live witnesses in order to reach a
proper and fair judgment as to the truthful facts of this case.
The House concluded the President made perjurious, false
and misleading statements before the grand jury, which the
House believes constitute a high crime and misdemeanor. Our
entire legal system is based upon the courts being able to find
the truth. That's why witnesses must raise their right hand and
swear to tell the truth, the whole truth, and nothing but the
truth. That's why there are criminal penalties for perjury and
making false statements under oath. The need for obtaining
truthful testimony in court is so important that the Federal
sentencing guidelines have the same penalties for perjury as
for bribery.
The Constitution specifically names bribery as an
impeachable offense. Perjury is the twin brother of bribery. By
making the penalty for perjury the same as that for bribery,
Congress has acknowledged that both crimes are equally serious.
It follows that perjury and making false statements under oath,
which is a form of perjury, be considered among the ``high
crimes and misdemeanors'' the framers intended to be grounds
for impeachment.
The three judicial impeachments of the 1980s were all about
lies told by a federal judge. Judge Claiborne was removed from
office for lying on his income tax returns, Judge Hastings was
removed for lying under oath during a trial, and Judge Nixon
was removed for making false statements to a grand jury. In
each case, the Senate showed no leniency to judges who lied.
Their misconduct was deemed impeachable and more than two-
thirds of the Senate voted to convict.
If the Senate is convinced that President Clinton lied
under oath and does not remove him from office, the wrong
message is given to our courts, those who have business before
them, and to the country as a whole. That terrible message is
that we as a nation have set a lower standard for lying under
oath for Presidents than for judges. Should not the leader of
our country be held to at least as high a standard as the
judges he appoints? Should not the President be obliged to tell
the truth when under oath, just as every citizen must? Should
not our laws be enforced equally? Your decision in this
proceeding will answer these questions and set the standard of
conduct of public officials in town halls and courtrooms and
the Oval Office for generations.
Justice is never served by the placing of any public
official above the law. The framers rejected the British law of
``The King can do no wrong,'' when they wrote our basic law in
1787. Any law is only as good as its enforcement, and the
enforcement of the law against the President was left to
Congress through the impeachment process.
A Senate conviction of the President in this matter will
reaffirm the irrefutable fact that even the President of the
United States has no license to lie under oath. Deceiving the
courts is an offense against the public. It prevents the courts
from administering justice and citizens from receiving justice.
Every American has the right to go to court for redress of
wrongs, as well as the right to a jury trial. The jury finds
the facts. The citizens on the jury cannot correctly find the
facts absent truthful testimony. That's why it's vital that the
Senate protect the sanctity of the oath to obtain truthful
testimony, not just during judicial proceedings but also during
legislative proceedings.
Witnesses before Congress, whether Presidential nominees
seeking Senate confirmation to high posts in the executive or
judicial branches, federal agency heads testifying during
investigative hearings, or witnesses at legislative hearings
giving their opinions on bills are sworn to tell the truth.
Eroding the oath to tell the truth means that Congress loses
some of its ability to base its decisions upon truthful
testimony. Lowering the standard of the truthfulness of sworn
testimony will create a cancer that will keep the legislative
branch from discharging its constitutional functions as well.
Mr. Chief Justice, we are here today because William
Jefferson Clinton decided to use all means possible--both legal
and illegal--to subvert the truth about his conduct relevant to
the federal civil rights suit brought against President Clinton
by Ms. Paula Jones. Defendants in civil lawsuits cannot pick
and choose which laws and rules of procedure they will follow
and which they will not. That's for the trial judge to decide,
whether the defendant be President or pauper.
In this case, a citizen claimed her civil rights were
violated when she refused then Governor Clinton's advances and
was subsequently harassed at work, denied merit pay raises, and
finally forced to quit. The court ruled she had the right to
obtain evidence showing other women including Ms. Lewinsky, got
jobs, promotions, and raises after submitting to Mr. Clinton,
and whether other women suffered job detriments after refusing
similar advances.
When someone lies about an affair and tries to hide the
fact, they violate the trust their spouse and family put in
them. But when they lie about it during a legal proceeding and
obstruct the parties from obtaining evidence, they prevent the
courts from administering justice.
That is an offense against the public, made even worse when
a poor or powerless person seeks the protections of our civil
rights from the rich or powerful.
When an American citizen claims his or her civil rights
have been violated, we must take those claims seriously. Our
civil rights laws have remade our society for the better. The
law gives the same protections to the child denied entry to a
school or college based upon race as to an employee claiming
discrimination at work. Once a hole is punched in civil rights
protections for some, those protections are not worth as much
for all. Many in the Senate have spent their lives advancing
individual rights. Their successful efforts have made America a
better place. In my opinion, this is no time to abandon that
struggle--no matter the public mood or the political
consequence.
Some have said that the false testimony given by the
President relating to sex should be excused, since as the
argument goes: ``Everyone lies about sex.'' I ask the Senate to
stop to think about the consequences of adopting that attitude.
Our sexual harassment laws would become unenforceable since
every sexual harassment lawsuit is about sex and much of
domestic violence litigation is at least partly about sex. If
defendants in these types of suits are allowed to lie about
sex, justice cannot be done, and many victims, mostly women,
will be denied justice.
Mr. Chief Justice, the House has adopted two articles of
impeachment against President William Jefferson Clinton. Each
meets the standard of ``high crimes and misdemeanors'' and each
is amply supported by the evidence.
Article I impeaches the President for ``perjurious, false
and misleading'' testimony during his August 17, 1998,
appearance before a grand jury of the United States in four
areas.
First, the nature and details of his relationship with a
subordinate government employee;
Second, prior perjurious, false and misleading testimony he
gave in a federal civil rights action brought against him;
Third, prior false and misleading statements he allowed his
attorney to make to a federal judge in that federal civil
rights lawsuit;
Fourth, his corrupt efforts to influence the testimony of
witnesses and to impede the discovery of evidence in that civil
rights action.
The evidence will clearly show that President Clinton's
false testimony to the grand jury was not a single or isolated
instance which could be excused as a mistake but, rather, a
comprehensive and calculated plan to prevent the grand jury
from getting the accurate testimony in order to do its job.
Furthermore, it is important to dispel the notion that the
President's false testimony before the grand jury simply
relates to details of the relationship between President
Clinton and Ms. Lewinsky. These charges only make up a small
part of article I. The fact is, the evidence will show that
President Clinton made numerous perjurious, false and
misleading statements regarding his efforts to obstruct
justice.
Before describing what the evidence in support of article I
shows, it is also important to clearly demonstrate that the
Senate has already decided that making false statements under
oath to a federal grand jury is an impeachable offense.
The last impeachment decided by the Senate, that of United
States District Judge Walter L. Nixon, Jr., of the United
States District Court for the Southern District of Mississippi,
involved the Judge's making false statements under oath to a
federal grand jury, precisely the same charges contained in
article I against President Clinton. Following an unanimous 417
to 0 vote in the House, the Senate conducted a full trial and
removed Judge Nixon from office on the two articles charging
false statements to a grand jury by votes of 89 to 8 and 78 to
19. The Senate was clear that the specific misconduct, that is,
making false statements to a grand jury, which was the basis
for the Judge's impeachment, warranted his removal from office
and the Senate proceeded to do just that.
These votes, a little more than nine years ago on November
3, 1989, set a clear standard that lying to a grand jury is
grounds for removal from office. To set a different standard in
this trial is to say that the standard for judicial
truthfulness during grand jury testimony is higher than that of
presidential truthfulness.
That result would be absurd. The truth is the truth and a
lie is a lie. There cannot be different levels of the truth for
judges than for presidents.
The President's perjurious, false and misleading statements
regarding his relationship with Ms. Lewinsky began early in his
grand jury testimony. These statements included parts of the
prepared statement the President read at the beginning of his
testimony. He referred or reverted to his statement at least 19
times during the course of his testimony.
Further, the evidence will show the President made other
false statements to the grand jury regarding the nature and
details of his relationship with Ms. Lewinsky at times when he
did not refer to his prepared statement.
Second, the evidence will show that the President piled
perjury upon perjury when he provided perjurious, false and
misleading testimony to the grand jury concerning prior
perjurious, false and misleading testimony given in Ms. Paula
Jones' case.
On two occasions, the President testified to the grand jury
that his deposition testimony was the truth, the whole truth,
and nothing but the truth, and that he was required to give a
complete answer to each question asked of him during the
deposition. That means he brought to the grand jury his
untruthful answers to questions at the deposition.
Third, the evidence will show the President provided
perjurious, false and misleading testimony to a Federal grand
jury regarding his attorney's use of an affidavit he knew to be
false during the deposition in Ms. Paula Jones' case before
Federal Judge Susan Webber Wright.
The President denied that he even paid attention to Mr.
Bennett's use of the affidavit. The evidence will show he made
this denial because his failure to stop his attorney from
utilizing a false affidavit at a deposition would constitute
obstruction of justice. The evidence will also show the
President did not admit that Mr. Bennett's statement was false
because to do so would be to admit that he had perjured himself
earlier that day during the grand jury testimony, as well as at
the deposition.
Fourth, the evidence will show that the President provided
perjurious, false and misleading testimony to the grand jury
concerning his corrupt efforts to influence the testimony of
witnesses and to impede the discovery of evidence in Ms. Paula
Jones' civil rights action.
The evidence will show that these statements related to at
least four areas:
First, his false statements relating to gifts exchanged
between the President and Ms. Lewinsky. The subpoena served on
Ms. Lewinsky in the Jones case required her to produce each and
every gift she had received from the President. These gifts
were not turned over as required by the subpoena but ended up
under Ms. Betty Currie's bed in a sealed container. The
President denied under oath that he directed Ms. Currie to get
the gifts, but the evidence will show that Ms. Currie did call
Ms. Lewinsky about them and that there was no reason for her
doing so unless directed by the President.
Second, the President made perjurious, false and misleading
statements to the grand jury regarding his knowledge that the
Lewinsky affidavit submitted at the deposition was untrue. The
evidence will show that the President testified falsely on this
issue on at least three separate occasions during his grand
jury testimony. He also provided false testimony on whether he
encouraged Ms. Lewinsky to file a false affidavit.
Third, the President made false and misleading statements
to the grand jury by reciting a false account of the facts
regarding his interactions with Ms. Lewinsky and Ms. Currie,
who was a potential witness against him in Ms. Jones' case.
The record reflects the President tried to coach Ms. Currie
to recite inaccurate answers to possible questions should she
be called as a witness. The evidence will show the President
testified to the grand jury that he was trying to figure out
what the facts were, but in reality the conversation with Ms.
Currie consisted of a number of very false and misleading
statements.
Finally, the President made perjurious, false and
misleading statements to aides regarding his relationship with
Ms. Lewinsky. In his grand jury testimony, the President tried
to have it both ways on this issue. He testified that his
statements to aides were both true and misleading--true and
misleading.
The evidence will show that he met with four aides who
would later be called to testify before the grand jury. They
included Mr. Sidney Blumenthal, Mr. John Podesta, Mr. Erskine
Bowles, and Mr. Harold Ickes. Each of them related to the grand
jury the untruths they had been told by the President. I have
recited this long catalogue of false statements to show that
the President's false statements to the grand jury were neither
few in number nor isolated but, rather, pervaded his entire
testimony.
There can be no question that the President's false
statements to the grand jury were material to the subject of
the inquiry. Grand juries are utilized to obtain sworn
testimony from witnesses to determine whether a crime has been
committed. The Attorney General and the Special Division of the
United States Court of Appeals for the District of Columbia
Circuit appointed an independent counsel pursuant to law and
added areas of inquiry because they believed there was evidence
that the President may have committed crimes. Grand jury
testimony relevant to the criminal probe is always material to
the issue of whether someone has committed a crime.
Based upon the precedent in the Judge Nixon impeachment,
the law, the facts, and the evidence, if you find the President
made perjurious, false and misleading statements under oath to
the grand jury, I respectfully submit that your duty will be to
find William Jefferson Clinton guilty with respect to article I
and to remove him from office.
Article II impeaches William Jefferson Clinton for
preventing, obstructing, and impeding the administration of
justice in the Jones case by either directly or through
subordinates and agents engaging in a scheme to delay, impede,
cover up, and conceal the existence of evidence and testimony
relating to Ms. Jones' Federal civil rights action.
As in the case of article I, the President's direct and
indirect actions were not isolated mistakes but were
multifaceted actions specifically designed to prevent Ms. Paula
Jones from having her day in court.
While the Senate determined in the Judge Nixon trial that
the making of false statements to a Federal grand jury
warranted conviction and removal from office, no impeachment on
an obstruction of justice charge has ever reached the Senate.
Therefore, this article is a matter of first impression.
However, the impeachment inquiry of the House Judiciary
Committee into the conduct of President Richard Nixon, as well
as the relevant Federal criminal statutes, clearly shows
President Clinton's actions to be within the definition of
``high crimes and misdemeanors'' contained in the Constitution.
The first article of impeachment against President Nixon
approved by the Judiciary Committee charged Mr. Nixon with
``engag(ing) personally and through his subordinates and agents
in a course of conduct or plan designed to delay, impede and
obstruct the investigation of such unlawful entry; to cover up,
conceal and protect those responsible and to conceal the
existence and scope of other unlawful activities.''
The article charged that the implementation of the plan
included nine separate areas of misconduct. Included among
these were, one, making or causing to be made false and
misleading statements to investigative officers and employees
of the United States; two, withholding relevant and material
evidence from such persons; three, approving, condoning,
acquiescing in and counseling witnesses with respect to the
giving of false and misleading statements to such persons as
well as in judicial and congressional proceedings.
History shows us that President Nixon's resignation was the
only act that prevented the Senate from voting on this article,
and that the President's conviction and removal from office
were all but certain.
There are two sections of the Federal Criminal Code placing
penalties on those who obstruct justice. Title 18, United
States Code, section 1503, punishes ``whoever . . . corruptly,
or by threats or force . . . obstructs, or impedes or endeavors
to influence, obstruct or impede the due administration of
justice.''
The courts have held that this section relates to pending
judicial process, which can be a civil action. Ms. Jones' case
fits that definition at the time of the President's actions as
alleged in article II, as does the Office of Independent
Counsel's investigation.
Title 18, United States Code, section 1512, punishes,
``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 . . . (or)
cause or induce any person to . . . withhold testimony, or
withhold a record, document, or other object from an official
proceeding. . . .''
The evidence will show that President Clinton's actions
constituted obstruction of justice in seven specific instances
as alleged in article II. Paragraph one alleges that on or
about December 17, 1997, the President encouraged Ms. Lewinsky,
who would be subpoenaed as a witness in Ms. Jones' case two
days later, to execute a sworn affidavit that he knew would be
perjurious, false, and misleading.
The evidence will show the President's actions violated
both Federal criminal obstruction statutes.
Second, article II alleges that on or about that same day,
the President corruptly encouraged Ms. Lewinsky to give
perjurious, false, and misleading testimony if and when called
to testify personally in that proceeding. Ms. Lewinsky, on the
witness list at that time, could have been expected to be
required to give live testimony in the Jones case and in fact
she was subsequently subpoenaed for a deposition in that case.
The evidence will show the President's actions violated
both Federal criminal obstruction statutes.
Third, article II alleges on or about December 28, 1997,
the President corruptly engaged in, encouraged, or supported a
scheme to conceal evidence which had been subpoenaed in Ms.
Jones' civil rights case. He did so by asking Ms. Betty Currie
to retrieve evidence from Ms. Lewinsky that had been subpoenaed
in the case of Jones v. Clinton.
The evidence will show the President's actions violated the
second Federal criminal obstruction statute.
Fourth, article II alleges that beginning on or about
December 7, 1997, and continuing through and including January
14, 1998, the President intensified and succeeded in an effort
to secure job assistance to Ms. Lewinsky in order to corruptly
prevent her truthful testimony in the Jones case at a time when
her truthful testimony would have been harmful to him.
While Ms. Lewinsky had sought employment in New York City
long before the dates in question, helping her find a suitable
job was clearly a low priority for the President and his
associates until it became obvious she would become a witness
in the Jones case. The evidence will clearly show an
intensification of that effort after her name appeared on the
witness list. This effort was ultimately successful and the
evidence will show that the President's actions violated both
Federal obstruction statutes.
Fifth, article II alleges on January 17, 1998, the
President corruptly allowed his attorney to make false and
misleading statements to Judge Wright characterizing the
Lewinsky affidavit in order to prevent questioning deemed
relevant by the judge. The President's attorney, Robert
Bennett, subsequently acknowledged such false and misleading
statements in a communication to Judge Wright.
The evidence will show the President's actions clearly
violate the second Federal criminal obstruction statute.
Sixth, article II alleges that on or about January 18, 20,
and 21, 1998, the President related a false and misleading
account of events relevant to Ms. Jones' civil rights suit to
Ms. Betty Currie, a potential witness in the proceeding, in
order to corruptly influence her testimony.
The evidence will show that President Clinton attempted to
influence the testimony of Ms. Betty Currie, his personal
secretary, by coaching her to recite inaccurate answers to
possible questions that might be asked of her if called to
testify in Ms. Paula Jones' case. The President did this
shortly after he had been deposed in the civil action.
During the deposition, he frequently referred to Ms.
Currie, and it was logical that, based upon his testimony, Ms.
Currie would be called as a witness.
The evidence will show that two hours after the completion
of the deposition, the President called Ms. Currie to ask her
to come to the office the next day, which was a Sunday.
When Ms. Currie testified to the grand jury, she
acknowledged the President made a series of leading statements
or questions and concluded that the President wanted her to
agree with him.
The evidence will show the President's actions violated
both statutes but, most particularly, section 1512.
In United States v. Rodolitz, 786 F.2d 77 at 82 (2d Cir.
1986), cert. denied, 479 U.S. 826 (1986), the United States
Court of Appeals for the Second Circuit said,
The 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 believes the story and testifies to it before the grand
jury.
If the President's actions do not fit this example, I'm at
a loss to know what actions do.
Seventh, and last, article II alleges on or about January
21, 23, and 26, 1998, the President made false and misleading
statements to potential witnesses in a Federal grand jury
proceeding in order to corruptly influence this testimony of
those witnesses. The article further alleges these false and
misleading statements were repeated by the witnesses to the
grand jury, causing the grand jury to receive false and
misleading information.
The evidence will show that these statements were made to
Presidential aides Mr. Sidney Blumenthal, Mr. Erskine Bowles,
Mr. John Podesta and Mr. Harold Ickes. They all testified to
the grand jury. By his own admission seven months later, on
August 17, 1998, during his sworn grand jury testimony, the
President said that he told a number of aides that he did not
have an affair with Ms. Lewinsky and did not have sex with her.
He told one aide, Mr. Sidney Blumenthal, that Ms. Monica
Lewinsky came on to him and he rebuffed her. President Clinton
also admitted that he knew these aides might be called before
the grand jury as witnesses. The evidence will show they were
called; they related the President's false statements to the
grand jury; and that by the time the President made his
admission to the grand jury the damage had already been done.
This is a classic violation of 18 U.S.C. section 1512.
The seven specific allegations of obstruction of justice
contained in article II were designed to prevent the judicial
branch of government, a separate and coequal branch, from doing
its work in Ms. Paula Jones' lawsuit. Based upon the allegation
of article I against President Nixon in 1974, as well as
repeated and calculated violations of two key criminal
obstruction statutes, William Jefferson Clinton committed an
impeachable offense.
In article II, the evidence is conclusive that President
Clinton put himself above the law in obstructing justice, not
once, not just a few times, but as a part of a extensive scheme
to prevent Ms. Jones from obtaining the evidence she thought
she needed to prove her civil rights claims.
Complying with the law is the duty of all parties to
lawsuits and those who are required to give truthful testimony.
A defendant in a Federal civil rights action does not have the
luxury to choose what evidence the court may consider. He must
abide by the law and the rules of procedure. William Jefferson
Clinton tried to say that the law did not apply to him during
his term of office in civil cases were concerned. He properly
lost that argument in the Supreme Court in a unanimous
decision.
Even though the Supreme Court decided that the President
wasn't above the law and that Ms. Jones' case could proceed,
William Jefferson Clinton decided--and decided alone--to act as
if the Supreme Court had never acted and that Judge Wright's
orders didn't apply to him. What he did was criminal, time and
time again. These criminal acts were in direct conflict with
the President's obligation to take care that the laws be
faithfully executed.
Based upon the repeated violations of Federal criminal law,
its effect upon the courts to find the truth, and the
President's duty to take care that the laws be faithfully
executed, if you find that the President did, indeed, obstruct
the administration of justice through his acts, I respectfully
submit your duty will be to find William Jefferson Clinton
guilty with respect to article II and to remove him from
office.
It is truly sad when the leader of the greatest nation in
the world gets caught up in a series of events where one
inappropriate and criminal act leads to another and another and
another.
Even sadder is that the President himself could have
stopped this process simply by telling the truth and accepting
the consequences of his prior mistakes. At least six times
since December 17, 1997, William Jefferson Clinton could have
told the truth and suffered the consequences. Instead, he chose
lies, perjury, and deception. He could have told the truth when
he first learned that Ms. Lewinsky would be a witness in the
Jones case. He could have told the truth at his civil
deposition. He could have told the truth to Betty Currie. He
could have told the truth when the news media first broke the
story of his affair. He could have told the truth to his aides
and cabinet. He could have told the truth to the American
people. Instead, he shook his finger at each and every American
and said, ``I want you to listen to me,'' and proceeded to tell
a straight-faced lie to the American people.
Finally, he had one more opportunity to tell the truth. He
could have told the truth to the grand jury. Had he told the
truth last January, there would have been no independent
counsel investigation of this matter, no grand jury appearance,
no impeachment inquiry, no House approval of articles of
impeachment, and we would not be here today fulfilling a
painful but essential constitutional duty. Instead, he chose
lies and deception, despite warnings from friends, aides, and
members of the House and Senate that failure to tell the truth
would have grave consequences.
When the case against him was being heard by the House
Judiciary Committee, he sent his lawyers, who did not present
any new evidence to rebut the facts and evidence sent to the
House by the Independent Counsel. Rather, they disputed the
Committee's interpretation of the evidence by relying on
tortured, convoluted, and unreasonable interpretations of the
President's words and actions.
During his presentation to the House Judiciary Committee,
the President's very able lawyer, Charles Ruff, was asked
directly: Did the President lie during his sworn grand jury
testimony?
Mr. Ruff could have answered that question directly. He did
not, and his failure to do so speaks a thousand words.
Is there not something sacred when a witness in a judicial
proceeding raises his or her right hand and swears before God
and the public to tell the truth, the whole truth, and nothing
but the truth? Do we want to tell the country that its leader
gets a pass when he is required to give testimony under oath?
Should we not be concerned about the effect of allowing
perjurious, false, and misleading statements by the President
to go unpunished on the truthfulness of anyone's testimony in
future judicial or legislative proceedings? What do we tell the
approximately 115 people now in Federal prison for the crime of
perjury?
The answers to all these questions ought to be obvious.
As elected officials, our opinions are frequently shaped by
constituents telling us their own stories. Let me tell you one
related to me about the poisonous results of allowing false
statements under oath to go unpunished.
Last October while the Starr report was being hotly
debated, one circuit court judge for Dodge County, WI,
approached me on the street in Mayville, WI. He said that some
citizens had business in his court and suggested that one of
them take the witness stand and be put under oath to tell the
truth. The citizen then asked if he could tell the truth ``just
like the President.''
How many people who have to come to court to testify under
oath about matters they would like to keep to themselves think
about what that citizen asked Judge John Storck? How will the
courts be able to administer the ``equal justice under law'' we
all hold so dear if we do not enforce the sanctity of that oath
even against the President of the United States?
When each of us is elected or chosen to serve in public
office, we make a compact with the people of the United States
of America to conduct ourselves in an honorable manner,
hopefully setting a higher standard for ourselves than we
expect of others. That should mean we are careful to obey all
the laws we make, execute, and interpret.
There is more than truth in the words, ``A public office is
a public trust.''
When someone breaks that trust, he or she must be held
accountable and suffer the consequences for the breach. If
there is no accountability, that means a President can set
himself above the law for 4 years, a Senator for 6, a
Representative for 2, and a judge for life. That, Mr. Chief
Justice, poses a far greater threat to the liberties guaranteed
to the American people by the Constitution than anything
imaginable.
For the past 11 months, the toughest questions I have had
to answer have come from parents who wanted to know what to
tell their children about what President Clinton did.
Every parent tries to teach their children to know the
difference between right and wrong, to always tell the truth,
and when they make mistakes, to take responsibility for them,
and to face the consequences of their actions.
President Clinton's actions at every step since he knew Ms.
Lewinsky would be a witness in Ms. Jones' case have been
completely opposite to the values parents hope to teach their
children.
But being a poor example isn't grounds for impeachment.
Undermining the rule of law is. Frustrating the court's ability
to administer justice turns private misconduct into an attack
upon the ability of one of the three branches of our government
to impartially administer justice. This is a direct attack upon
the rule of law in our country and a very public wrong that
goes to the constitutional workings of our government and its
ability to protect the civil rights of even the weakest
American.
What is on trial here is the truth and the rule of law.
Failure to bring President Clinton to account for his serial
lying under oath and preventing the courts from administering
equal justice under law will cause a cancer to be present in
our society for generations.
Those parents who ask the questions should be able to tell
their children that even if you are the President of the United
States, if you lie when sworn to tell the truth, the whole
truth and nothing but the truth, you will face the consequences
of that action even when you won't accept the responsibility
for it.
How those parents will answer those questions is up to the
U.S. Senate.
While how today's parents answer those questions is
important, equally important is what parents tell their
children in the generations to come about the history of our
country and what has set our government in the United States of
America apart from the rest of the world.
Above the President's dais in this Senate chamber appears
our national motto: ``E pluribus unum''--``out of many, one.''
When that motto was adopted more than 200 years ago, the First
Congress referred to how 13 separate colonies turned themselves
into one united nation.
As the decades have gone by, that motto has taken an
additional meaning. People of all nationalities, faiths,
creeds, and values have come to our shores, shed their
allegiances to their old countries and achieved their dreams to
become Americans.
They came here to flee religious persecution, to escape
corrupt, tyrannical and oppressive governments, and to leave
behind the economic stagnation and endless wars of their
homelands.
They came here to be able to practice their faiths as they
saw fit--free of government dictates and to be able to provide
better lives for themselves and their families by the sweat of
their own brows and the use of their own intellect.
But they also came here because they knew America has a
system of government where the Constitution and laws protect
individual liberties and human rights. Everyone--yes,
everyone--can argue that this country has been a beacon for the
individual citizen's ability to be what he or she can be.
From countries where the rulers ruled at the expense of the
people, they fled to America where the leaders were expected to
govern for the benefit of the people.
Throughout the years, America's leaders have tried to earn
the trust of the American people, not by their words but by
their actions.
America is a place where government exists by the consent
of the governed, and that means our Nation's leaders must earn
and re-earn the trust of the people with everything they do.
Whenever an elected official stumbles, that trust is eroded
and public cynicism goes up. The more cynicism that exists
about government, its institutions, and those chosen to serve
in them, the more difficult the job is for those who are
serving.
That's why it is important--yes, vital--that when a cancer
exists in the body politic, our job--our duty--is to excise it.
If we fail in our duty, I fear the difficult and dedicated work
done by thousands of honorable men and women elected to serve
not just here in Washington but in our State capitals, city
halls, courthouses and school board rooms, will be swept away
in a sea of public cynicism. We must not allow the beacon of
America to grow dim or the American dream to disappear with
each waking morning.
In 1974, the Congress did its painful public duty when the
President of the United States broke the public trust.
During the last decade, both Houses impeached and removed
three Federal judges who broke their trust with the people.
During the last 10 years, the House of Representatives
disciplined two Speakers for breaking the rules and their trust
with the public.
Less than 6 years ago, this honorable Senate did the same
to a senior Senator whose accomplishments were widely praised.
In each case, Congress did the right thing to help restore
the vital trust upon which our Government depends. It wasn't
easy, nor was it always popular, but Congress did the right
thing. Now this 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--a trust contained in the
Presidential oath put into the Constitution by the framers--an
oath that no other Federal official must take, an oath to
ensure that the laws be faithfully executed.
How the Senate decides the issues to be presented in this
trial will determine the legacy we pass to future generations
of Americans.
The Senate can follow the legacy of those who have made
America what it is.
The Senate can follow the legacy of those who put their
``lives, fortunes and Sacred Honor'' on the line when they
signed the Declaration of Independence.
The Senate can follow the legacy of the framers of the
Constitution whose preamble states that one of its purposes is
``to establish justice.''
The Senate can follow the legacy of James Madison and the
Members of the First Congress who wrote and passed a Bill of
Rights to protect and preserve the liberties of the American
people.
The Senate can follow the legacy of those who achieved
equal rights for all Americans during the 1960s in Congress, in
the courts, on the streets, in the buses, and at the lunch
counters.
The Senate can follow the legacy of those who brought
President Nixon to justice during Watergate in the belief that
no President can place himself above the law.
The Senate can follow the legacy of Theodore Roosevelt who
lived and governed by the principle that no man is above the
law.
Within the walls of the Capitol and throughout this great
country there rages an impassioned and divisive debate over the
future of this Presidency. This Senate now finds itself in the
midst of the tempest. An already immense and agonizing duty is
made even more so because the whims of public opinion polls,
the popularity and unpopularity of individuals, even questions
over the strength of our economy, risk subsuming the true
nature of this grave and unwelcome task.
We have all anguished over the sequence of events that have
led us to this, the conclusive stage in the process. We have
all identified in our own minds where it could have and should
have stopped, but we have ended up here, before the Senate of
the United States, where you, the Senators, will have to render
judgment based upon the facts.
A scientist in search of the basic nature of a substance
begins by boiling away what is not of the essence. Similarly,
the Senate will sift through the layers of debris that shroud
the truth. The residue of this painful and divisive process is
bitter, even poisonous at times. But beneath it lies the
answer. The evidence will show that at its core, the question
over the President's guilt and the need for his conviction will
be clear because at its core, the issues involved are basic
questions of right versus wrong--deceptive, criminal behavior
versus honesty, integrity, and respect for the law.
The President engaged in a conspiracy of crimes to prevent
justice from being served. These are impeachable offenses for
which the President should be convicted. Over the course of the
days and weeks to come, we, the House managers, will endeavor
to make this case.
May these proceedings be fair and thorough. May they embody
our highest capacity for truth and mutual respect. With these
principles as our guides, we can begin with the full knowledge
our democracy will prevail and that our Nation will emerge a
stronger, better place.
Our legacy now must be not to lose the trust the people
should have in our Nation's leaders.
Our legacy now must be not to cheapen the legacies left by
our forebears.
Our legacy must be to do the right thing based upon the
evidence.
For the sake of our country, the Senate must not fail.
Thank you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Bryant.
Mr. Manager BRYANT. Mr. Chief Justice, Members of the
Senate, and my distinguished colleagues from the bar, I am Ed
Bryant, the Representative from the Seventh District of
Tennessee. During this portion of the case, I, along with
Representative Asa Hutchinson of Arkansas, Representative James
Rogan of California, and Representative Bill McCollum of
Florida, will present the factual elements of this case. Our
presentation is a very broad roadmap with which, first, I will
provide the history and background of the parties, followed by
Mr. Hutchinson and Mr. Rogan, who will review the articles of
impeachment. Mr. McCollum will close with a summation of these
facts and evidence.
It is our intent to proceed in a chronological fashion,
although by necessity there will be some overlap of the facts
and circumstances arising from what I have called ``the four-
way intersection collision'' of President William Jefferson
Clinton, Ms. Paula Corbin Jones, Monica Lewinsky, and the U.S.
Constitution.
As a further preface to my remarks, permit me to say that
none of us present here today in this hallowed Chamber relishes
doing this job before us. But we did not choose to be involved
in that reckless misconduct, nor did we make those reasoned and
calculated decisions to cover up that misconduct which
underlies this proceeding. However, this collision at the
intersection, if you will, of the President, Ms. Jones, and Ms.
Lewinsky, is not in and of itself enough to bring us together
today. No. Had truth been a witness at this collision and
prevailed, we would not be here. But when it was not present,
even under an oath to tell the truth, the whole truth and
nothing but the truth in a judicial matter, the impact of our
Constitution must be felt. Hence, we are together today--to do
our respective duties.
By voting these articles of impeachment, the House is not
attempting to raise the standard of conduct to perfection for
our political leadership. Such a person does not walk the world
today. Everyone falls short of this mark every day.
Political life is not so much about how an individual fails
but, rather, how the person reacts to that failure. For
example, a person campaigning for a political office admits
wrongdoing in his past and says he will not do that again. Most
people accept that commitment. He is elected. Thereafter, he
repeats this wrongdoing and is confronted again. What does he
do? He takes steps to cover up this wrongdoing by using his
workers and his friends. He lies under oath in a lawsuit which
is very important to the person he is alleged to have harmed.
He then takes a political poll as to whether he should tell the
truth under oath. The poll indicates the voters would not
forgive him for lying under oath. So he then denies the truth
in a Federal grand jury. If this person is the President of the
United States, the House of Representatives would consider
articles of impeachment. It did and voted to impeach this
President.
But do not let it be argued in these chambers that ``we are
not electing Saints; we are electing Presidents.'' Rather, let
it be said that we are electing people who are imperfect and
who have made mistakes in life but who are willing to so
respect this country and the Office of the President that he or
she will now lay aside their own personal shortcomings and have
the inner strength to discipline themselves sufficiently that
they do not break the law which they themselves are sworn to
uphold.
Every trial must have a beginning and this trial begins on
a cold day in January 1993.
[Text of videotape presentation:]
I, William Jefferson Clinton, 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. So help me
God.
Mr. Manager BRYANT. I had expected a video portion, but all
of you heard the audio portion. As you can hear from the audio
portion--perhaps some of you can see--William Jefferson Clinton
placed his left hand on the Bible in front of his wife, the
Chief Justice, and every American watching that day and
affirmatively acknowledged his oath of office. On that very day
and again in January of 1997, the President joined a privileged
few; he became only the 42nd person in our Nation to make the
commitment to ``faithfully execute'' the office of the
President and to ``preserve, protect and defend the
Constitution.'' He has the complete executive power of the
Nation vested in him by virtue of this Constitution.
As we progress throughout the day, I would ask that you be
reminded of the importance of this oath. Before you is a copy
of it and certainly available as anyone would like to look at
it on breaks.
William Jefferson Clinton is a man of great distinction. He
is well-educated, with degrees from Georgetown University and
Yale Law School. He has taught law school courses to aspiring
young lawyers. He served as Governor and Attorney General for
the State of Arkansas, enforcing the laws of that state. The
President now directs our great Nation. He sets our agenda and
creates national policy in a very public way. He is in fact a
role model for many.
President Clinton also serves as the Nation's chief law
enforcement officer.
It is primarily in this capacity that the President
appoints Federal judges. Within the executive branch, he
selected Attorney General Janet Reno and appointed each of the
93 U.S. attorneys who are charged with enforcing all Federal,
civil, and criminal law in Federal courthouses from Anchorage,
AK, to Miami, FL, and from San Diego, CA, to Bangor, ME.
Before you we have another chart which shows the schematics
of the Department of Justice and how it is under the direct
control of the President through his Cabinet, Attorney General
and then down to such functions as the Federal Bureau of
Investigation, the Drug Enforcement Administration,
Immigration, U.S. Marshals Office, Bureau of Prisons, and so
many other very important legal functions this Federal
Government performs.
As protectors of our Constitution, the U.S. attorneys and
their assistants prosecute more than 50,000 cases per year.
Through these appointments and his administration's
policies, the President establishes the climate in this country
for law and order. Each and every one of these 50,000 cases
handled by his U.S. attorneys is dependent upon the parties and
witnesses telling the truth under oath. Equally as important in
these proceedings is that justice not be obstructed by
tampering with witnesses nor hiding evidence.
Quoting from the November 9, 1998 Constitution Subcommittee
testimony of attorney Charles J. Cooper, a Washington, DC
attorney, he states:
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
upon society itself, whether or not committed in connection
with the exercise of official government powers. Before the
framing of our Constitution and since, our law has consistently
recognized that perjury primarily and directly injures the body
politic, for it subverts the judicial process and this strikes
at the heart of the rule of law itself.
Professor Gary McDowell, the Director at the Institute for
United States Studies at the University of London, also
testified in the same hearing in reference to the influential
writer William Paley, and this is also in chart form for those
who would like to review it later. Paley saw the issue of oaths
and perjury as one of morality as well as law. Because a
witness swears that he will speak the truth, the whole truth
and nothing but the truth, a person under oath cannot cleverly
lie and not commit perjury. If the witness conceals any truth,
Paley writes, that relates to the matter in adjudication, that
is as much a violation of the oath as to testify a positive
falsehood. Shame or embarrassment cannot justify his
concealment of truth; linguistic contortions with the words
used cannot legitimately conceal a lie or, if under oath,
perjury.
Professor McDowell concludes with a quote from Paley which
accurately provides, I believe, the essence of a lie or
perjurious statement:
It is willful deceit that makes the lie; and we willfully
deceive, where our expressions are not true in the sense in
which we believe the hearer apprehends them.
Neither has this U.S. Senate been silent on the issue of
perjury. You have rightfully recognized through previous
impeachment proceedings the unacceptable nature of a high
government official lying under oath, even in matters initially
arising from what some would argue here are merely personal. In
1989, many of you present today, using the very same standard,
which is section 4 of the Constitution, which is set forth
there, for impeaching a Federal judge or the President,
actually voted in support of a conviction and the removal of a
U.S. district judge.
Indeed, truth-telling is the most important judicial
precept underpinning our great system of justice, a system
which permits the courthouse doors to be open to all people,
from the most powerful man in America to a young woman from
Arkansas.
On May 6, 1994, Paula Corbin Jones attempted to open that
courthouse door when she filed a Federal sexual harassment
lawsuit against President Clinton. The case arose from a 1991
incident when she was a State employee and he was the Governor.
Further details of the underlying allegations are not important
to us today, but Ms. Jones' pursuit for the truth is worth a
careful study.
The parties first litigated the question of whether Ms.
Jones' lawsuit would have to be deferred until after the
President left office. The Supreme Court unanimously rejected
the President's contention and allowed the case to proceed
without further delay.
Ms. Jones sought and appropriately won ``her day in
court.'' Incumbent with this victory, however, was the
reasonable expectation that President Clinton would tell the
truth.
After all, this was the most important case in the whole
world to Paula Corbin Jones.
Notwithstanding this, the fact didn't happen that the
President told the truth. Even after the President was ordered
to stand trial, pursuing the truth for Ms. Jones remained an
elusive task. The evidence will indicate that President Clinton
committed perjury and orchestrated a variety of efforts to
obstruct justice, all of which--all of which--had the effect of
preventing the discovery of the truth in the Paula Jones case.
During the discovery phase, Judge Susan Webber Wright of
the U.S. District Court for the Eastern District Court of
Arkansas ordered the President to answer certain historical
questions about his sexual relations with either State or
Federal employees.
In part, Judge Wright said:
The Court finds, therefore, that the plaintiff is 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.
Judge Wright validated Ms. Jones' right to use this
accepted line of questioning in sexual harassment litigation.
More often than not, these cases involve situations where ``he
said/she said,'' and they produce issues of credibility and are
often done in private. Because of this, they are really
difficult for a victim to prove.
Such standard questions are essential in establishing
whether the defendant has committed the same kind of acts
before or since--in other words, a pattern or practice of
harassing conduct. The existence of such corroborative evidence
or the lack thereof is likely to be critical in these types of
cases. Both the Equal Employment Opportunity Commission
guidelines and the Federal Rules of Evidence permit this type
of evidence. In short, a defendant's sexual history, at least
with respect to other employees, is ordinarily discoverable in
a sexual harassment lawsuit.
To not expect a defendant in this type of litigation to
speak the truth creates, in its worst case, a very real danger
to the entire area of sexual harassment law which would be
irreparably damaged and, in its best case, sends out a very
wrong message. As such, the will and intent of Congress with
regard to providing protection against sexual harassment in the
workplace would be effectively undermined.
The ``pattern and practice'' witnesses whom Paula Corbin
Jones was entitled to discover should have included the name of
Monica Lewinsky. But before I discuss the Ms. Lewinsky matter,
I want to offer three matters of cause to each of you as jurors
in this very important matter.
No. 1, I do not intend to discuss the specific details of
the President's encounters with Ms. Lewinsky. However, I do not
want to give the Senate the impression that those encounters
are irrelevant or lack serious legal implications. In fact,
every day in the courtrooms all across America, victims of
sexual harassment, of rape, assault, and abuse must testify in
many public cases in order to vindicate their personal rights
and society's right to be free of these intolerable acts.
The President's lies about his conduct with Ms. Lewinsky in
the Oval Office also make these unseemly details highly
relevant. If you are to accept the President's version about
the relationship, you must in effect say to Ms. Lewinsky that
she is the one who is disregarding the truth. But beyond this,
his denials also directly contradict Ms. Lewinsky's testimony,
not only directly contradict Ms. Lewinsky's testimony but also
contradict eight of her friends and the statements by two
professional counselors with whom she contemporaneously shared
details of her relationship. By law, their testimony may serve
as proper and admissible evidence to corroborate her side of
this important story.
No. 2, the evidence and testimony in this proceeding must
be viewed as a whole; it cannot be compartmentalized. Please do
not be misled into considering each event in isolation and then
treating it separately. Remember, events and words that may
seem innocent or even exculpatory in a vacuum may well take on
a sinister or even criminal connotation when observed in the
context of the whole plot.
For example, we all agree that Ms. Lewinsky testified, ``No
one ever told me to lie . . .'' When considered alone, this
statement would seem exculpatory. In the context of other
evidence, however, we see that this one statement gives a
misleading inference. Of course no one said, ``Now, Monica, you
go down there and lie.'' They didn't have to. Based upon their
previous spoken and even unspoken words, Ms. Lewinsky knew what
was expected of her. Surely, if the President were to come to
the Senate floor and give testimony during this proceeding, he
would not tell you that he honestly expected her to tell the
truth about their personal relationship. After all, the purpose
of her filing the false affidavit was to avoid testifying in
the Jones case and discussing the nature of their relationship.
If she had told the truth in that affidavit instead of lying,
she would have been invited to testify immediately, if not
sooner.
No. 3, throughout our presentation of the facts, especially
as it relates to the various illegal acts, I ask you to pay
particular attention to what I call the big picture. Look at
the results of those various acts as well as who benefited.
Please make a mental note now, if you can, and ask yourself
always as you look at each one of these illegal acts that are
presented to you: A. What was the result of that illegal act?
B. Who benefited from that illegal act?
I believe you will find that the evidence will show that
while the President's ``fingerprints'' may not be directly on
the evidence proving these illegal acts, the result of the acts
usually inures to the benefit of the President and the
President alone. Subordinates and friends alike are drawn into
this web of deceit. The President is insulated. Crimes are
committed. Justice is denied. The rule of law is suspended. And
this President is the beneficiary.
Some examples:
No. 1, subpoenaed evidence disappears from Ms. Lewinsky's
apartment and reappears under Ms. Currie's bed. What was the
result of that? Who had the benefit of that?
No. 2, Ms. Lewinsky files a false affidavit in the Jones
case. What is the result of filing that false affidavit and who
benefited from that?
No. 3, the President's attorney files the Lewinsky
affidavit, not knowing it was false, representing to the Court
that ``there is absolutely no sex of any kind in any manner,
shape, or form,'' while the President sits in the deposition
and does not object to that--very silently sits in the
deposition. What was the result of that? And who benefited from
that filing of the affidavit?
No. 4, and finally, Ms. Lewinsky, after months of job
searching in New York City, is offered a job with a Fortune 500
company in New York City within 48 hours of her signing this
false affidavit. Who shared the results of that with Ms.
Lewinsky? And who obtained the benefit of that?
Another example occurred in a meeting between the President
and Ms. Lewinsky in July--on July 4, 1997, to be specific--
when, as a part of their conversation, she mentioned she heard
someone from Newsweek was working on a story about Kathleen
Willey. The President has Ms. Lewinsky back for a visit on July
14, some 10 days later, following his return from an overseas
trip. She was questioned about the Willey story and
specifically if Linda Tripp had been her source.
Important to this point--important to this point--the
President then asked Ms. Lewinsky to try to persuade Ms. Tripp
to call White House Legal Counsel Bruce Lindsey. The President
told her to notify Ms. Currie the following day, ``without
getting into the details with her, even mentioning names with
her,'' whether Ms. Lewinsky had ``mission accomplished'' with
Linda. And as you will learn from Mr. Hutchinson, who will
follow me with his presentation, this is very similar to the
method of operation with another job the President requested be
done, which in that case succeeded with a ``mission
accomplished.'' I ask you to watch for that in Mr. Hutchinson's
presentation.
I want to now rewind the clock back to November of 1995. We
are here in Washington where Ms. Lewinsky has been working at
the White House since July of 1995.
As you continue to listen to the evidence, from this point
on November 15 forward, remember that Ms. Lewinsky and the
President were alone in the Oval Office workplace area at least
21 times. And I have a list of these, in chart form, beginning
in November of 1995 and going through 1996 and into the early
part of 1997, continuing through the year. During that time,
they had at least 11 of the so-called salacious encounters
there in the workplace at various times during the day and
night: Three in 1995, five in 1996, and three in 1997.
They also had in excess of 50 telephone conversations, most
of which appear to have been telephone calls to and from Ms.
Lewinsky's home. And I have a schedule of all these telephone
calls to show you, the 50-plus telephone calls. Also, they
exchanged some 64 gifts, with the President receiving 40 of
these gifts and Ms. Lewinsky receiving 24 of these gifts. And
again we have charts that reflect the receipt of both sets of
gifts. And again these charts will be here in the front, always
available for your inspection.
We also note that their affair began on November 15.
Interestingly, there is even a conflict here with the
President. According to Ms. Lewinsky, they had never spoken to
each other up to that point. Yet he asked an unknown intern
into the Oval Office and kissed her and then invited her back
to return later that day, when the two engaged in the first of
the 11 acts of misconduct.
The contradiction is in the statement that the President
relied upon in his grand jury testimony that has been
referenced earlier--very carefully worded--and that statement
the President gave in testimony before the grand jury about
meeting in this relationship. And he says, ``I regret that what
began as a friendship came to include this conduct . . .''
Almost as if it had evolved over a period of time. So there is
very clearly a conflict there.
As Ms. Lewinsky's internship was ending that year, she did
apply and receive a paying job with the White House Office of
Legislative Affairs. This position allowed her even more access
to the Oval Office area. She remained a White House employee
until April 1996 when she was reassigned to the Pentagon. The
proof will show that Ms. Evelyn Lieberman, Deputy Chief of
Staff at the time, believed that the transfer was necessary
because Ms. Lewinsky was so persistent in her efforts to be
near the President. Although Ms. Lieberman could not recall
hearing any rumors linking her and the President, she
acknowledged the President was vulnerable to these kinds of
rumors. While Ms. Lewinsky tried to return to work in the White
House, her absence was appreciated by those on the President's
staff who wanted to protect him.
After she began her job at the Pentagon in April, there was
no further physical contact with the President through the 1996
election and the remainder of that year. The two communicated
by telephone and on occasion saw each other at public events.
Their only attempt at a private visit in the Oval Office was
thwarted because Ms. Lieberman was nearby. On December 17, she
attended a holiday celebration at the White House and had a
photograph made shaking hands with the President.
However, the evidence establishes that in 1997, Ms.
Lewinsky was more successful in arranging visits to the White
House. This was because she used the discreet assistance of Ms.
Currie, the President's secretary, to avoid the likes of Ms.
Lieberman. Ms. Currie indicated she did not want to know the
details of this relationship. Ms. Currie testified on one
occasion when Ms. Lewinksy told her, ``As long as no one saw
us--and no one did--then nothing happened.'' Ms. Currie
responded, ``I don't want to hear it. Don't say any more. I
don't want to hear any more.''
Early on during their secret liaisons, the two concocted a
cover story to use if discovered. Ms. Lewinksy was to say she
was bringing papers to the President. The evidence will show
that statement to be false. The only papers that she ever
brought were personal messages having nothing to do with her
duties or the President's. The cover story plays an important
role in the later perjuries and the obstruction of justice.
Ms. Lewinksy stated that the President did not expressly
instruct her to lie. He did, however, suggest, indeed, the
``misleading'' cover story. When she assured him that she
planned to lie about the relationship, he responded
approvingly. On the frequent occasions that she promised that
she would ``always deny'' the relationship and ``always protect
him,'' for example, the President responded, in her
recollection, ``That's good,'' or something affirmative, not
``Don't deny it.''
The evidence will establish further that the two of them
had, in her words, ``a mutual understanding'' that they would
``keep this private, so that meant deny it and . . . take
whatever appropriate steps needed to be taken.'' When she and
the President both were subpoenaed in the Jones case, Ms.
Lewinksy anticipated that ``as we had on every other occasion
and every other instance of this relationship, we would deny
it.''
In his grand jury testimony, President Clinton acknowledged
that he and Ms. Lewinsky ``might have talked about what to do
in a nonlegal context'' to hide their relationship and that he
``might well have said'' that Ms. Lewinsky should tell people
she was bringing letters to him or coming to visit Ms. Currie.
He always stated that ``I never asked Ms. Lewinsky to lie.''
But neither did the President ever say that they must now
tell the truth under oath; to the contrary, as Ms. Lewinsky
stated: ``It 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 be humiliated in front of the entire world about what we've
done,' which I would have fought him on probably,'' she said.
``That was different. By not calling me and saying that, you
know, I knew what that meant,'' according to Monica Lewinsky.
In a related but later incident that Mr. Hutchinson may
refer to, Monica Lewinsky testified that President Clinton
telephoned her at home around 2 o'clock or 3 o'clock in the
morning on December 17, 1997--2:00 or 2:30 a.m. He told her
that her name was on the list of possible witnesses to be
called in the Paula Jones lawsuit. When asked what to do if she
was subpoenaed, the President suggested that she could sign an
affidavit. Ms. Lewinsky indicated that she was 100 percent sure
that he had suggested that she might want to sign an affidavit.
She understood his advice to mean that she might be able to
execute an affidavit that would not disclose the true nature of
their relationship.
When Ms. Lewinsky agreed to that false affidavit, she told
the President by telephone that she would be signing it and
asked if he wanted to see it before she signed it. According to
Ms. Lewinsky, the President responded that he did not, as he
had already seen about 15 others.
Concurrent with these events I just described, the evidence
will further demonstrate that as Ms. Lewinsky attempted to
return to work at the White House after the 1996 elections, she
spoke with the President. According to Betty Currie, the
President instructed Betty Currie and Marsha Scott, Deputy
Director of Personnel, to assist in her return to the White
House. In the spring of 1997, she met with Ms. Scott. She
complained in subsequent notes to Ms. Scott and the President
about no progress being made with her getting back to the White
House. On July 3 of that year, she dispatched a more formal
letter to the President--in fact, using the salutation, ``Dear
Sir''--and raising a possible threat that she might have to
tell her parents about why she no longer had a job at the White
House if they did not get her another job. She also indicated a
possible interest in a job in New York at the United Nations.
The President and Ms. Lewinsky met the next day in what Ms.
Lewinsky characterized as a ``very emotional'' visit, including
the President scolding her, that it was illegal to threaten the
President of the United States. Their conversation eventually
moved on to other topics, though primarily her complaining
about his failure to get her a job at the White House.
Continuing with Ms. Lewinsky's effort to return to work
near the President, there was a July 16 meeting and September 3
telephone call with Ms. Scott. On the evening of September 30,
the President advised Ms. Lewinsky that he would have Chief of
Staff Erskine Bowles help with a job search, and Bowles later
passed this on to John Podesta, although each recalled their
involvement occurring earlier in the year.
A few days later, however, her hopes of a job at the White
House quickly ended. On October 6, she had a conversation with
Linda Tripp, who told her that she would never return to the
White House, according to a friend of hers on the staff.
Learning this ``secondhand'' was, according to Ms. Lewinsky,
the ``straw that broke the camel's back.'' She decided to ask
the President for a job in New York with the United Nations and
sent him a letter to that effect on October 7.
During an October 11 meeting with the President, he
suggested that she give him a list of New York companies which
interested her. She asked if Vernon Jordan might also help.
Five days later, she provided the President with her ``wish
list'' and indicated that she was no longer interested in the
U.N. position, although she did receive an offer on November 24
and declined it on January 5, 1998.
After this meeting with the President, arrangements were
made through the President and Ms. Currie for Ms. Lewinsky to
meet with Mr. Jordan. On the morning of November 5, 1997, Mr.
Jordan spoke by telephone with the President about 5 minutes
and later met with Ms. Lewinsky for the first time for about 20
minutes. According to Ms. Lewinsky, Mr. Jordan told her he had
spoken with the President, that she came highly recommended,
and that ``We're in business.''
However, the evidence reflects that Mr. Jordan took no
steps to help Ms. Lewinsky until early December of that year
after she appeared on the witness list in the Jones case.
Actually, Mr. Jordan testified in his grand jury testimony that
he had no recollection of even having met Ms. Lewinsky on
November 5.
When he was shown documentary evidence demonstrating that
his first meeting with Ms. Lewinsky occurred in early November,
he acknowledged that such meeting ``was entirely possible.''
You can see that was not to be a high priority for Mr. Jordan
at that time, until December.
For many months, Ms. Lewinsky had not been able to find a
job to her satisfaction--even without the perceived ``help'' of
various people. Then in December of 1997, something happened
which caused those interested in finding Ms. Lewinsky a job in
New York to intensify their search. Within 48 hours of her
signing this false affidavit in the Paula Jones case, Ms.
Lewinsky had landed a job with a prestigious Fortune 500
Company.
It is anticipated that attorneys for the President will
present arguments which will contest much of the relationship
with Monica Lewinsky. The President has maintained throughout
the last several months that while there was no sexual
relationship or sexual affair, in fact, there was some type of
inappropriate, intimate contact with her. What has now been
dubbed as ``legal gymnastics'' on the part of the President has
made its appearance.
Other examples followed. Within his definition of the word
``alone,'' he denies being alone with Ms. Lewinsky at any time
in the Oval Office. He also questions the definition of the
word ``is''--it depends on what the word ``is'' means in how
you answer a particular question. Further, we would expect the
President to continue to disavow knowledge of why evidence
detrimental to his defense in the Jones case was removed from
Ms. Lewinsky's apartment and hidden beneath Ms. Currie's bed or
knowledge of how Ms. Lewinsky found herself with an employment
offer in New York virtually at the same time she finally
executed an affidavit in the Jones case.
Unfortunately, for your search for the truth in these
proceedings, the President continues today to parse his words
and use ``legal hairsplitting'' in his defense. I cite for your
consideration his Answer filed with this body just days ago.
For instance:
One. Responding in part to the impeachment article I, the
President persists in a wrongheaded fashion with his legal
hairsplitting of the term ``sexual relations,'' which permits
him to define that term in such a way that in the particular
salacious act we are talking about here, one person has sex and
the other person does not. As a graduate of one of the finest
law schools in America and as a former law professor and
attorney general for the State of Arkansas, the President knows
better. I have this statement here extracted out of the
President's Answer to this proceeding.
Two. Responding to both articles of impeachment, the
President now would have you believe that he ``was not
focusing'' when his attorney, Bob Bennett, was objecting during
the deposition and attempting to cut off a very important line
of questioning of the President by representing to Judge Wright
that Ms. Lewinsky's affidavit proved that there is no need to
go into this testimony about the President's life. He said that
this affidavit proves that ``there is absolutely no sex of any
kind, in any manner, shape or form.'' Remember that this is the
same President who now pleads that he lost his focus during
this very important part of this deposition. This is the very
same President who is renowned for his intelligence and his
ability ``to compartmentalize,'' to concentrate and focus on
whatever matter is at hand. And now he comes before this
Senate, to each one of you, in his Answer, by and through his
attorneys, and pleads that he simply wasn't paying attention at
this very important point during his own deposition. In
Tennessee, we have a saying for situations like that: ``That
dog won't hunt.''
Three. In his further response to article I, the President
effectively admits guilt to obstruction. As I read this, his
pleadings refer to the President himself, and he states that
he, the President, ``truthfully explained to the grand jury his
efforts to answer the questions in the Jones deposition without
disclosing his relationship with Ms. Lewinsky.'' So he said he
did answer the questions in the Jones deposition in a way so as
not to disclose his relationship with Ms. Lewinsky. At the
bottom of the same page, he denies that he attempted ``to
impede the discovery of evidence in the Jones case.'' Think
about this with me for a minute. Basically, the purpose of the
Jones deposition of the President was to secure truthful
testimony about these kinds of ``pattern and practice''
witnesses, and therein discover the likes of Monica Lewinsky.
That is the purpose of being there. The President admitted in
his Answer that he purposely answered questions so as not to
disclose his relationship with Ms. Lewinsky. Said another way,
he intentionally answered questions to avoid the discovery of
one of these female employees with whom he was sexually
involved. That is precisely, folks, what impeding the discovery
of evidence is.
I ask you, if you get an opportunity, to look at this very
closely.
Four. In his answer to article II, the President ``denies
that he encouraged Monica Lewinsky to execute a false affidavit
in the Jones case.'' When everything is said and done, Ms.
Lewinsky had no motivation, no reason whatsoever to want to
commit a crime by willfully submitting a false affidavit with a
court of law. She really did not need to do this at that point
in her life, but this 20-something-year-old young lady was
listening to the most powerful man in the United States, whom
she greatly admired, hearing him effectively instruct her to
file a false affidavit to avoid having to testify about their
relationship. And in order to do that, she had to lie about the
physical aspects of their relationship. According to her, the
President didn't even want to see that actual affidavit because
he had seen 15 more just like it and as such he knew what it
would be.
Five. In an additional response to article II, the
President answers and asserts that ``he believed that Ms.
Lewinsky could have filed a limited and truthful affidavit that
might have enabled her to avoid having to testify in the Jones
case.'' That is an incredible statement. That is an incredible
statement given the fact that the President knew firsthand of
the extent of their sexual relationship, and he also knew that
the Jones discovery efforts were specifically after that type
of conduct. Even with the best of the legal hairsplitting, it
is still difficult to envision a truthful affidavit from Ms.
Lewinsky that could have skirted this issue enough to avoid
testifying.
And if you really think the President had this belief,
don't you think he would have accepted Ms. Lewinsky's offer to
review her affidavit and perhaps share this bit of wisdom he
had with her before she signed it and lied? After all, in this
answer he just filed, he says he had an out for her, a way for
her to have the best of both worlds--not to have to lie and
still avoid testifying in the Jones case. Why didn't he share
that with her when she gave him the opportunity if he in fact
had such an idea? I suggest that perhaps that is a recent idea.
Even if, for some reason, you don't believe Ms. Lewinsky
offered to share that affidavit with him, don't you think it
still would have been in the President's best interest to give
Ms. Lewinsky his thoughts before she violated the law with a
completely false affidavit?
Now, indeed, is the time to stop the legal gymnastics and
hairsplitting and deal with these charges and facts
appropriately.
As a House manager, I believe I can speak for all of us out
of a sense of fairness, and again request that we and the
President be permitted to call witnesses. 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. A reasonable and impartial review of the record as it
presently exists demands nothing less than a guilty verdict.
While it has been the consistent defense of the White House
to be inconsistent, it still comes as something of a surprise
that the President has not made a stronger case for the calling
of witnesses. Before now, he has aggressively sought the
opportunity to challenge the truth and veracity of witnesses in
these impeachment proceedings. During the hearings in the
House, which many believe are analogous to a grand jury
proceeding, the President's defenders and his attorneys
consistently complained of the failure to call witnesses and
the lack of fairness and due process. Almost every day, there
were partisan attacks from the White House and its emissaries
who were dispatched throughout the media talk shows with the
same complaints of no witnesses.
And always, our measured response was a calm assurance that
there would be witnesses called during the trial phase in the
Senate. Is there any doubt that our forefathers intended a two-
step impeachment proceeding?
The House would function as the grand jury and determine
whether to charge--to impeach. Then you, as the trier of fact,
would function as the jury to try the case and weigh the
testimony of the fact witnesses. In recent days, some have
publically asserted that the House is hypocritical because it
didn't call some of the fact witnesses it now asks to call in
the Senate. For the record, it must be noted that the House
Judiciary Committee, out of an abundance of fairness, did allow
the President's defense team 30 hours in which to present any
witnesses that they could have chosen and they could have
examined.
But any allegation of hypocrisy certainly appears to miss
the point that the writers of our Constitution never
contemplated two separate trials for an impeachment proceeding.
But now we would respectfully suggest is the time for
witnesses.
All Americans, including the President, are entitled to
enjoy a private family life, free from public or governmental
scrutiny. But the privacy concerns raised in this case are
subject to limits, three of which I will briefly discuss here.
The first limit was imposed when the President was sued in
Federal court for alleged sexual harassment. The evidence in
such litigation is often personal. At times, that evidence is
highly embarrassing for both plaintiff and defendant. As Judge
Wright noted at the President's January 1998 deposition, ``I
have never had a sexual harassment case where there was not
some embarrassment.'' Nevertheless, Congress and the Supreme
Court have concluded that embarrassment-related concerns must
give way to the greater interest in allowing aggrieved parties
to pursue their claims. Courts have long recognized the
difficulties of proving sexual harassment in the work place,
inasmuch as improper or unlawful behavior often takes place in
private. To excuse a party who lied or concealed evidence on
the ground that the evidence covered only ``personal'' or
``private'' behavior would frustrate the goals that Congress
and the courts have sought to achieve in enacting and
interpreting the Nations's sexual harassment laws. That is
particularly true when the conduct that is being concealed--
sexual relations in the workplace between a high official and a
young subordinate employee--itself conflicts with those goals.
The second limit was imposed when Judge Wright required
disclosure of the precise information that is in part the
subject of this hearing today. A Federal judge specifically
ordered the President, on more than one occasion, to provide
the requested information about relationships with other women,
including Ms. Lewinsky. The fact that Judge Wright later
determined that the evidence would not be admissible at trial,
and still later granted judgment in the President's favor, does
not change the President's legal duty at the time he testified.
Like every litigant, the President was entitled to object to
the discovery questions and to seek guidance from the court if
he thought those questions were improper. But having failed to
convince the court that his objections were well founded, the
President was duty bound to testify truthfully and fully.
Perjury and attempts to obstruct the gathering of evidence can
never be an acceptable response to a court order, regardless of
the eventual course or outcome of the litigation.
The Supreme Court has spoken forcefully about perjury and
other forms of obstruction of justice: ``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.''
The insidious effects of perjury occur whether the case is
civil or criminal. Only a few years ago, the Supreme Court
considered a false statement made in a civil administrative
proceeding: ``False testimony in a formal proceeding is
intolerable. We must neither reward nor condone such a
`flagrant affront' to truth-seeking function of adversary
proceedings . . . Perjury should be severely sanctioned in
appropriate cases.'' Stated more simply, ``perjury is an
obstruction of justice.''
The third limit is unique to the President. ``The
Presidency is more than an executive responsibility. It is the
inspiring symbol of all that is highest in American purpose and
ideals.'' As the head of the Executive Branch, the President
has the constitutional duty to ``take Care that the Laws be
faithfully executed.'' The President gave his testimony in the
Jones case under oath and in the presence of a Federal judge, a
member of a co-equal branch of government; he then testified
before a Federal grand jury, a body of citizens who had
themselves taken an oath to seek the truth. In view of the
enormous trust and responsibility attendant to his high Office,
the President has a manifest duty to ensure that his conduct at
all times complies with the law of the land.
In sum, perjury and acts that obstruct justice by any
citizen--whether in a criminal case, a grand jury
investigation, a congressional hearing, a civil trial or civil
discovery--are profoundly serious matters. When such acts are
committed by the President of the United States, those acts are
grounds for conviction and removal from his Office.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
there now be a recess of the proceedings for 15 minutes.
The CHIEF JUSTICE. Is there objection?
Mr. Manager BRYANT. Mr. Chief Justice, I have just about 1
minute and I will conclude.
Mr. LOTT. I withhold my request.
The CHIEF JUSTICE. Very well.
Mr. Manager BRYANT. Thank you.
As I reach the conclusion of my presentation, the time line
is now in December of 1997. Following her November 5 meeting
with Mr. Jordan, Ms. Lewinsky had no communication with him or
the President for a month. Then in early December, the parties
in the Jones case exchanged witness lists and Ms. Lewinsky was
scheduled as a potential witness by the Jones attorneys. On or
about that same day, Ms. Lewinsky attempted to make an
uninvited visit to the White House and later that day was
allowed in by the President. But it was during this time, in
December of 1997, that some of the seams began to unravel for
the President.
I will conclude my remarks at this point and thank the
Chief Justice and the Members of the Senate for their careful
attention. My colleague from Arkansas, Mr. Hutchinson, will
follow me now or at the end of any recess as may be necessary.
RECESS
Mr. LOTT. Mr. Chief Justice, my apologies to the manager
for the interruption at the end of his remarks.
I renew my request of unanimous consent to take a 15-minute
recess.
The CHIEF JUSTICE. In the absence of an objection, it is so
ordered.
[Thereupon, at 3:07 p.m., the Senate, sitting as a Court of
Impeachment, recessed until 3:30 p.m.]
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. I believe, Mr. Chief Justice, we are prepared now
to go forward with the next manager's presentation.
The CHIEF JUSTICE. Very well. The Chair recognizes Manager
Hutchinson.
Mr. Manager HUTCHINSON. Mr. Chief Justice, Senators, I am
Asa Hutchinson, a Member of Congress from the Third
Congressional District of Arkansas. I am grateful for this
opportunity, although it comes with deep regret, to be before
you. I do want to tell you in advance that we have presented to
you, on your tables, a selection of charts that I will be
referring to here so everyone will have the advantage of being
able to see at least in some fashion the charts to which I will
be referring. And we will have the charts here as well.
This is certainly a humbling experience for a smalltown
lawyer. I learned to love and to respect the law trying cases
in the courtrooms of rural Arkansas. The scene is different in
this setting, in this historic Chamber with the Chief Justice
presiding and Senators sitting as jurors. But what is at stake
remains the same.
In every case heard in every courtroom across this great
country, it is the truth, it is justice, it is the law that is
at stake. In this journey on Earth, there is nothing of greater
consequence to devote our energies to than the search for the
truth, to pursue equal justice, and to uphold the law. It is
for those reasons that I serve as a manager. And as you, I hope
that I can help in some way to bring this matter to a
conclusion for our country. This afternoon I will be discussing
the evidence and the testimony from witnesses that we do hope
to call, and during my presentation I will be focusing on the
evidence that demonstrates obstruction of justice under article
II.
You might wonder, well, why are we going to article II
before we have covered article I on perjury? And the answer is
that in a chronological flow, article II, the obstruction
facts, precedes much of the perjury allegations. And so,
following my presentation, Manager Rogan will present article I
on perjury.
The presentation I make will be based upon the record, the
evidence, and the facts that have been accumulated. I want you
to know that I am going to be presenting those facts, and from
time to time I will argue those facts. I believe they are well
supported in the record, but I urge each of you, if you ever
find anything that you question, to search the record and
verify the facts because I do not intend to misrepresent
anything to this body. In fact, we will be submitting to each
of your offices my presentation with annotations to the record,
to the grand jury transcripts which will tie in the facts that
I present to you. Again, I believe and trust you will find they
are well supported.
So let's start with obstruction of justice. Later on, there
will be a full discussion of the law on obstruction of justice,
but for our purposes, it is simply any corrupt act or attempt
to influence or impede the proper functioning of our system of
justice. It is a criminal offense, a felony, and it has
historically been an impeachable offense.
Let me first say, it is not a crime nor an impeachable
offense to engage in inappropriate personal conduct, nor is it
a crime to obstruct or conceal personal embarrassing facts or
relationships. It might be offensive, but there are no
constitutional consequences. But as we go through the facts of
the case, the evidence will show in this case that there was a
scheme that was developed to obstruct the administration of
justice, and that is illegal. And the obstruction of justice is
of great consequence and significance to the integrity of our
Nation when committed by anyone but particularly by the Chief
Executive of our land, the President of the United States.
Mr. Bryant took us factually up to a certain point
pertaining to the job search. This is chart No. 1 that you have
before you. This puts it in perspective a little bit. Just for
a brief review, go back in the calendar, back into October.
That is when Ms. Lewinsky sends the President her wish list of
jobs. And then shortly after that, Ms. Currie faxes Lewinsky
the resume to Ambassador Richardson, and Ambassador Richardson
gets involved in the job search.
October 30, the President promised to arrange a meeting
between Lewinsky and Jordan. This was set up in November. It
was actually November 5. But preceding that, there was a job
offer at the United Nations extended to Ms. Lewinsky. Ms.
Lewinsky decided that she was not interested in a job at the
United Nations; she wanted to go into the private sector. And
so that was the purpose on November 5 of the meeting between
Jordan and Lewinsky. That is when Mr. Jordan says, ``We're in
business.'' But the facts will show that there was nothing
really done in November, and that is when I will get a little
bit more into my presentation, and then I will get into
December when some things happened there that picked up speed
on this issue.
The obstruction, for our purposes, started on December 5,
1997, and that is when the witness list from the Paula Jones
case was faxed to the President's lawyers. At that point, the
wheels of obstruction started rolling, and they did not stop
until the President successfully blocked the truth from coming
out in the civil rights case.
These acts of obstruction included attempts to improperly
influence a witness in a civil rights case--that is, Monica
Lewinsky--the procurement and filing of a false affidavit in
the case; unlawful attempts to influence the testimony of a key
witness, Betty Currie; the willful concealment of evidence
under subpoena in that case, which are the gifts of December
28; and illegally influencing the testimony of witnesses--that
is, the aides who testified before the grand jury--before the
grand jury of the United States. Each of these areas of
obstruction will be covered in my presentation today.
As I said, it began on Friday, December 5, when the witness
list came from the Paula Jones case. Shortly thereafter, the
President learned that the list included Monica Lewinsky. This
had to be startling news to the President because if the truth
about his relationship with a subordinate employee was known,
the civil rights case against him would be strengthened and it
might have totally changed the outcome.
But to compound the problem, less than a week later, Judge
Wright, a Federal district judge in Arkansas, on December 11,
issued an order, and that order directed that the President had
to answer questions concerning other relationships that he
might have had during a particular timeframe with any State or
Federal employee. And when I say ``relationships,'' I am
speaking of sexual relationships. So Judge Wright entered the
order that is not in your stack, but I have it here. It was
filed on December 11 in the district court in Arkansas and
directs the President that he has to answer those questions
within a timeframe, as Mr. Bryant said, which is typical in a
civil rights case of this nature.
The White House knew that Monica was on the witness list.
The President knew it was likely she would be subpoenaed as a
witness and that her truthful testimony would hurt his case.
What did the President do? What he had to do was to make
sure Monica Lewinsky was on his team and under control. And
then on December 17, the President finally called Ms. Lewinsky
to let her know she was on the list. This was a call between 2
a.m. and 2:30 a.m. in the morning.
Now, what happened in the time between the President
learning Monica Lewinsky was on the list and when he notified
her of that fact on December 17 is very important. The
President, during that timeframe, talked to his friend, his
confidante, and his problem-solver, Vernon Jordan. Mr. Jordan
had come to the President's rescue on previous occasions. He
was instrumental in securing consulting contracts for Mr. Webb
Hubbell while Mr. Hubbell was under investigation by the
independent counsel.
Let me parenthetically go to that point, right before Mr.
Hubbell announced his resignation from the Justice Department.
During that timeframe, there was a meeting at the White
House in which the President, the First Lady, and others were
present. After that meeting, Vernon Jordan agreed to help
obtain financial assistance for Mr. Hubbell. Mr. Jordan then
introduced Mr. Hubbell to the ``right people.'' The
introduction was successful and Mr. Hubbell obtained a $100,000
contract. The ``right people'' that Mr. Jordan contacted
happened to be the same ``right people'' for both Mr. Hubbell
and ultimately for Monica Lewinsky, which is the parent company
of Revlon. So the President was aware that Mr. Jordan had the
contacts and the track record to be of assistance to the
President in delicate matters.
Now let's go back a little. Monica Lewinsky had been
looking for a good-paying and high-profile job in New York,
since the previous July, as I pointed out.
She had been offered a job at the United Nations, but she
wanted to work in the private sector. She was not having much
success, and then in early November it was Betty Currie who
arranged a meeting with Vernon Jordan, which was ultimately on
November 5. At this meeting, Ms. Lewinsky met with Mr. Jordan
for about 20 minutes.
Now, let's refer to Mr. Vernon Jordan's grand jury
testimony on that meeting that occurred on November 5. And you
have that, and it should be your chart No. 2, or exhibit 2.
As Mr. Jordan testified before the Federal grand jury on
March 3, 1998, in reference to the November 5 meeting, he said:
I have no recollection of an early November meeting with
Ms. Monica Lewinsky. I have absolutely no recollection of it
and I have no record of it.
He goes on to testify, at page 76 of the grand jury
testimony.
Question:
Is it fair to say that back in November getting Monica
Lewinsky a job on any fast pace was not any priority of yours?
His answer:
I think that's fair to say.
Now, let's stop there for a moment. What happened as a
result of this meeting? No action followed whatsoever. No job
interviews were arranged and there were no further contacts
with Mr. Jordan. Mr. Jordan made no effort to find a job for
Ms. Lewinsky for over a month. Indeed, it was so unimportant to
him that he ``had no recollection of an early November
meeting,'' and, in fact, he testified finding her a job was not
a priority. And then you will see that during this timeframe
the President's attitude was exactly the same.
And so look at the same exhibit 2, the last item on that
chart, where it refers to Monica Lewinsky's grand jury
testimony. And there she is referring to a December 6 meeting
with the President:
I think I said that . . . I was supposed to get in touch
with Mr. Jordan the previous week and that things did not work
out and that nothing had really happened yet [on the job
front].
And the question was:
Did the President say what he was going to do?
The answer:
I think he said he would--you know, this was sort of
typical of him, to sort of say, ``Oh I'll talk to him. I'll get
on it.''
So you can see from that that it was not a high priority
for the President either. It was: Sure, I'll get to that. I
will do that.
It was clear from Monica Lewinsky that nothing was
happening.
But then the President's attitude suddenly changed. What
started out as a favor for Betty Currie dramatically changed
after Ms. Lewinsky became a witness; the judge's order was
issued, again, on December 11. And at that time, the President
talked personally--personally--to Mr. Jordan and requested his
help in getting Ms. Lewinsky a job. And that would be, again,
back on exhibit 2 on that chart, the third item of testimony
there. Back to Mr. Jordan, his grand jury testimony, May 5,
1998.
The question is:
But what is also clear is that as of this date, December
11th, you are clear that at that point you had made a decision
that you would try to make some calls to help get her a job.
His answer:
There is no question about that.
Let's look at the chain of events. 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.
Now, if we had Mr. Jordan on the witness stand--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.
And so let's go to exhibit 3 in your booklet. Again,
recalling Mr. Jordan, he testifies about that meeting. He
testifies, in his March 3, 1998, grand jury testimony:
I am certain after the 11th that I had a conversation with
the President and as a part of that conversation I said to him
that Betty Currie had called me about Monica Lewinsky. And the
conversation was that he knew about her situation which was
that she was pushed out of the White House, that she wanted to
go to New York and he thanked me for helping her.
Remember what else happened on that day, again, the same
day that Judge Wright ruled that the questions about other
relationships could be asked by the Jones attorneys.
Now, let's go back again to Mr. Jordan's testimony. What
does he say about the involvement of the President of the
United States in regard to these jobs? You look at exhibit 4.
That is in your booklet. This is, again, Vernon Jordan's grand
jury transcript of June 9, 1998.
Now, the question is on a different issue. The question is
about why did he tell the White House that Frank Carter--Frank
Carter was the attorney for Monica Lewinsky that Vernon Jordan
arranged and introduced to Monica Lewinsky. He was hired. And
at whatever point he was terminated, then Vernon Jordan
notified the President. So the question relates to that:
Why are you trying to tell someone at the White House that
this has happened, [Carter had been fired]?
Answer:
Thought they had a right to know.
Question:
Why?
And here is the answer that is critical for my point:
The President asked me to get Monica Lewinsky a job. I got
her a lawyer. The Drudge Report is out and she has new counsel.
I thought that was information that they ought to have. . . .
``The President asked me to get Monica Lewinsky a job.''
Clear, straightforward testimony; no doubt about it.
Then go on down to page 58 of his grand jury testimony of
June 9.
The question:
Why did you think the President needed to know that Frank
Carter had been replaced?
Answer:
Information. He knew that I had gotten her a job, he knew
that I had gotten her a lawyer. Information. He was interested
in this matter. He is the source of it coming to my attention
in the first place.
``He is the source of it coming to my attention in the
first place.'' Remember, he had already met with Betty Currie.
Nothing was happening in the November timeframe. Nothing was
happening. Vernon Jordan--it was not a priority. Then the
President of the United States called him and it became a
priority. And that is who he was acting for in trying to get
Monica Lewinsky a job.
At this point we do not know all that the President was
telling Vernon Jordan, but we do know that there were numerous
calls back and forth between Mr. Jordan and the President.
There were numerous calls being made by Mr. Jordan on behalf of
Monica Lewinsky searching for a job, and that despite the fact
that Monica Lewinsky did not know that she was witnessed--she
did not know she was a witness--the President knew that she was
a witness during his intensified efforts to get her a job.
Now, the President's counselors have made a defense that
the job search started before Monica Lewinsky was a witness and
there was nothing wrong with that. My response to that is, it
is true there is nothing wrong with a public official, under
the right circumstances, helping someone get a job. And what
might have started out being innocent, if you accept that
argument, crossed the line whenever it was tied and
interconnected with the President's desire to get a false
affidavit from Monica Lewinsky, and whenever the job is out
there and preparing the false affidavit, you will see that they
are totally interconnected, intertwined, interrelated; and that
is where the line has crossed into obstruction.
For example, when the President was waiting on Ms. Lewinsky
to sign the false affidavit in the Jones case during the
critical time in January, a problem developed. The job
interviews were unproductive, despite the numerous calls by Mr.
Jordan. On one particular day, Monica called Mr. Jordan and
said the interview with Revlon did not go well. Mr. Jordan,
what did he do? He picked up the phone to the CEO of--the
president of the company, Mr. Perelman, to, as Vernon Jordan
testified, ``make things happen--if they could happen.'' That
is the request from Mr. Jordan to the CEO of a company, after a
job interview with Monica Lewinsky did not go well.
What happened? Things happened. He made things happen.
Monica Lewinsky got a job. The affidavit was signed and the
President was informed by Mr. Jordan, through Betty Currie,
that the mission was accomplished.
The question here is not why did the President do a favor
for an ex-intern, but why did he use the influence of his
office to make sure it happened? The answer is that he was
willing to obstruct, impede justice by improperly influencing a
witness in order to protect himself in a civil rights case.
The next step in the obstruction is the false affidavit.
This is directly related to the job mission. The President
needed the signature of Monica Lewinsky on the false affidavit,
and that was assured by the efforts to secure her a job. Again,
the President brought Ms. Lewinsky into the loop on December
17. Over 10 days after the witness list was received by the
President, the President was ready to tell Monica the news.
That timeframe is important. He gets the witness list. He
could have called Monica Lewinsky immediately, but he needed 7
days because he needed to make sure the job situation was in
gear. And in fact, the day after, if you look back on exhibit
1, you will see that the day after the December 17 timeframe
that she was informed that she was on the witness list, the
next day she already had lined up job interviews for her. So
she felt confident. But she was notified on December 17.
Between 2 and 2:30 a.m., her phone rang. It was the President
of the United States. The President said that he had seen the
witness list in the case and her name was on it. Ms. Lewinsky
asked what she should do if subpoenaed, and the President
responded, ``Well, maybe you can sign an affidavit.''
Well, how would this work? Both parties knew that the
affidavit would need to be false and misleading in order to
accomplish the desired result. Clearly, truthful testimony by
Monica Lewinsky would make her a witness, would not keep her
away from testifying. Only a false affidavit would avoid the
deposition.
So look at what I have marked as exhibit 4.1, which is just
a review of the key dates on this job search. Again, November 5
was the first meeting between Jordan and Ms. Lewinsky. In
November nothing happened. According to Jordan, ``not a high
priority.'' On December 5, the President receives the witness
list. On the 11th, things intensify with Judge Wright's order.
The 11th, the President talks to Mr. Jordan about the job for
Monica. He gets into action. On the 17th, they are ready to
tell Monica that she is on the witness list. And then, on the
19th, she is actually served with a subpoena. Again, remember,
after she was finally notified, it was the next day that she
had the job interviews.
Now we will spend some time on the December 17
conversation, the day that Monica Lewinsky was notified that
she was on the witness list. During that conversation, the
President had a very pointed suggestion for Ms. Lewinsky that
left no doubt about his purpose and the intended consequences.
He did not say specifically, ``Go in and lie.'' This is
something that you will hear, and Monica Lewinsky testified in
her grand jury testimony: ``The President never told me to
lie.''
How do you tell people to lie? You can tell them the facts
that they can use that would, in substance, be a false
statement or you can say, ``Go in and lie and make up your own
false testimony.'' The President chose to give her the ideas as
to what she could testify to that would be false, but he never
said the words, ``You need to go in and lie.'' So what he did
say to her was, ``You know, you can always say you were coming
to see Betty or that you were bringing me letters.''
That, ladies and gentlemen of the Senate, is a false
representation, is a false statement that he is telling Ms.
Lewinsky to utter. Remember, at this point the President knows
she is a witness, and what does he do? As evidenced by the
testimony of Monica Lewinsky, he encourages her to lie: ``You
can always say you were coming to see Betty or that you were
bringing me letters.''
It should also be remembered that the President, when
questioned about encouraging Monica Lewinsky to lie, has denied
these allegations and therefore there is certainly a conflict
in the testimony. It is our belief that Ms. Lewinsky's
testimony is credible and she has the motive to tell the truth
because of her immunity agreement with the independent counsel,
where she gets in trouble only if she lies, whereas the
President has the motive to cover up and to testify falsely.
In order to understand the significance of this statement
made by the President, it is necessary to recall the cover
stories that the President and Ms. Lewinsky had previously
concocted in order to deceive those people who might inquire.
It was to deceive those people that they worked with. The
difference in the initial cover stories, though, to protect the
President and Monica from an embarrassing personal
relationship, from friends and coworkers and the media, now is
in a different arena, with the pending civil rights case and
Ms. Lewinsky being on the witness list.
Despite the legal responsibilities, the President made the
decision to continue the pattern of lying which ultimately
became an obstruction of the administration of justice. We are
still on December 17, when the President called Monica at 2
a.m. on that particular day to tell her she was on the witness
list, to remind her of the cover stories. Monica Lewinsky
testified, when the President brought up the cover story, she
understood that the two of them would continue their
preexisting pattern of deception, and it became clear that the
President had no intention of making his relationship with a
subordinate Federal employee an issue in that civil rights
case, no matter what the Federal courts told him he needed to
answer. And he used lies, deceit, and deception to carry out
that purpose.
It is interesting to note that the President, when he was
asked by the grand jury whether he remembered calling Monica
Lewinsky at 2 a.m. on December 17, responded, ``No, sir, I
don't, but it is quite possible that that happened.'' When he
was asked whether he encouraged Monica Lewinsky to continue the
cover stories of coming to see Betty or bringing letters, he
answered, ``I don't remember exactly what I told her that
night.''
This is not a denial, and therefore I believe you should
accept the testimony of Monica Lewinsky. If you say in your
mind, well, I'm not going to believe her, then you should first
give us the opportunity to present this witness so that you as
jurors can fairly and honestly determine her credibility.
As expected, 2 days later, on December 19, Ms. Lewinsky
received a subpoena to testify in the Jones case. This sets
about an immediate flurry of activity. There are a series of
telephone calls between Ms. Lewinsky, Vernon Jordan, the
President, and his staff. You will see this pattern of
telephone calls repeated and generated at any point in time
when it appears that the truth may be told in the civil rights
case.
Now, let's look at exhibit 5, which is the activity on
Friday, December 19. This is the day that Monica Lewinsky is
served with a subpoena. Now, after Mr. Jordan is notified that
Monica Lewinsky is served with a subpoena, what does he do? In
the 3:51-3:52 notation, Jordan telephones the President and
talks to Debra Schiff, his assistant. The subpoena is issued.
Monica calls Jordan and Jordan immediately calls the President.
``Lewinsky meets with Jordan and requests that Jordan notify
the President about her subpoena.'' This is at 4:47 p.m.
Presumably, in the middle of that meeting, at 5:01 p.m.,
the President of the United States telephones Mr. Jordan and
Jordan notifies the President about Ms. Lewinsky's subpoena.
Then that is whenever he arranged for Ms. Lewinsky's
attorney--``Jordan telephones attorney Carter''--for
representation, and that night Vernon Jordan goes to the White
House to meet privately with the President on these particular
issues.
Now, in that meeting--and I am speaking of the meeting that
happened late that night at the White House--Mr. Jordan told
the President again that Ms. Lewinsky had been subpoenaed and
related to the President the substance and details of his
meeting with Ms. Lewinsky. It wasn't a casual consideration;
the details were discussed, including her fascination with the
President and other such issues.
This led Mr. Jordan to ask the President about his
relationship with Ms. Lewinsky, and the response by the
President of the United States was the first of many denials to
his friends and aides. The President stated in his deposition
that he did not recall that meeting. But you should remind
yourselves of the testimony and the description provided by
Vernon Jordan when he said, ``The President has an
extraordinary memory.'' In fact, we all know that he is world
famous for that memory.
Now, the subpoena had been delivered, but the testimony of
Monica Lewinsky was not scheduled until January 23, and the
President's deposition, which was even more critical, was not
scheduled until January 17. So the President and his team had
some time to work. The work was not the business of the Nation;
it was the distraction and self-preservation in the civil
rights case.
Under the plan, Mr. Jordan would be the buffer; he would
obtain an attorney--Mr. Carter--and that attorney would keep
Mr. Jordan informed on the progress of the representation,
including reviewing any copy of the affidavit, knowing about
the motion to quash, and the general progress of the
representation. All along the way, when Mr. Jordan gets
information, what does he do with that? Mr. Jordan keeps the
President informed both about the affidavit and the prospects
of the job in New York, for which Ms. Lewinsky was totally
dependent on the help of her friends in high places.
Let me go back again. There is nothing wrong with helping
somebody get a job. But we all know there is one thing
forbidden in public office: We must avoid quid pro quo, which
is: This is for that. But Vernon Jordan testified he kept the
President informed on the status of the false affidavit, the
job search, and the status of Ms. Lewinsky's representation.
Why? Is this just idle chatter with the President of the United
States or are these matters the President is vitally interested
in and, in fact, coordinated? Mr. Jordan answers this question
himself on page 25 of his grand jury testimony, where he
testified, ``I knew the President was concerned about the
affidavit and whether or not it was signed.'' That was his
March 5, 1998, grand jury testimony. The President was
concerned not just about the affidavit but specifically about
whether it was signed.
The President knew that Monica Lewinsky was going to make a
false affidavit. He was so certain of the contents that when
Monica Lewinsky asked if he wanted to see it, he told her no,
that he had seen 15 of them. Besides, the President had
suggested the affidavit himself, and he trusted Mr. Jordan to
be certain to keep things under control. In fact, that was one
of the main purposes of Mr. Jordan's continued communication
with Monica Lewinsky's attorney, Frank Carter.
Even though Mr. Jordan testifies at one point he never had
any substantive discussions on the representation with Mr.
Carter, he contradicts himself in his March 3 grand jury
testimony where he states:
Mr. Carter at some point told me--this is after January--
that she had signed the affidavit, that he had filed a motion
to quash her subpoena and that--I mean, there was no reason for
accountability, but he reassured me that he had things under
control.
Mr. Jordan was aware of the substance of the drafting of
the affidavit, the representation, the motion to quash, and
even had a part in the redrafting. This was clearly important
to Mr. Jordan and clearly important to the President.
Now, let's go to the time when the false affidavit was
actually signed, January 5, 1998. These will be exhibits 7, 8,
and 9 in front of you. Let's go to January 5. This is sort of a
summary of what happened on that day. Ms. Lewinsky meets with
her attorney, Mr. Carter, for an hour. Carter drafts the
affidavit for Ms. Lewinsky on the deposition. In the second
paragraph, Ms. Lewinsky telephones Betty Currie, stating that
she needs to speak to the President, that this is about an
important matter; specifically, that she was anxious about
something she needed to sign--an affidavit. Frank Carter drafts
the affidavit she is concerned about. She calls the President.
The President returns Ms. Lewinsky's call.
Big question: Should the President return Ms. Lewinsky's
call? He does, that day, quickly. Ms. Lewinsky mentions the
affidavit she is signing and offers to show it to the
President. That is where he says no, he had seen 15 others.
Let's go to the next day. The next exhibit is January 6. On
this particular day, Ms. Lewinsky picks up the draft affidavit.
At 2:08 to 2:10 p.m., she delivers that affidavit. To whom? Mr.
Jordan. That is after she got it. She delivers it to Jordan.
And then, at 3:26 p.m., Mr. Jordan telephones Mr. Carter. At
3:38, Mr. Jordan telephones Nancy Hernreich of the White House.
At 3:48, he telephones Ms. Lewinsky about the draft affidavit,
and, at 3:49, you will see in red that both agree to delete a
portion of the affidavit that created some implication that
maybe she had been alone with the President.
So Mr. Jordan was very involved in drafting the affidavit
and the contents of that.
And then at 4:19, presumably in response to some of the
calls by Jordan earlier in the day, the President telephones
Mr. Jordan and they have a discussion. And then Mr. Jordan
telephones Carter and the conversations go back and forth. At
the end of the day, Mr. Jordan telephones the White House. So
the affidavit is still in the drafting process.
Let's go to the next day, exhibit 9. Monica signs the
affidavit here. At 10 a.m., Ms. Lewinsky signs a false
affidavit in Mr. Carter's office. Then she delivers the signed
affidavit to Mr. Jordan. And then what does he do? The usual.
At 11:58, Mr. Jordan telephones the White House. At 5:46, Mr.
Jordan telephones the White House. At 6:50, Mr. Jordan
telephones the White House and tells the President that Ms.
Lewinsky signed the affidavit.
Is this important information for the President, to know he
was vitally interested in it?
The next day--exhibit 10--January 8. After it is signed,
what is important? It was the other part of the arrangement,
that she has the job interview with MacAndrews in New York. She
had that job interview. The only problem was that it went
poorly, very poorly. So at 4:48 p.m. on this particular day,
Ms. Lewinsky telephones Jordan and advises that the New York
interview went ``very poorly.''
What does Mr. Jordan do? He telephones Ron Perelman, the
CEO of Revlon, the subsidiary of MFH, to make things happen, if
they could happen. What does he do next? Jordan telephones Ms.
Lewinsky, saying, ``I'm doing the best I can to help you out.''
And they set up another interview for the next day. Jordan
telephones the White House Counsel's Office, and, in the
evening, Revlon in New York telephones Ms. Lewinsky to set up a
follow-up interview. They said the first interview didn't go
well, but because Mr. Jordan intercedes--and why? Because the
false affidavit has been signed and he wants to make sure this
is carried out. At 9:02 p.m., Ms. Lewinsky telephones Jordan
about the Revlon interview in New York, and presumably it went
better on that particular day.
Then on January 9--exhibit 11--it is confirmed that she has
the job. Lewinsky is offered the Revlon job in New York and
accepts.
Lewinsky telephones Jordan. And then, at 4:14, Jordan
notifies Currie, calls Betty Currie, and says ``Mission
accomplished'' and requests that she tell the President. Jordan
notifies the President of Lewinsky's job offer and says,
``Thank you, very much, Mr. President.'' And then that evening
the President telephones Currie, and so on. But the President
is notified that the job has been secured--``mission
accomplished.''
Let me ask you a question, after I have gone through these
exhibits. Would Mr. Jordan have pushed for a second interview
without cooperation on the affidavit? Would Monica Lewinsky
have received the support and secured the job if she had said,
``I don't want to sign an affidavit; I am just going to go in
there and tell the truth; whatever they ask me, I am going to
answer; I am going to tell the truth.'' Does anyone in this
room believe that she would have been granted the job if Mr.
Jordan had not made that call to get that second interview, if
she had not had help from her friends in high places?
Now the affidavit has been signed. The job is secure.
Monica Lewinsky is on the team, and the President of the United
States is armed for the deposition.
So let's move there.
Just how important was Monica Lewinsky's false affidavit to
the President's deposition? Let's look. What did the
President's attorney, Robert Bennett, say about that affidavit
to the Federal judge during the deposition? That false
affidavit allowed Mr. Bennett, the attorney for Mr. Clinton,
when talking about the question of the relationship between the
President and Ms. Lewinsky, to assert that `` . . . there is
absolutely no sex of any kind in any manner, shape or form with
President Clinton. . . .''
That is a statement of Robert Bennett--his representation
to the court about that relationship. It is a representation
that he had to later, probably based upon his own professional
embarrassment, withdraw and to correct that inaccurate part of
the record.
When questioned by his own attorney in the deposition, the
President stated specifically the key paragraph of Ms.
Lewinsky's affidavit was ``absolutely true.''
Paragraph 8 of her affidavit states:
I have never had a sexual relationship with the President.
. . .
If it enters your mind at this point as to what was meant
by ``sexual relationship,'' please remember that this affidavit
was drafted upon a common understanding of that phrase at that
point and not based upon any definition used in the deposition
of the President.
I am sure it was the President's hope and belief that the
false affidavit used in the deposition to bolster his own
testimony would be the end of the matter, but that was not the
case. We know in life that one lie leads to another. And so it
is when we attempt to thwart the administration of justice--one
obstruction leads to another.
Now we move to another key witness, Betty Currie.
By the time the President concluded his deposition, he knew
there were too many details out about his relationship with Ms.
Lewinsky. He knew that the only person who would probably be
talking was Ms. Lewinsky herself. He knew the cover story that
he had carefully created and that was converted into false
statements in the affidavit was now in jeopardy and had to be
backed at this point by the key witnesses, Monica Lewinsky and
Betty Currie. After the deposition, the President needed to do
two things: He had to contact Ms. Lewinsky to see if she was
still on the team, but he also had to make sure that his
secretary, Betty Currie, was lying to protect him. So let's
look at how the concern became a frenzied and concerted effort
to keep the holes plugged in the dike.
Let's look at exhibits 12 and 13.
What happened on the day the deposition--really the night
of the deposition--on January 17. The President finishes
testifying in the deposition around 4 p.m. At 5:38 p.m., the
President telephones Mr. Jordan at home. And then, at 7:13, the
President telephones Ms. Currie at home. At 7:02, the President
places a call to Mr. Jordan's office. And then, at 7:13, he
gets Ms. Currie at home, finally, and asks her to meet with him
on Sunday. It is vitally important that he meet with Ms. Currie
at this point because he knows his whole operation is coming
unglued.
So the next day, on January 18, which is exhibit 13, there
is a whole flurry of activity.
I am not going to go through all of them. You can see the
frantic pace at the White House because at 6:11 in the morning,
the President had some more bad news. The Drudge Report was
released. And that created a greater flurry. Then between 11:49
and 2:55 p.m., two phone calls were made between Mr. Jordan and
the President.
Then, at 5 p.m., we see the meetings. That is on the second
page. At 5 p.m., Ms. Currie meets with the President. And the
President then tells Ms. Currie to find Monica Lewinsky. The
telephone calls were generated, and there was no success in
that.
Then, that evening the President calls Ms. Currie at home
to try once again to see if she had found Monica.
But it was on that day that there was that critical
meeting--on that Sunday--in the Oval Office between Betty
Currie and the President of the United States.
For that reason, we need next to hear from Betty Currie,
the President's personal secretary, as to what occurred during
that most unusual meeting on Sunday following the deposition.
Betty Currie testified in the grand jury that the President
said that he had just been deposed and that the attorneys had
asked several questions about Monica Lewinsky. This is a
violation of the judge's gag order. And the President made some
comments that were not in line. But he had some choices to
make, and he made the wrong choices.
But let's look at exhibit 14, which covers the series of
statements made to Ms. Currie. At this point there is the
testimony of Betty Currie. She is reciting to the grand jury
each of the statements the President made to her after his
grand jury testimony.
The first: ``I was never really alone with Monica, right?''
Second: ``You were always there when Monica was there,
right?''
``Monica came on to me, and I never touched her, right?''
I am not going to read each one of those. You can read
them. You have heard those as well.
But the President is making those simple declaratory
statements to her.
There are three areas that are covered.
First of all, the President makes a case that he was never
alone with Monica Lewinsky.
Second, he is making a point to her that ``she was the
aggressor, not me.''
The third point he is making, ``I did nothing wrong.''
Those are the basic three points of those five statements
that the President made to Betty Currie.
During Betty Currie's grand jury testimony she was asked
whether she believed that the President wished her to agree to
the statements.
Let's look at Betty Currie for a second. She is the
classical reluctant witness. Where are her loyalties? How would
you examine her testimony? Where is she uncomfortable in her
testimony when she is asked the question? How does she shift in
the chair? Those are the kind of ways you have to evaluate the
truthfulness of the testimony, where their loyalties lie, and
their demeanor.
During the questioning she was clearly reluctant.
She was asked a series of questions, and she finally
acknowledges that the President was intending for her to agree
with the statements that were made. She says, ``That is
correct.'' And that is page 74 of Betty Currie's grand jury
testimony.
When the President testified in the August 17 grand jury,
he was questioned about his intentions when he made those five
statements to Ms. Currie in his office on that Sunday. And the
President's explanation is as follows to the grand jury:
The President:
. . . I thought we were going to be deluged by the press
comments. And I was trying to refresh my memory about what the
facts were.
Then he goes on to testify:
So, 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.
Ladies and gentlemen of the Senate, you have to determine
what the purpose of those five statements to Betty Currie were.
Were they to get information or were they to get her to falsely
testify when she was called as a witness? Logic tells us that
the President's argument is that he was just trying to refresh
his memory. Well, so much of a novel legal defense argument.
First, consider the President's options after he left the
deposition.
He could have abided by the judge's gag order and not said
anything.
Second, he could have called Betty Currie in and asked her
an open-ended question: Ms. Currie, or Betty, what do you
remember happened?
The third option was to call her in and to make these
declaratory statements, violate the judge's order, and tamper
with the anticipated testimony of Betty Currie.
That is the course that the President chose. He made sure
it was a face-to-face meeting, not a telephone call. He made
sure that no one else was present. He made sure that the
meeting was on his territory and in his office where he could
feel comfortable and he could utilize the power and prestige of
his office to have the greatest influence on her future
testimony.
After Ms. Currie was in the President's office, he made
short, clear, understandable, declarative statements telling
Ms. Currie what the story was. He was not interested in what
she knew. Why? Because he knew the truth, but he did not want
Ms. Currie to tell the truth. The only way to ensure that was
by telling her what to say, not asking her what she remembered.
You do not refresh someone's memory by telling that person what
he or she remembers, and you certainly do not make the
declarative statements to someone regarding factual scenarios
of which the listener was unaware.
From the statements that were made to her, Betty Currie
could not have had any possible knowledge about whether they
were ever alone, as to whether she came on to him. No. This was
not any attempt for the President to refresh his recollection.
It was witness tampering, pure and simple.
Understanding the seriousness of the President's attempting
to influence the testimony of Ms. Currie, his attorneys have
tried to argue that those statements could not constitute
obstruction of justice because she had not been subpoenaed and
the President did not know that she was a potential witness at
this time. Well, the argument is refuted by both the law and
the facts.
The law is clear that a person may be convicted of
obstructing justice if he corruptly influenced the testimony of
a prospective witness. The witness does not actually have to
give testimony. The witness does not have to be under any
subpoena. The witness does not have to be on any witness list.
And so the law is clear.
Secondly, let's examine the defense in light of the facts.
The President himself brought Ms. Currie into the civil rights
case as a corroborating witness when he repeatedly used her
name in the deposition, and just as significantly the President
had to be concerned about a looming perjury charge against him
in light of his false testimony in the deposition. At least six
times in that deposition the President challenged the
plaintiff's attorneys to question Ms. Currie about the
particular issue.
You don't have it in front of you, but you will see it when
we distribute the copies of my remarks. I will go through those
six times.
At page 58 of the deposition, the President, when asked
whether he was alone with Ms. Lewinsky, said that he was not
alone with her or that Betty Currie was there with Monica.
At page 70, when asked about the last time the President
saw Ms. Lewinsky, he falsely testified he only recalled that
she was there to see Betty.
At page 64, he told the Jones lawyers to ``ask Betty''
whether Lewinsky was alone with him in the White House or not
or with Betty in the White House between the late hours.
At page 65 of the deposition, the President was asked
whether Ms. Lewinsky sent packages to him, and he stated that
Betty handled the packages.
At page 72, the President was asked whether he may have
assisted in any way with a job search. He said he thought Betty
suggested Vernon Jordan talk to her.
At page 74, he said Monica asked Betty to ask someone to
talk to Ambassador Richardson. He asserted Betty as a
corroborating witness at least six times in the deposition.
There is no question that Ms. Currie was a prospective
witness, and the President clearly wanted her to be deposed as
a witness as his ``ask Betty'' testimony demonstrates.
But there is another fact that, thus far, has been
overlooked, and let me draw your attention to this.
Two days before the President's deposition, Betty Currie
receives a call from Michael Isikoff, a reporter with Newsweek
magazine, inquiring about the records, the courier records of
gifts going from Ms. Lewinsky to the President.
You've got a news reporter for a national publication two
days before the President's deposition talking to the
President's secretary, saying, ``I need to see the courier
records at the White House.'' What does Betty Currie do? She
testified that she probably told the President this. Then she
tells Bruce Lindsey, but she also goes to see Vernon Jordan.
Why? Why would the secretary go see Vernon Jordan because she
had a press inquiry? The reason is, as we see later on,
remember, this is January 15. What happened on December 28 that
we will get to a little bit later? On December 28 Betty Currie
went and put those gifts under her bed. Why is she nervous?
Because Mike Isikoff is calling about the gifts that are
presently under her bed, and she is nervous. I would be
nervous. And so she goes to see Bruce Lindsey. She goes to see
Vernon Jordan: I need help. What do I do? And she probably told
the President.
It is all breaking loose, the house of cards is falling
down, and she is either going to report to Mr. Jordan or to
seek advice from him. Either way, she knows it is serious; it
all has legal consequences. And she is a witness to it all.
Not only does Betty Currie's testimony talk about this call
from Michael Isikoff and going to see Vernon Jordan, but Vernon
Jordan's testimony confirms the visit as well.
The President claims he called Ms. Currie in to work on
that Sunday night only to find out what she knew, but the
President knew the truth about the relationship, and if he told
the truth in deposition the day before, he would have had no
reason to be refreshed by Betty Currie.
More importantly, the President's demeanor, Ms. Currie's
reaction, and the suggested lies clearly prove that the
President was not merely interviewing Ms. Currie. Rather, he
was looking for corroboration for his false coverup, and that
is why he coached her. He needed a witness for him, not against
him.
Now, let's go to exhibit 5, Betty Currie's testimony--
excuse me, exhibit 15.
This is Betty Currie's testimony before the grand jury on
January 27, 1998. And Betty Currie is asked about this. Now,
remember, it was on a Sunday that Betty Currie was first called
into the White House to go through these five statements, this
coaching by the President. And then she testified to the grand
jury:
Question: Did there come a time after that that you had
another conversation with the President about some other news
about what was going on? That would have been Tuesday or
Wednesday--when he called you into the Oval Office?
Betty Currie's answer:
It was Tuesday or Wednesday. I don't remember which one this was,
either. But the best I remember, when he called me in the Oval Office,
it was sort of a recapitulation of what we had talked about on Sunday--
you know, ``I was never alone with her''--that sort of thing.
Question: Did he pretty much list the same----
Answer: To my recollection, sir, yes.
Question: And did he say it in sort of the same tone and demeanor
that he used the first time he told you on Sunday?
Answer: The best I remember, yes, sir.
And this needs to be emphasized. Not only was that witness
coaching taking place on Sunday but it took place a couple days
later. It was twice repeated by the President to Betty Currie.
He needed to have her good and in line.
This is more than witness tampering. It is witness
compulsion of false testimony by an employer to a subordinate
employee. This has nothing to do with facts, nothing to do with
media inquiries. It has to do with keeping his team on board,
keeping the ship from sinking, and hiding the facts that are
important. At this point we are not talking about hiding
personal facts from inquiring minds but an effort to impede the
legitimate and necessary functioning of our court system.
And now let's go to the Martin Luther King holiday, almost
exactly a year ago, Monday, January 19. Again, you will see the
example of the frantic search for Monica Lewinsky did continue.
Exhibit 16. I am not going to go through all of this, but I
just want to briefly show the frantic activity on this
particular day.
First of all, you will see Betty Currie is trying to
fulfill her responsibility to get ahold of Ms. Lewinsky. She
uses the pager system, and she says, ``Please call Kay at
home.'' Now ``Kay'' is the code name that is used for Betty
Currie. That is the agreed upon signal. And she uses three
messages: ``Please call Kay. Please call Kay. Please call
Kay.''
Then she starts using different techniques to get her
attention. ``It's a social call.'' And then she later uses it's
a ``family emergency.'' Then she later uses it's ``good news.''
She is using every means possible to get the attention of
Monica Lewinsky. And then at 8:50 a.m. the President telephones
Currie at home. At 8:56 a.m. the President telephones Jordan at
home.
Go on down to 10:56 a.m. ``The President telephones Jordan
at his office.'' And so what is going on here? They are
nervous; they are afraid; it is all breaking loose. They are
trying to get ahold of Monica Lewinsky to find out what is
going on, who she is talking to.
Later that day things continued to destabilize for the
President. At 4:54 p.m. Mr. Jordan learned from the attorney,
Frank Carter, that he no longer represented Ms. Lewinsky, and
so Mr. Jordan's link had been cut off. Mr. Jordan continued to
attempt to reach the President or someone at the White House.
Between 4:58 and 5:22 p.m., he made six calls trying to get
ahold of someone at the White House, the President.
When Mr. Jordan was asked about why he was urgently trying
to get ahold of the White House, he responded, ``Because the
President asked me to get Monica Lewinsky a job'' and he
thought it was ``information they ought to have.'' Jordan
finally reaches the President about 6 p.m. and tells him that
Carter had been fired.
Why this flurry of activity? It shows how important it was
for the President of the United States to find Ms. Lewinsky.
Betty Currie was in charge of contacting Monica, and it could
not happen, it did not happen. Ms. Lewinsky was a co-
conspirator in hiding this relationship from the Federal court
and he was losing control over her. In fact, she ultimately
agreed to testify truthfully, under penalty of perjury, in this
matter. This was trouble for the President.
Let's continue exploring the web of obstruction. But to do
this we have to backtrack to what I have already referred to,
and that was the incident on December 28, the episode with the
gifts.
On December 28, another brick in the wall of obstruction
was laid. It was the concealment of evidence. Ms. Lewinsky
testified that she discussed with the President the fact that
she had been subpoenaed and that the subpoena called for her to
produce gifts. And this is what Ms. Lewinsky was telling the
President at the meeting with him on December 28. She testified
before the grand jury that she recalled telling the President
that the subpoena in question had requested a hatpin and other
items, and this concerned her--the specificity of it. And the
President responded it ``bothered'' him, too.
Well, let's look at the testimony of Ms. Lewinsky, which is
exhibit 17. This is Lewinsky testifying about the meeting.
And then at some point I said to him [the President],
``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.
Not exactly the response you would hope for or expect from
the President. But the answer led to action. Later that day Ms.
Lewinsky got a call from Ms. Currie, who said, ``I understand
you have something to give to me,'' or, according to Ms.
Lewinsky, ``The President said you have something to give me.''
She wasn't exactly sure of the phrase but it was either, ``I
understand you have something to give me,'' what Betty Currie
said, or Betty Currie said, ``The President said you have
something to give to me.''
And so, ladies and gentlemen, if you accept the testimony
of Monica Lewinsky on that point, you must conclude that the
directive to retrieve the gifts came from the President. I will
concede that there is a conflict in the testimony on this point
with the testimony of Betty Currie. Ms. Currie, in her grand
jury testimony, had a fuzzy memory, a little different
recollection. She testified that ``the best she can remember''
Ms. Lewinsky called her. But whenever she was asked further,
she said that maybe Ms. Lewinsky's memory is better than hers
on that issue. But there is helpful evidence to clear up this
discrepancy, or this inconsistency. Monica, you will recall, in
her deposition said she thought that Betty had called her and
she thought that the call came from her cell phone number.
Well, it was not known at the time of the questioning of
Monica Lewinsky, but since then the cell phone record was
retrieved. And you don't have it in front of you, but it will
be available. The cell phone record was retrieved that showed,
on Betty Currie's cell phone calls, a call was made at 3:32
from Betty Currie to Monica Lewinsky. And this confirms the
testimony of Monica Lewinsky that the followup to get the gifts
came from Betty Currie. The only way she would know about it is
if the President directed her to go retrieve the gifts, as was
discussed with Monica earlier.
Now, the President will argue that Monica's timeline does
not fit with the time of the cell phone call. But remember, the
cell phone record was retrieved subsequent to both the
testimony of Monica Lewinsky and Betty Currie before the grand
jury, and therefore the record was not available to refresh the
recollection or to make inquiry with him about that. Monica
Lewinsky's time estimates as to when Betty Currie arrived to
pick up the gifts was based upon her memory without the benefit
of records.
The questions raised by the President on this issue are
legitimate and demonstrate the need to call the key witnesses
to a trial of this case and to assess which version of the
events is believable and substantiated by the corroborating
evidence. This is certainly an area of testimony where the
juror needs to hear from Betty Currie and Monica Lewinsky and
to examine all of the circumstantial evidence and documentary
evidence to determine the truth. It is my belief, based upon
common sense and based upon the documentary evidence, that the
testimony of Monica Lewinsky is supported in the record and it
leads to the conclusion that it was the President who initiated
this retrieval of the gifts and the concealment of the
evidence.
There are many lawyers in this room, and you know that in
Federal cases all across this country judges instruct juries on
circumstantial evidence. We have presented to you a great
amount of direct evidence, grand jury testimony, eyewitness
testimony, documentary evidence. But juries can use
circumstantial evidence as well. There is a typical line from
the instruction that is given in Federal courts to Federal
juries all across the land:
The law makes absolutely no distinction between the weight
or value to be given either to direct or circumstantial
evidence. Nor is a greater degree of certainty required of
circumstantial evidence than of direct evidence.
So I think it is incumbent upon you to evaluate the
circumstances very carefully in addition to the testimony.
Now, let's examine the key question for a moment. Why did
Betty Currie pick up the gifts from Monica Lewinsky? Monica
Lewinsky states that she did not request this and the retrieval
was initiated by the call from Betty Currie. This was after the
meeting with the President. Monica Lewinsky's version is
corroborated by the cell phone record and the pattern of
conduct on the part of Betty Currie. What do I mean by that? As
a loyal secretary to the President, it is inconceivable that
she would go to retrieve gifts that she knows the President is
very concerned about and could bring down the whole house.
Betty Currie, a subordinate employee, would not engage in such
activity on such a sensitive matter without the approval and
direction of the President himself.
In addition, let's look further to the actions of Betty
Currie. It becomes clear that she understands the significance
of these gifts, their evidentiary value in a civil rights case,
and the fact that they are under subpoena. She retrieves these
items, and where does she place them? She hides them under her
bed--significantly, a place of concealment.
Now, let's look at the President's defense. The President
stated in his response to questions 24 and 25, which were
submitted from the House to the President, he was not concerned
about the gifts. In fact, he recalled telling Monica that if
the Jones lawyers request the gifts, she should just turn them
over to them. The President testified he was ``not sure'' if he
knew the subpoena asked for gifts.
Now, why in the world would Monica and the President
discuss turning over gifts to the Jones lawyer if Ms. Lewinsky
had not told him that the subpoena asked for gifts? On the
other hand, if he knew the subpoena requested gifts, why would
he give Monica more gifts on December 28? This seems odd. But
Ms. Lewinsky's testimony reveals the answer. She said that she
never questioned ``that we were ever going to do anything but
keep this private,'' and that means to take ``whatever
appropriate steps need to be taken.'' That is from Monica's
grand jury testimony of August 6.
Why would the President even meet with Monica Lewinsky on
December 28 when their relationship was in question and he had
a deposition coming up? Certainly he knew he would be
questioned about it. Certainly if Monica became a witness she
would be questioned about the relationship, that she would be
asked when was the last time you met with the President, and
now they have to say December 28, if they were going to tell
the truth.
The answer is, the President knew that he had to keep
Monica Lewinsky on the team and he was willing to take more
risks so that she would continue to be a part of the conspiracy
to obstruct the legitimate functions of the Federal court in a
civil rights case.
It should be remembered that the President has denied each
and every allegation of the two articles of impeachment; he has
denied each element of the obstruction of justice charges,
including this allegation that he encouraged a scheme to
conceal evidence in a civil rights case. This straightforward
denial illustrates the dispute in the evidence and testimony.
It sets the credibility of Monica Lewinsky, the credibility of
Betty Currie, the credibility of Vernon Jordan, and others
against the credibility of the President of the United States.
How can you, as jurors, determine who is telling the truth?
I have pointed to the corroborating evidence, the
circumstantial evidence, as well as common sense supporting the
testimony of Monica Lewinsky. But let me ask you two questions:
Can you convict the President of the United States without
hearing personally the testimony of one of the key witnesses?
The second question is: Can you dismiss the charges under this
strong set of facts and circumstances without hearing and
evaluating the credibility of key witnesses?
Let me take this a step further and evaluate the
credibility of the President. Let's first look back at his
testimony on the December 28 meeting that he gave in his
deposition. In that case, he seriously misrepresented the
nature of his meeting with Ms. Lewinsky, and that was the gift
exchange. First he was asked: ``Did she tell you that she had
been served with a subpoena in this case?'' The President
answered flatly: ``No. I don't know if she had been.''
Again, this is his testimony in the deposition. He was also
asked in the deposition if he ``ever talked to Monica Lewinsky
about the possibility of her testifying.'' His answer: ``I'm
not sure,'' he said. He then added that he may have joked that
the Jones lawyers might subpoena every woman he has ever spoken
to, and that ``I don't think we ever had more of a conversation
than that about it. . .''
Not only does Monica Lewinsky directly contradict his
testimony but the President later had to answer questions in
the grand jury about this same set of circumstances and the
President directly contradicted himself. Speaking of this
December 28 meeting, he said that he ``knew by then, of course,
that she had gotten a subpoena'' and they had a ``conversation
about the possibility of her testifying.''
I submit to this body that the inconsistencies of the
President's own testimony, as well as common sense, seriously
diminish his credibility on this issue.
Now let's go forward, once again, to the time period in
which the President gave his deposition in the Paula Jones
case. The President testified under oath on January 17, and
immediately thereafter, remember, he brought Betty Currie in to
present a set of false facts to her, seeking her agreement and
coaching her.
But the President is fully convinced that he can get by
with his false denials because no one will be able to prove
what did or did not happen in the Oval Office. There were no
witnesses, and it boils down to a ``he said, she said''
scenario, and as long as that is the case, he believes he can
win. If the President can simply destroy Monica Lewinsky's
credibility in public and before the grand jury, then he will
escape the consequences for his false statements under oath and
obstruction in the civil rights case. Now, remember, this
viewpoint, though, is all before the DNA tests were performed
on the blue dress, forcing the President to acknowledge certain
items.
In order to carry out this coverup and obstruction, the
President needed to go further. He needed not only Betty Currie
to repeat his false statements but also other witnesses who
would assuredly be called before the Federal grand jury and who
would be questioned by the news media in public forums. And
this brings us to the false statements that the President made
to his White House staff and Presidential aides.
Let's call Sydney Blumenthal and John Podesta to the
witness stand. I concede they would be adverse witnesses. This
is referred to in exhibit 18 that you have in front of you.
First, the testimony of Sydney Blumenthal. Mr. Blumenthal,
to put this in perspective, is testifying about his
conversations when the President called him in to go through
these facts of what happened. So Mr. Blumenthal testified that
``it was at that point that he''--referring to the President--
``gave his account as to what happened to me and he said that
Monica--and it came very fast. 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.' ''
Look at this next line. ``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 the stalker any more.''
He talks about this character in a novel, and I haven't
read that book. But the last line: ``And I said to him, I said,
``When this happened with Monica Lewinsky, were you alone?' He
said, `Well, I was within eyesight or earshot of someone.' ''
Let's go to John Podesta's testimony where he was called in
the same fashion. The President talked to him about what is
happening:
Question: Okay. Share that with us.
Answer: 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.
Question: Okay.
Answer: --that they had not had oral sex.
Very briefly, Dick Morris. You have heard this. I will
refer to the last line: `` `They're just not ready for it,'
meaning the voters. And he--the President--said, `Well, we just
have to win, then.' ''
As the President testified before the grand jury, he knew
these witnesses would be called before the grand jury. At page
106 of the President's testimony before the grand jury--I just
want to confirm this point because it is important--he
testified--the question was: ``You know that they''--and this
is referring to John Podesta, Sydney Blumenthal and his aides--
``might be witnesses, you knew they might be called into the
grand jury, didn't you?''
His answer: ``That's right.''
So there is no question these were witnesses going to
testify before the grand jury. He was giving them false
information, and he did not limit it to that. The false
statements to them constitute witness tampering and obstruction
of justice.
I think there are two significant points in the statements
the President made to his aides.
First of all, the President, who wants to do away with the
politics of personal destruction, indicates a willingness to
destroy the credibility and reputation of a young person who
worked in his office for what reason? In order to preserve not
only his Presidency but, more significantly, to defeat the
civil rights case against him. It is not a matter of saying he
didn't do it because he could have simply uttered a denial, but
he engaged in character assassination that he knew would be
repeated to the Federal grand jury and throughout the public--
she was a stalker, she threatened me, she came on to me--and it
was repeated.
Secondly, he makes it clear in his statements to John
Podesta that he denies any sexual relations with Monica
Lewinsky, including oral sex. There is no quibbling about
definitions in this statement. It clearly reflects an attempt
to deceive, lie, and obstruct our system of justice.
In this case, at every turn, he used whatever means
available to evade the truth, destroy evidence, tamper with
witnesses, and took any other action required to prevent
evidence from coming forward in a civil rights case that would
prove a truth contrary to the President's interest. He had
obstructed the administration of justice before the U.S.
district court in a civil rights case and before the Federal
grand jury. But as we move toward a conclusion, let's not focus
just on the supporting cast we talked about, but we need to
look at the direct and personal actions of the President.
I want to look at exhibit 20. This just summarizes the
seven pillars of obstruction. What did the President do that
constitutes evidence of obstruction?
No. 1, he personally encouraged a witness, Monica Lewinsky,
to provide false testimony.
No. 2, the President had direct involvement in assuring a
job for a witness--underlining ``direct involvement.'' He made
the calls, Vernon Jordan did, and it is connected with the
filing of the false affidavit by that witness.
No. 3, the President personally, with corrupt intentions,
tampered with the testimony of a prospective witness, Betty
Currie.
No. 4, the President personally provided false statements
under oath before a Federal grand jury.
No. 5, by direct and circumstantial evidence the President
personally directed the concealment of evidence under subpoena
in a judicial proceeding.
No. 6, the President personally allowed false
representations to be made by his attorney, Robert Bennett, to
a Federal district judge on January 17.
No. 7, the President intentionally provided false
information to witnesses before a Federal grand jury knowing
that those statements would be repeated with the intent to
obstruct the proceedings before that grand jury and that is the
statements that he made to the aides.
The seven pillars of this obstruction case were personally
constructed by the President of the United States. It was done
with the intent that the truth and evidence would be suppressed
in a civil rights case pending against him. The goal was to
win, and he was not going to let the judicial system stand in
his way.
At the beginning of my presentation, I tried to put this
case into perspective for myself by saying that this proceeding
is the same as to what takes place in every courtroom in
America--the pursuit of truth, seeking equal justice, and
upholding the law. All of that is true. But we know there is
even more at stake in this trial. What happens here affects the
workings of our Constitution, it will affect the Presidency in
future decades, and it will have an impact on a whole
generation of Americans. What is at stake is our Constitution
and the principle of equal justice for all.
I have faith in the Constitution of the United States, but
the checks and balances of the Constitution are carried out by
individuals--individuals who are entrusted under oath with
upholding the trust given to us by the people of this great
land. If I believe in the Constitution, that it will work, then
I must believe in you.
Ladies and gentlemen of the Senate, I trust the
Constitution of the United States. But today it is most
important that I believe in you. I have faith in the U.S.
Senate. You have earned the trust of the American people, and I
trust each of you to make the right decision for our country.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we take another 15-minute break in the proceedings. And I urge
the Senators to return promptly to the Chamber so we can begin
after the 15-minute break.
There being no objection, at 4:51 p.m., the Senate recessed
until 5:10 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to
resume final presentation of the afternoon. Several Senators
have inquired what will happen the balance of the day. I
believe the presentation by Congressman Rogan will be the last
of the day. It is anticipated we will complete today's
presentation around 6:30 or 6:45.
I yield the floor.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, counsel for the
President, Members of the United States Senate, my name is
Congressman James E. Rogan. I represent the 27th District of
California.
May I say at the outset that some of the facts and evidence
you will hear in my presentation may sound familiar in light of
the last presentation. Although at times the facts may appear
to be a crossover, the relevance will be presented in a
different light.
Mr. Manager Hutchinson's presentation offered the evidence
as it relates to the obstruction of justice charge against the
President in article II. I will be inviting this body to view
the evidence within the framework of article I, perjury before
the grand jury.
On behalf of the House of Representatives and in the name
of the people of the United States, I will be presenting to the
Senate evidence against the President to demonstrate he
committed perjury before a Federal grand jury as set forth in
article I of the articles of impeachment.
Article I of the impeachment resolution against President
Clinton alleges that he committed perjury before the grand
jury.
On August 17, 1998, President Clinton swore to tell the
truth, the whole truth, and nothing but the truth. The evidence
shows that contrary to that oath, the President willfully
provided perjurious, false, and misleading statements to the
grand jury in four general areas:
First, he perjured himself when he gave a false accounting
to the grand jury about the nature and details of his
relationship with a 21-year-old intern, Ms. Monica Lewinsky,
who was a subordinate Federal Government employee.
Second, he perjured himself before the grand jury when he
repeated previous perjured answers he gave under oath in a
sexual harassment suit, which was a Federal civil rights action
brought against him by Paula Jones.
Third, he perjured himself before the grand jury when he
repeated previous perjured answers to justify his attorney's
false representations to a Federal judge in the Paula Jones
sexual harassment lawsuit against him.
Finally, he perjured himself before the grand jury when he
testified falsely about his attempts to get other potential
grand jury witnesses to tell false stories to the grand jury,
and to prevent the discovery of evidence in Paula Jones' sexual
harassment lawsuit against him.
In a judicial proceeding, a witness has a very solemn
obligation to tell the truth, the whole truth, and nothing but
the truth. Perjury is a serious crime because our judicial
system can only succeed if citizens are required to tell the
truth in court proceedings. If witnesses may lie with impunity
for personal or political reasons, ``justice'' is no longer the
product of the court system and we descend into chaos. That is
why the U.S. Supreme Court has placed a premium on truthful
testimony and shows no tolerance for perjury.
More than 20 years ago, the Supreme Court addressed this
very concept of perjury and its dangerous effect on our system
of law. Listen to the words of the U.S. Supreme Court:
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. . . . Congress has made the
giving of false answers a criminal act punishable by severe
penalties; in no other way can criminal conduct be flushed into
the open where the law can deal with it.
That is the framework under which the House of
Representatives acted in impeaching the President of the United
States and now respectfully urges this body to call the
President to constitutional accountability.
The key to understanding the facts of this case is to
understand why the President was asked, under oath, questions
about his private life in the first place.
Despite the popular spin, it wasn't because Members of
Congress, or lawyers from the Office of the Independent
Counsel, or a gaggle of reporters suddenly decided to invade
the President's privacy. No. This all came about because of a
claim against the President from when he was the Governor of
Arkansas.
During the discovery phase of the Paula Jones sexual
harassment case against the President, Federal Judge Susan
Webber Wright ordered him to answer questions under oath
relating to any sexual relationship he may have had while
Governor and President with subordinate female Government
employees. These orders are common in similar cases, and the
questions posed to President Clinton are questions routinely
posed to defendants in civil rights sexual harassment cases
every single day in courthouses throughout the land.
During the President's deposition in the Paula Jones case,
he was asked questions about his relationship with Monica
Lewinsky. The judge allowed these questions because they
possibly could lead Ms. Jones to discover if there was any
pattern of conduct to help prove her case. The President
repeatedly denied that he had a sexual relationship with Monica
Lewinsky.
A few days later, the story about his relationship with Ms.
Lewinsky broke in the press. A criminal investigation began to
determine whether the President perjured himself in the Paula
Jones sexual harassment case and obstructed justice by trying
to defeat her claim against him by corrupt means.
On the afternoon of August 17, 1998, President Clinton
raised his right hand and took an oath before the grand jury in
their criminal investigation.
[Text of videotape presentation:]
William Jefferson Clinton, Do you solemnly swear that the
testimony you are about to give in this matter will be the
truth, the whole truth, and nothing but the truth, so help you
God?
Note the incredibly solemn obligation of the oath the
President took:
Do you solemnly swear that the testimony you are about to
give in this matter will be the truth, the whole truth, and
nothing but the truth?
When the President made that solemn pledge, he was not
obliging himself to tell the grand jury the partial truth; he
was not obliging himself to tell the ``I didn't want to be
particularly helpful'' truth; he was not obliging himself to
tell the ``this is embarrassing so I think I'll fudge on it a
little bit'' truth. He was required to tell the truth, the
whole truth, and nothing but the truth, and he made that pledge
in the name of God.
The attorneys for the Office of the Independent Counsel
showed great deference to the President when they questioned
him that day. The President's attorneys were allowed to be
there with him during the entire proceeding so that he could
confer with them at his leisure if he was unsure of how to
respond to a question. As a matter of fact, the attorney who
questioned the President encouraged him to confer with his
lawyers if there arose in the President's mind any reason to
hesitate before answering a question.
The following exchange occurred at the beginning of the
President's testimony. The President was told:
Normally, grand jury witnesses, while not allowed to have
attorneys in the grand jury room with them, can stop and
consult with their attorneys. Under our arrangement today, your
attorneys are here and present for consultation and you can
break to consult them as necessary. . . . Do you understand
that, sir?
The President responded: ``I do understand that.''
As a practical matter, the President had three options as
he appeared before the grand jury to testify.
First, the President could tell the truth about his true
relationship with Ms. Lewinsky.
However, the evidence will clearly show that the President
rejected the option of telling the truth.
Second, the President knew he could invoke his fifth
amendment privilege against self-incrimination.
The independent counsel's attorney explicitly reminded the
President about his right to refuse to answer any question that
might tend to incriminate him.
The President was asked:
You have a privilege against self-incrimination. If a
truthful answer to any question would tend to incriminate you,
you can invoke the privilege and that invocation will not be
used against you. Do you understand that?
The President's response was: ``I do.''
The President knew he had the right to refuse to answer any
incriminating questions and that no legal harm would have come
to him for doing so.
But he rejected this option, just as he rejected the option
of telling the truth, the whole truth, and nothing but the
truth.
Instead, he selected a third path.
He continued to lie about corrupt efforts to destroy Paula
Jones' civil rights lawsuit against him.
If a trial is permitted before this body where live
witnesses can be called and where their credibility can be
scrutinized, the evidence will show this distinguished body
that the course the President charted was a course of perjury.
Despite the President's unique level of judicial
sophistication and expertise, the attorneys at the grand jury
were careful to make sure the President understood his
responsibilities to tell the truth, the whole truth, and
nothing but the truth.
They did this at the outset of his testimony, before any
questions were asked that might tempt the President to lie
under oath.
And they specifically warned him that if he were to lie or
intentionally mislead the grand jury, he could face perjury and
obstruction of justice charges, both of which are felonies
under Federal law.
This exchange occurred before the President's testimony:
Q: Mr. President, you understand that your testimony here
today is under oath?
A: I do.
Q: And you understand that because you have sworn to tell
the truth, the whole truth, and nothing but the truth, that if
you were to lie or intentionally mislead the grand jury, you
could be prosecuted for perjury and/or obstruction of justice?
A: I believe that's correct.
Q: Is there anything that . . . I've stated to you
regarding your rights and responsibilities that you would like
me to clarify or that you don't understand?
A: No, sir.
Despite this ominous warning, the prosecutors continued
emphasizing the need for the President to resist lying to the
grand jury.
Still intent on making sure the President understood his
obligations, the attorneys further advised him:
Q: Mr. President, I would like to read for you a portion of
Federal Rule of Evidence 603, which discusses the important
function the oath has in our judicial system.
It says that the purpose of the oath is . . . calculated to
awaken the witness' conscience and impress the witness' mind
with the duty to tell the truth.
Could you please tell the grand jury what that oath means
to you for today's testimony?
A: I have sworn an oath to tell the grand jury the truth,
and that's what I intend to do.
When the President said in that very last answer I just
read that he swore an oath to tell the grand jury ``the
truth,'' the prosecutor immediately followed up with this
question. Here is what he was told.
Question to the President:
Q: You understand that [the oath] requires you to give the
whole truth, that is, a complete answer to each question, sir?
A: I will answer each question as accurately and fully as I
can.
One would think these repetitive explanations would be
enough to warn even the most legally unsophisticated witness
about the need to treat a grand jury criminal investigation
seriously, and the need to tell the whole truth at any cost.
No reasonable person could believe at this point that the
President did not understand his obligations.
Yet, just to be sure, the attorneys again impressed on the
President his solemn duty to tell the truth:
Question to the President:
Q: Now, you took the same oath to tell the truth, the whole
truth, and nothing but the truth on January 17th, 1998, in a
deposition in the Paula Jones litigation; is that correct, sir?
A: I did take an oath then.
Q: Did the oath you took on that occasion mean the same to
you then as it does today?
A: I believed then that I had to answer the questions
truthfully. That is correct. . . .
Q: And it meant the same to you then as it does today?
A: Well, no one read me a definition then and we didn't go
through this exercise then.
I swore an oath to tell the truth, and I believed I was
bound to be truthful and I tried to be.
Having just received his ``refresher course'' on either
``taking the fifth'' and remaining silent, or telling the whole
truth and nothing but the truth, the President acknowledged he
was required to tell the truth when he gave answers to
questions 8 months earlier in the Paula Jones sexual harassment
civil rights lawsuit.
Question to the President:
Q: At the Paula Jones deposition, you were represented by
Mr. Robert Bennett, your counsel, is that correct?
A: That is correct.
Q: He was authorized by you to be your representative
there, your attorney, is that correct?
A: That is correct.
Q: Your counsel, Mr. Bennett, indicated . . . and I'm
quoting, ``The President intends to give full and complete
answers as Ms. Jones is entitled to have.''
My question to you is, do you agree with your counsel that
a plaintiff in a sexual harassment case is, to use his words,
entitled to have the truth?
A: I believe that I was bound to give truthful answers,
yes, sir.
Q: But the question is, sir, do you agree with your counsel
that a plaintiff in a sexual harassment case is entitled to
have the truth?
A. I believe when a witness is under oath in a civil case,
or otherwise under oath, the witness should do everything
possible to answer the questions truthfully.
Thus, the groundwork was laid for the President to testify
under oath.
He knew how the rules worked respecting testimony before
the grand jury.
If a question was vague or ambiguous, the President could
ask for a clarification.
If he was unsure how to answer, or indeed whether to answer
a question, he could stop the questioning, take a break, and
consult privately with his attorneys who were present with him.
If giving an answer would tend to incriminate him, he could
refuse to answer the question by claiming his fifth amendment
rights.
But if, after all of this, he decided to give an answer,
the answer he gave was required to be the truth, the whole
truth, and nothing but the truth. And it was no different than
the obligation when he testified in the Paula Jones
deposition--the same oath, the same obligation.
Let's look at how the President chose to meet his
obligation.
As noted in my opening remarks, the President's grand jury
perjury is the basis for article I of the impeachment
resolution. The evidence shows, and live witnesses clearly will
demonstrate, that the President repeatedly committed perjury
before the grand jury when he testified as a defendant in a
sexual harassment civil rights lawsuit against him.
He intentionally failed in his lawful obligation to tell
the truth in four general areas. First, the President committed
perjury before the grand jury when he testified about the
nature of his relationship with Monica Lewinsky, a 21-year-old
White House intern who, by definition, was a subordinate
Government employee.
On December 5, 1995, Monica Lewinsky's name appeared on the
Paula Jones witness list. Later, the President was ordered by
Federal Judge Susan Webber Wright to answer questions about
Monica Lewinsky because the President was a defendant in a
sexual harassment case.
At his deposition in the Paula Jones case, the President
was shown a definition approved by Judge Wright of what
constitutes sexual relations. I am going to read the definition
that was presented to the President.
And let me say at the outset that I am going to slightly
sanitize it. You have in your materials, Members of this body,
a copy of the actual definition that was given to you, so you
will be able to understand precisely what was put before the
President.
Definition of sexual relations:
For the purposes of this deposition, a person engages in
sexual relations when the person knowingly engages in or causes
contact with the [certain enumerated body parts] of any person
with an intent to arouse or gratify the sexual desire of any
person.
Members of the Senate, just for clarification, I did not
feel the need to actually relate to this body what those
enumerated body parts are.
After reviewing the deposition, the President then denied
that he ever had a sexual relationship with Monica Lewinsky. As
we have already seen, from the day in January when the
President testified in the Jones deposition until the day he
appeared in August for his grand jury testimony, he vehemently
denied ever having a sexual relationship with Monica Lewinsky.
Listen to the President addressing the American people on
the subject of his credibility. The date is January 26, 1998, 5
days after the Lewinsky story broke in the press.
[Text of videotape presentation:]
``But 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--Miss
Lewinsky.
``I never told anybody to lie--not a single time. Never.
These allegations are false. And I need to go back to work for
the American people.
``Thank you.''
Beginning in January 1998, the President went on an 8-month
campaign, both under oath and in the press, denying any sexual
relationship with Monica Lewinsky in any way, shape, or form.
But 8 months after his deposition testimony and these
passionate denials, the tide had turned against his story. By
August, Monica Lewinsky was now cooperating with the office of
the independent counsel. If she was telling the truth in her
sworn testimony, then the President's January denial in the
Paula Jones case would have been a clear case of him committing
perjury and obstructing justice.
Why? Because she was describing, in very graphic detail,
conduct occurring between her and the President that clearly
fit the definition of ``sexual relations'' as used in the Paula
Jones deposition--conduct that he repeatedly denied under oath.
So by the time the President sat down for his grand jury
testimony to answer these questions under oath, he had put
himself in a huge box. He could not continue the outright lie
because Ms. Lewinsky had turned over her blue dress for DNA
testing, and at the time of his grand jury testimony he didn't
know what the results of that FBI test were. Under such
circumstances, continuing the lie was too risky of a strategy
even for the most accomplished of gamblers. But if he told the
truth, his earlier perjury and obstruction of justice would
have ended his Presidency. He was sure he would have been
driven from office.
Remember that the President had actually authorized that a
poll be taken for him by Dick Morris, and the poll wasn't just
taken on whether the American people would forgive him for
adultery; the President asked Dick Morris to poll in two other
areas. He asked Dick Morris to poll whether the American people
would forgive him for perjury and obstruction of justice. When
he got the poll results back, he learned that the American
people would forgive him for the adultery but they would not
forgive him for perjury or for obstruction of justice.
Once he got the bad news from Dick Morris that his
political career was over if he perjured himself, he told Dick
Morris, ``We'll just have to win.'' So at his grand jury
testimony, once the first question was asked about his
relationship with Monica Lewinsky, the President produced a
prepared statement and read from it. This prepared statement he
read to the grand jury on August 17, 1998, was the linchpin in
his plan to ``win.''
[Text of videotape presentation:]
Q. Mr. President, were you physically intimate with Monica
Lewinsky?
A. Mr. Bittman, I think maybe I can save you and the grand
jurors a lot of time if I read a statement, which I think will
make it clear what the nature of my relationship with Ms.
Lewinsky was and how it related to the testimony I gave, what I
was trying to do in that testimony. And I think it will perhaps
make it possible for you to ask even more relevant questions
from your point of view. And, with your permission, I'd like to
read that statement.
Q. Absolutely. Please, Mr. President.
A. 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 17th, 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. I take full responsibility for my actions. While
I will provide the grand jury whatever other information I can,
because of privacy considerations affecting my family, myself,
and others, and in an effort to preserve the dignity of the
office I hold, this is all I will say about the specifics of
these particular matters.
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 of
sexual relations, as I understood it to be defined at my
January 17th, 1998, deposition, and questions concerning
alleged subordination of perjury, obstruction of justice and
intimidation of witnesses.
That . . . is my statement.
Beyond that statement, the President generally refused to
answer specific questions about his relationship with Monica
Lewinsky. The President used that prepared statement as a
substitute answer for specific questions about his conduct with
Ms. Lewinsky 19 separate times during his testimony before the
grand jury. The purpose of the prepared statement was to avoid
answering the types of specific harassment lawsuit questions
for which the U.S. Supreme Court and Judge Susan Webber Wright
had earlier cleared the way. The evidence shows the President
used this prepared statement in order to justify the perjurious
answers he gave at his deposition which were intended to affect
the outcome of the Paula Jones case. The fact that this
statement was prepared in advance shows his intent to mislead
the grand jury in this very area. Ironically, this prepared
statement was supposed to inoculate the President from perjury.
Instead, it opened him up to 19 more examples of giving
perjurious, false, and misleading answers under oath.
For example, in that prepared statement, the President said
his sexual contact with Ms. Lewinsky began in 1996, and not in
1995, as Ms. Lewinsky had testified. This was not a mere slip
of memory over a meaningless timeframe; there is a discrepancy
in the dates for a reason. You see, under the President's
version, in 1996 Monica Lewinsky was a paid White House
employee. Under the facts as testified to by Ms. Lewinsky, when
the relationship really began in 1995, she was not a paid
employee at the White House; she was a young, 21-year-old White
House intern.
The concept of a President having a sexual relationship in
the White House with a young intern less than half his age was
a public relations disaster for the President, as everyone
vividly remembers. It is clear that the President somehow
viewed the concept as less combustible if he could take the
``young intern'' phrase out of the public lexicon. Yet in his
deposition testimony, the President admitted he met her and saw
her when she was an intern working in the White House in
November 1995, during the Government shutdown. Monica Lewinsky
confirmed this. In fact, she testified that the first time she
ever spoke to the President was on November 15, 1995, during
the Government shutdown. And she also said that the very first
time that she ever spoke to the President was the same day he
invited her back to the Oval Office and began a sexual
relationship with her.
It is obvious that the reference in the President's
prepared statement to the grand jury that this relationship
began in 1996 was intentionally false.
The President's statement was intentionally misleading when
he described being alone with Ms. Lewinsky only on certain
occasions. Actually, they were alone in the White House at
least 20 times and had at least 11 sexual encounters at the
White House. The President attempted to use language that
subtly minimized the number of times they were alone.
The President's statement was intentionally misleading when
he described his telephone conversations with Monica Lewinsky
as ``occasional.'' In fact, there are at least 55 documented
telephone conversations between the President of the United
States and the young intern. And without going into further
graphic detail, the evidence shows that, at least on 17 of
those occasions, those conversations included much more than
mere sexual banter, as the President described it.
The most unsettling part of that statement was uttered near
the close. Listen to what the President said: ``I regret that
what began as a friendship came to include this conduct.''
``Friendship.'' The very day the President met and spoke with a
young White House intern for the first time was the day he
invited her back to the Oval Office to perform sex acts on him.
In fact, Monica Lewinsky said that after their sexual
relationship was over a month old, she didn't even think the
President knew her name. The President's statement about his
relationship with Monica Lewinsky beginning as a friendship is
a callous and deceptive mischaracterization of how his
relationship with this young woman really began.
Thus, the President began his deposition testimony by
reading a false and misleading statement to the grand jury. He
then used that statement as an excuse not to answer specific
questions that were directly relevant to allowing the grand
jury to complete its criminal investigation. Had he given
specific answers to specific questions about the true nature of
his relationship, the grand jury would have been able to learn
the whole truth about whether the President perjured himself
and obstructed justice in the Paula Jones sexual harassment
civil rights lawsuit.
Paula Jones had a legal and constitutional right to learn
if the President, while as President or Governor, used his
position of power and influence to get sexual favors from
subordinate female employees in the workplace or to reward
subordinate female employees for granting such favors to him.
Instead, the President intentionally provided on 19 separate
occasions a misleading statement instead of giving a true
characterization of his conduct, as required by his oath.
He had no legal or constitutional right to refuse to answer
such questions without claiming a fifth amendment privilege and
then allowing Judge Wright to make a determination as to
whether the privilege applied. The President's preliminary
statement delivered 19 times was an initial shot across the
perjury bow offered by the President throughout his grand jury
testimony. It showed a premeditated effort to thwart the grand
jury's criminal investigation, to justify his prior wrongdoing,
and to deny Paula Jones her constitutional right to bring
forward her claim in a court of law.
The President gave further perjurious, false, and
misleading testimony regarding the nature and details of his
relationship with Monica Lewinsky. One of the ways the
President tried to justify his perjurious answers in the Jones
deposition about his relationship was to deconstruct the
English language. Remember, the President was shown a copy of
the definition of ``sexual relations'' that Judge Wright
approved in his January deposition. This definition was
directed by Judge Wright to be used as the guide under which
the President was to answer questions about his relationship
with Monica Lewinsky. After carefully reviewing that
definition, the President said under oath that it did not apply
to his relationship with her.
It is important to remember that at the time the President
testified that he never had sexual relations with Monica
Lewinsky, this was not a risky perjury strategy. After all, he
had successfully used Vernon Jordan to get Monica Lewinsky a
good job in New York, despite her questionable qualifications.
She had filed a false affidavit in the Jones case denying a
sexual relationship with the President. She and the President
had previously agreed to comprehensive cover stories to deny
the truth of their relationship if anyone ever confronted them
about it. And the bevy of gifts the President had given to
Monica were now nestled safely under Betty Currie's bed so that
they would never be produced to or discovered by Mrs. Jones'
attorneys in compliance with their subpoena to have those gifts
produced.
The perjury strategy was a safe bet in January at his
deposition, but it soon turned upside down for the President.
By the time of his grand jury testimony in August, the
President knew things had changed drastically but not in his
favor. In light of Ms. Lewinsky's cooperation with the
independent counsel, the impending FBI report on the DNA
testing on the blue dress, and the President's decision not to
confess to his crime, the President needed to come up with some
excuse. Here is how the President, at his August grand jury
appearance, tried to explain away his January deposition denial
of engaging in sexual relations with Monica Lewinsky.
[Text of videotape presentation:]
Q. Did you understand the words in the first portion of the
[Jones deposition] exhibit, Mr. President, that is, ``For the
purposes of this deposition, a person engages in `sexual
relations' when the person knowingly engages in or causes . .
.''?
Did you understand, do you understand the words there in
that phrase?
A. Yes . . . I can tell you what my understanding of the
definition is, if you want . . . My understanding of this
definition is it covers contact by the person being deposed
with the enumerated areas, if the contact is done with an
intent to arouse or gratify. That's my understanding of the
definition.
Q. What did you believe the definition to include and
exclude? What kinds of activities?
A. I thought the definition included any activity by the
person being deposed, where the person was the actor and came
into contact with those parts of the bodies with the purpose or
intent of gratification, and excluded any other activity. For
example, kissing's not covered by that, I don't think.
Q. Did you understand the definition to be limited to
sexual activity?
A. Yes, I understood the definition to be limited to
physical contact with those areas of the body with the specific
intent to arouse or gratify. That's what I understood it to be.
Q. What specific acts did the definition include, as you
understood the definition on January 17th, 1998?
A. Any contact with the areas that are mentioned, sir. If
you contacted those parts of the body with an intent to arouse
or gratify, that is covered.
Q. What did you understand . . .
A. The person being deposed. If the person being deposed
contacted those parts of another person's body with an intent
to arouse or gratify, that was covered.
If that answer sounds confusing to you, there is a reason
for that. It was meant to be.
What the President now was saying to the grand jury is that
during their intimate relationship in the Oval Office, Monica
Lewinsky had sexual relations with him; he didn't have sexual
relations with her.
Consider that for a minute.
The President is asking everyone to believe that between
the years 1995 and 1997, while Monica Lewinsky was engaged in a
pattern of explicit availability for him as she described in
her testimony, the President carefully avoided having any
intimate contact with her as described in Judge Wright's very
detailed definition.
According to the President, since he never intimately
touched her as described in the definition--she only touched
him--then he was under no obligation to answer questions in the
harassment suit about Monica Lewinsky as Federal Judge Susan
Webber Wright ordered him to do under oath.
Not only does the President's claim strain all boundaries
of common sense; it is directly in conflict with Monica
Lewinsky's detailed and corroborated accounts of their
relationship.
As if this ridiculous expansion of Judge Wright's
definition of what constituted sexual relations wasn't enough,
the President then decided to take his interpretation of the
judge's definition one step further. He added a new element as
to why he claimed the definition didn't apply to him.
When asked again, at his grand jury testimony, what he
thought the definition of sexual relations meant, here is the
new twist that the President came up with.
[Text of videotape presentation:]
A. As I remember from the previous discussion this was some
kind of definition that had something to do with sexual
harassment. So, that implies it's forcing to me. And I--there
was never any issue of forcing in the case involving--well, any
of these questions they were asking me. They made it clear in
this discussion I just reviewed that what they were referring
to was intentional sexual conduct, not some sort of forcible
abusive behavior.
So I basically--I don't think I paid any attention to it
because it appeared to me that that was something that had no
reference to the facts that they admitted they were asking me
about.
The President now took the position that the definition
didn't apply to him because it would only have applied if he
forced himself on Monica Lewinsky. Remember the definition. And
I will read it again:
For the purposes of this deposition, a person engages in
sexual relations when the person knowingly engages in or
causes--
(1) contact with the [certain enumerated body parts] of any
person with an intent to arouse or gratify the sexual desire of
any person[.]
As you can see, this straightforward definition did not
include the subject of force or harassment.
Yet when the independent counsel's attorney tried to
clarify the President's newfound position, the President gave
no ground. He simply plowed ahead with his new interpretation.
[Text of videotape presentation:]
Q. I'm just trying to understand, Mr. President. You
indicated that you put the definition in the context of a
sexual harassment case . . .
A. No, no, I think it was not in the context of sexual
harassment. I just re-read those four pages, which obviously
the grand jury doesn't have. But there was some reference to
the fact that this definition apparently bore some--had some
connection to some definition in another context and that this
was being used not in that context, not necessarily in the
context of sexual harassment.
So I would think that this causes would be--means to force
someone to do something. That's what I read it. That's the only
point I'm trying to make. Therefore, I did not believe that any
one had ever suggested that I had forced anyone to do anything
and I did not do that. And so, that could not have had any
bearing on any questions relating to Ms. Lewinsky.
The evidence clearly shows from Monica Lewinsky's sworn
testimony that the President deconstructed the English language
to deny Paula Jones the opportunity to find out if other
witnesses were out there who would help bolster her case
against the President, and she was legally entitled to do that
under our sexual harassment laws.
No reasonable interpretation of the President's testimony
could be made that he fulfilled his legal obligation to testify
to the truth, the whole truth, and nothing but the truth.
His statements were perjurious. They were designed to
defeat Paula Jones' right to pursue her sexual harassment civil
rights lawsuit against this President.
And by the way, in his testimony, the President conceded
that if Monica Lewinsky's recitation of the facts was true, he
would have perjured himself both in his deposition testimony
and in repeating his denials before the grand jury. Listen to
this.
[Text of videotape presentation:]
Q. And you testified that you didn't have sexual relations
with Monica Lewinsky in the Jones deposition under that
definition, correct?
A. That's correct, sir.
Q. If the person being deposed touched the genitalia of
another person, would that be in--with the intent to arouse the
sexual desire, arouse or gratify, as defined in definition one,
would that be, under your understanding, then and now, sexual
relations?
A. Yes, sir.
Q. Yes, it would?
A. Yes, it would if you had a 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.
Q. So you didn't do any of those three things with Monica
Lewinsky?
A. You are free to infer that my testimony is that I did
not have sexual relations as I understood this term to be
defined.
So, who is telling the truth? The only way to really know
is to bring forth the witnesses, put them under oath and give
each juror, each Member of this body, the opportunity to make
that determination of credibility because the record shows that
Monica Lewinsky delivered consistent and detailed testimony
under oath regarding many specific encounters with the
President that clearly fell within the definition of sexual
relations in the Jones deposition.
Monica Lewinsky's memory and accounts of these incidents
are amazingly corroborated by her recollection of dates, places
and phone calls which correspond with the official White House
entrance logs and phone records.
Monica Lewinsky's testimony is further corroborated through
DNA testing and the testimony of her friends and family
members, to whom she made near contemporaneous statements about
the relationship.
Most importantly, Monica Lewinsky had every reason to tell
the truth to the grand jury. She was under a threat of
prosecution for perjury, not only for her grand jury testimony
but also for the false affidavit she filed on behalf of the
President in the Jones case.
She knew then and she knows today that her immunity
agreement could be revoked at any time if she lies under oath
or if she lied under oath in the past. Truthful testimony was
and remains a condition for her immunity from prosecution.
By way of contrast, the President was under obligation to
give complete answers. Instead, he offered false answers that
violated his oath to tell the truth, the whole truth, and
nothing but the truth. And incidentally, during his grand jury
testimony, the President actually suggested that he had a right
to give less than complete answers. Why? Because he questioned
the motives of Ms. Jones in bringing her lawsuit.
If this standard is acceptable, what does that do to the
search for the truth when an oath is administered in a
courtroom to one who claims to question the ``motives'' of
their opponent in a trial? This suggestion has no basis in law.
And it is destructive to the truth-seeking function of the
courts.
The President's perjurious legal hairsplitting used to
bypass the requirement of telling the complete truth denied
Paula Jones her constitutional right to have her day in court
and an orderly disposition of her claim in the sexual
harassment case against the President.
To dismiss this conduct with a shrug because it is ``just
about sex'' is to say that the sexual harassment laws
protecting women in the workplace do not apply to powerful
employers or others in high places of privilege. As one wag
recently noted, if this case is ``just about sex,'' then
robbery is just a disagreement over money.
Next, the President perjured himself before the grand jury
when he repeated previous perjured answers he gave in the
deposition of the Paula Jones case. In his grand jury testimony
in August, the President admitted he had to tell the truth, the
whole truth, and nothing but the truth when he testified in the
Paula Jones deposition.
The question to the President:
Now, you took the same oath to tell the truth, the whole
truth, and nothing but the truth on January 17th, 1998, in a
deposition in the Paula Jones litigation; is that correct, sir?
A. I did take an oath then.
Q. Did the oath you took on that occasion mean the same to
you then as it does today?
A. I believe then that I had to answer the questions
truthfully; that is correct.
When the President testified in his January deposition, he
knew full well that Monica Lewinsky's affidavit filed in the
case stating that they never had sexual relations was false.
Yet when this affidavit was shown to him at the deposition, he
testified that her false claim was, in his words, ``absolutely
true.''
He knew that the definition of ``sexual relations'' used in
the earlier Jones deposition was meant to cover the same
activity that was mentioned in Monica Lewinsky's false
affidavit. Rather than tell the complete truth, the President
lied about the relationship, the cover stories, the affidavit,
the subpoena for gifts, and the search for a job for Ms.
Lewinsky.
Later he denied to the grand jury in August that he
committed any perjury during his January deposition. This
assertion before the grand jury that he testified truthfully in
the Jones case is in and of itself perjurious testimony because
the record is clear he did not testify truthfully in January in
the Paula Jones case. He perjured himself.
Thus, when the President testified before the grand jury in
August, he knew he had given perjurious answers in the January
deposition. If the President really thought, as he testified,
that he had told the truth in his January deposition testimony,
he would not have related a false account of events to his
secretary, Betty Currie, whom he knew, by his own admission,
might be called as a witness in the Jones case; he would not
have repeatedly denied he was unable to recall being alone with
Monica Lewinsky; and he would not have told false accounts to
his aides whom he knew, by his own admission, were potential
witnesses in later proceedings.
The evidence of perjury and obstruction of justice is
overwhelming in this case. He continued to use illegal means to
defeat Ms. Jones' constitutional right to bring her harassment
case against him.
Next, the President committed perjury before the grand jury
when he testified that he did not allow his attorney to make
false representations while referring to Monica Lewinsky's
affidavit before the judge in the Jones case, an affidavit that
he knew was false.
Remember, at the Jones deposition in January 1998, Monica
Lewinsky previously had filed a false affidavit that said, ``I
have never had a sexual relationship with the President'' and
that she had no relevant information to provide on the subject
to Ms. Jones.
When Ms. Jones' attorneys attempted to question the
President about his relationship with Ms. Lewinsky, the
President's attorney, Mr. Bennett, objected to him even being
questioned about the relationship.
Mr. Bennett claimed that in light of Monica Lewinsky's
affidavit saying that there was no sexual relationship between
the two, and there never had been, that Paula Jones' lawyer had
no good faith belief even to question the President about a
relationship with Monica Lewinsky.
Listen to what Mr. Bennett told Judge Wright in the
deposition.
[Text of videotape presentation:]
Mr. Bennett. Your Honor, excuse me, Mr. President, I need
some guidance from the Court at this point. I'm going to object
to the innuendo. I'm afraid, as I say, that this will leak. I
don't question the predicates here. I question the good faith
of counsel, the innuendo in the question. Counsel is fully
aware that Ms. Jane Doe 6 [Monica 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, and yet listening to the innuendo in
the questions----
Judge Wright. No, just a minute, let me make my ruling. I
do not know whether counsel is basing this question on any
affidavit, but I will direct Mr. Bennett not to comment on
other evidence that might be pertinent and could be arguably
coaching the witness at this juncture. Now, Mr. Fisher is an
officer of this court, and I have to assume that he has a good
faith basis for asking the question. If in fact he has no good
faith basis for asking this question, he could later be
sanctioned. If you would like, I will be happy to review in
camera any good faith basis he might have.
Mr. Bennett. Well, Your Honor, with all due respect, I
would like to know the proffer. I'm not coaching the witness.
In preparation of the witness for this deposition, the witness
is fully aware of Ms. Jane Doe 6's (Monica Lewinsky's)
affidavit, so I have not told him a single thing he doesn't
know, but I think when he asks questions like this where he's
sitting on an affidavit from the witness, he should at least
have a good faith proffer.
Judge Wright. Now, I agree with you that he needs to have a
good faith basis for asking the question.
Mr. Bennett. May we ask what it is, Your Honor?
Judge Wright. And I'm assuming that he does, and I will be
willing to review this in camera if he does not want to reveal
it to counsel.
Mr. Bennett. Fine.
Mr. Fisher. I would welcome an opportunity to explain to
the Court what our good faith basis is in an in camera hearing.
Judge Wright. All right.
Mr. Fisher. I would prefer that we not take the time to do
that now, but I can tell the Court I am very confident there is
substantial basis.
Judge Wright. All right, I'm going to permit the question.
He's an officer of the Court, and as you know, Mr. Bennett,
this Court has ruled on prior occasions that a good faith basis
can exist notwithstanding the testimony of the witness, of the
deponent, and the other party.
May I say as an aside that by presenting that, I am in no
way questioning the quality or the integrity of the President's
attorney, Mr. Bennett, on that day. Mr. Bennett was doing his
job as the President's lawyer. He had an affidavit from Monica
Lewinsky that said none of this ever happened. And so I hope
that none of you will assume that by my showing this deposition
tape today I am trying to draw any unfair inference against the
President's attorney on that date. But you can tell from what
you have just observed that Mr. Bennett was using Monica
Lewinsky's false affidavit in an attempt to stop questioning of
the President about Ms. Lewinsky.
What did the President do during that exchange? He sat
mute. He did not say anything to correct Mr. Bennett, even
though the President knew that the affidavit upon which Mr.
Bennett was relying was utterly false.
Judge Wright overruled Mr. Bennett's objection and allowed
the questioning about Monica Lewinsky to proceed.
Later in the deposition, Mr. Bennett read to the President
the portion of Ms. Lewinsky's affidavit in which she denied
having a sexual relationship with the President. Mr. Bennett
then asked the President, who was under oath, if Ms. Lewinsky's
statement that they never had a sexual relationship was true
and accurate.
Listen to the President as he responds.
[Text of videotape presentation:]
Q: In paragraph eight of her affidavit, she says this, ``I
have never had a sexual relationship with the President, he did
not propose that we have a sexual relationship, he did not
offer me employment or other benefits in exchange for a sexual
relationship, he did not deny me employment or other benefits
for reflecting a sexual relationship.''
Is this a true and accurate statement as far as you know
it?
A: That is absolutely true.
The President's answer: ``That is absolutely true.''
When President Clinton was asked during his grand jury
testimony 8 months later how he could have sat silently at his
earlier deposition while his attorney made the false statement
that ``there is no sex of any kind,'' in any manner, shape, or
form, to Judge Wright, the President first said that he was not
paying ``a great deal of attention'' to Mr. Bennett's comments.
[Text of videotape presentation:]
Q. Mr. President, I want to--before I go into a new subject
area, briefly go over something you were talking about with Mr.
Bittman. The statement of your attorney, Mr. Bennett, at the
Paula Jones deposition--counsel is fully aware--it's page 54,
line 5. ``Counsel is fully aware that Ms. Lewinsky is filing,
has an affidavit, which they were in possession of, saying that
there was absolutely no sex of any kind in any manner, shape or
form with President Clinton.'' That statement was made by your
attorney in front of Judge Susan Webber Wright.
A. That's correct.
Q. Your--that statement is a completely false statement.
Whether or not Mr. Bennett knew of your relationship with Ms.
Lewinsky, the statement that there was ``no sex of any kind in
any manner, shape or form with President Clinton'' was an
utterly false statement. Is that correct?
A. It depends upon what the meaning of the word ``is''
means. If ``is'' means is, and never has been, that's one
thing. If it means, there is none, that was a completely true
statement. But as I have testified--I'd like to testify again--
this is--it is somewhat unusual for a client to be asked about
his lawyer's statements instead of the other way around. I was
not paying a great deal of attention to this exchange. I was
focusing on my own testimony.
The President added to this explanation he was giving to
the attorney questioning him. This is what the President said:
And I'm not sure . . . as I sit here today that I sat there
and followed all these interchanges between the lawyers. I'm
quite sure that I didn't follow all the interchanges between
the lawyers all that carefully. And I don't really believe,
therefore, that I can say Mr. Bennett's testimony or statement
is testimony and is imputable to me. I didn't--I don't know
that I was really paying attention, paying that much attention
to him.
This denial of the President while his attorney was
proffering a false statement to Judge Wright in an effort to
keep the Paula Jones lawyers from even questioning the
President about his relationship with Monica Lewinsky simply
does not withstand the test of truth. The videotape of the
President's January deposition shows the President paying very
close attention to Mr. Bennett when Mr. Bennett was making the
statement about ``no sex of any kind.''
View again the video clip of the President during Mr.
Bennett's argument that the Jones lawyers have no right to ask
questions about Monica Lewinsky, only this time watch the
President as he focuses on his lawyer speaking about one of the
most important subjects he has ever faced in his entire life--
the survival of his Presidency.
[Text of videotape presentation:]
Mr. Bennett. Your Honor, excuse me, Mr. President, I need
some guidance from the Court at this point. I'm going to object
to the innuendo. I'm afraid, as I say, that this will leak. I
don't question the predicates here. I question the good faith
of counsel, the innuendo in the question. Counsel is fully
aware that Ms. Jane Doe 6 [Monica 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, and yet listening to the innuendo in
the questions----
Judge Wright. No, just a minute, let me make my ruling. I
do not know whether counsel is basing this question an any
affidavit, but I will direct Mr. Bennett not to comment on
other evidence that might be pertinent and could be arguably
coaching the witness at this juncture. Now, I Mr. Fisher is as
officer of this court, and I have to assume that he has a good
faith basis for asking the question. If in fact he has no good
faith basis for asking this question, he could later be
sanctioned. If you would like, I will be happy to review in
camera any good faith basis he might have.
Mr. Bennett. Well, Your Honor, with all due respect, I
would like to know the proffer. I'm not coaching the witness.
In preparation of the witness for this deposition, the witness
is fully aware of Ms. Jane Doe 6's (Monica Lewinsky's)
affidavit, so I have not told him a single thing he doesn't
know, but I think when he asks questions like this where he's
sitting on an affidavit from the witness, he should at least
have a good faith proffer.
Judge Wright. Now, I agree with you that he needs to have a
good faith basis for asking the question.
Mr. Bennett. May we ask what it is, Your Honor?
Judge Wright. And I'm assuming that he does, and I will be
willing to review this in camera if he does not want to reveal
it to counsel.
Mr. Bennett. Fine.
Mr. Fisher. I would welcome an opportunity to explain to
the Court what our good faith basis is in an in camera hearing.
Judge Wright. All right.
Mr. Fisher. I would prefer that we not take the time to do
that now, but I can tell the Court I am very confident there is
substantial basis.
Judge Wright. All right, I'm going to permit the question.
He's an officer of the Court, and as you know, Mr. Bennett,
this Court has ruled on prior occasions that a good faith basis
can exist notwithstanding the testimony of the witness, of the
deponent, and the other party.
By the way, lest there be any doubt in the minds of any
Member of this body as to whom the President was looking at and
focusing at, we are fully prepared to bring in a witness for
you who was present at the deposition and who will draw a map
for every Member of this body and show the location of the
President and every other person around the table.
Just in case the President's ``I wasn't paying any
attention'' excuse didn't fly, the President, in his grand jury
testimony, decided to try another argument on for size. He
suggested that when Mr. Bennett made his statement about
``there is no sex of any kind,'' the President was focusing on
the meaning of the word ``is.''
He then said that when Mr. Bennett made the assertion that
``there is no sex of any kind,'' Mr. Bennett was speaking only
in the present tense, as if the President understood that to
mean ``there is no sex'' because there was no sex occurring at
the time Mr. Bennett's remark was made.
The President stated, ``It depends on what the meaning of
the word `is' is.''
And that if it means there is none, that was a completely
true statement. Listen and watch again to the same video clip
from the President's grand jury testimony that we saw a few
moments ago. Only this time, pay close attention to the
President's excuse as to why he did not have to comply with the
truth, because in his mind there is some question as to what
the meaning of the word ``is'' is.
[Text of videotape presentation:]
Q. Mr. President, I want to, before I go into a new subject
area, briefly go over something you were talking about with Mr.
Bittman. The statement of your attorney, Mr. Bennett, at the
Paula Jones deposition ``counsel is fully aware''--it's page 54
line 5.--``counsel is fully aware that Ms. Lewinsky has filed,
has an affidavit which they were in possession of saying that
there is no sex of any kind in any manner, shape or form, with
President Clinton?'' That statement is made by your attorney in
front of Judge Susan Webber Wright, correct?
A. That's correct.
Q. That statement is a completely false statement. Whether
or not Mr. Bennett knew of your relationship with Ms. Lewinsky,
the statement that there was ``no sex of any kind in any
manner, shape or form, with President Clinton,'' was an utterly
false statement. Is that correct?
A. It depends on what the meaning of the word ``is'' is. If
``is'' means is, and never has been, that is one thing. If it
means there is none, that was a completely true statement. But,
as I have testified, and I'd like to testify again, this is--it
is somewhat unusual for a client to be asked about his lawyer's
statements, instead of the other way around. I was not paying a
great deal of attention to this exchange. I was focusing on my
own testimony.
In essence, here is what the President says in his own
defense: I wasn't paying any attention to what my lawyer was
saying when he offered the false affidavit on my behalf to the
judge. However, if I was paying attention, I was focusing on
the very narrow definition of what the word ``is'' is and the
tense in which that was presented.
Now, I am a former prosecutor, and that is like the
murderer who says: I have an ironclad alibi. I wasn't at the
crime scene; I was home with my mother eating apple pie; but if
I was there, it is a clear case of self-defense.
The President now asks this body of lawmakers to give
acceptance to these ludicrous definitions of ordinary words and
phrases. He asks you to believe this is what he really thought
when he was asked if he ever had sexual relations with Monica
Lewinsky, and when he was asked about her false affidavit.
By the way, as to the President's ``tense'' argument that
he presented about what the meaning of the word ``is'' is, this
fails to take into account another important fact. The false
affidavit of Monica Lewinsky that Mr. Bennett was waiving that
day before the judge made no such distinction. Her affidavit
never said in the present tense, ``I am not now having a sexual
relationship with the President.'' Her affidavit said, ``I have
never had a sexual relationship with the President.''
The President perjured himself when he said that Mr.
Bennett's statement that there was no sex of any kind was
``absolutely true,'' depending on what the meaning of the word
``is'' is.
The President did not admit to the grand jury that Mr.
Bennett's statement was false because to do so would have been
to admit that the term ``sexual relations'' as used in Ms.
Lewinsky's affidavit meant ``no sex of any kind.'' Admitting
that would be to admit that he perjured himself previously in
his grand jury testimony and in his deposition.
Now, interestingly, Ms. Lewinsky doesn't bother attempting
to match the President's linguistic deconstructions of the
English language. After she was granted immunity, Monica
Lewinsky testified under oath that the part of her affidavit
denying a sexual relationship with the President was a lie.
I read from page 204 of Ms. Lewinsky's testimony:
Q. Let me ask you a straightforward question. Paragraph 8--
Referring to her affidavit--
at the start says, ``I have never had a sexual relationship
with the President.'' Is that true?
A. No.
Thus, the President engaged in an evolving series of lies
during his sworn testimony in order to cover previous lies he
told in sworn testimony, and to conceal his conduct that
obstructed justice in the Paula Jones sexual harassment suit
against him. He did this to deny Paula Jones her constitutional
right to bring a case of sexual harassment against him and to
sidetrack the investigation of the Office of Independent
Counsel into his misconduct.
Finally, the President committed perjury before the grand
jury when he testified falsely about his blatant attempts to
influence the testimony of potential witnesses and his
involvement in a plan to hide evidence that had lawfully been
subpoenaed in the civil rights action brought against him.
This perjurious testimony breaks down into four categories:
First, he made false and misleading statements to the grand
jury concerning his knowledge of Monica Lewinsky's false
affidavit.
Second, he made false and misleading statements to the
grand jury when he related a false account of his interaction
with his secretary, Betty Currie, when he reasonably knew she
might later be called before the grand jury to testify.
Third, he made perjurious and misleading statements to the
grand jury when he denied engaging in a plan to hide evidence
that had been subpoenaed in the Jones civil rights case against
him.
Finally, he made perjurious and misleading statements to
the grand jury concerning statements he made to his aides about
Monica Lewinsky when he reasonably knew these aides might be
called later to testify.
Let's look briefly at the first area.
The President made false and misleading statements before
the grand jury regarding his knowledge of the contents of
Monica Lewinsky's affidavit.
As we now know conclusively, Monica Lewinsky filed an
affidavit in the Jones case in which she denied ever having a
sexual relationship with the President, and that was a lie when
it was filed.
Remember, during his deposition in the Jones case, the
President said that Ms. Lewinsky's denial of ever having a
sexual relationship was ``absolutely true.''
Monica Lewinsky later testified that she is ``100 percent
sure'' that the President suggested she might want to sign an
affidavit to avoid testifying in the case of Jones versus
Clinton. In fact, the President gave the following testimony
before the grand jury:
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.
This testimony is false because it could not be possible
that Monica Lewinsky could have filed a truthful affidavit in
the Jones case, an affidavit acknowledging a sexual
relationship with the President, that would have helped her to
avoid having to appear as a witness in the Paula Jones case.
The attorneys for Paula Jones were seeking evidence of
sexual relationships with the President and ones that the
President might have had with other State or Federal employees.
This information was legally obliged to be produced by the
President to Paula Jones in her sexual harassment lawsuit
against him to help prove her claim.
Judge Susan Webber Wright had already ruled that Paula
Jones was entitled to this information from the President for
purposes of discovery.
If Monica Lewinsky had filed a truthful affidavit that
acknowledged a sexual relationship with the President, then she
certainly could not have avoided having to testify in a
deposition.
The President knew this.
His grand jury testimony on this subject is perjury.
Next, the President provided false testimony concerning his
conversations with his personal secretary, Betty Currie, about
Monica after he testified in the Jones deposition.
Recall Mr. Manager Hutchinson's presentation a short time
ago. The President had just testified on January 17, 1998, in
the Paula Jones deposition. He said he could not recall being
alone with Monica Lewinsky and that he did not have a sexual
relationship with her.
After his testimony, on the very next day and in a separate
conversation with her a few days later, President Clinton made
statements to Ms. Currie that he knew were false.
He made them to coach Ms. Currie and to influence her
potential future testimony.
He coached her by reciting inaccurate answers to possible
questions that she might be asked if she were called to testify
in the Paula Jones case.
By the way, the President discussed his deposition
testimony with Ms. Currie in direct violation of Judge Wright's
order that he not discuss his testimony with anyone. Judge
Wright warned the President at the deposition:
Before he leaves, I want to remind him, as the witness in
this matter, . . . that this case is subject to a Protective
Order regarding all discovery, . . . [A]ll parties present,
including . . . the witness are not to say anything whatsoever
about the questions they were asked, the substance of the
deposition, . . ., any details . . .
After he coached her, the President wanted Betty Currie to
be a witness.
During his deposition testimony, the President did
everything he could to suggest to the Jones lawyers they needed
to depose Betty Currie. He did this by referring to her over
and over again as the one with the information they needed for
information about him and Monica Lewinsky.
He stated to the Jones lawyer in his deposition, for
example, that:
. . . the last time he had seen Ms. Lewinsky was when she had
come to the White House to see Ms. Currie; that Ms. Currie was
present when the President had made a joking reference about
the Jones case to Ms. Lewinsky; that Ms. Currie was his source
of information about Vernon Jordan's assistance to Ms.
Lewinsky; and that Ms. Currie had helped set up the meetings
between Ms. Lewinsky and Mr. Jordan regarding her move to New
York.
Because the President referred so often to Ms. Currie, it
is obvious he wanted her to become a witness in the Jones
matter, particularly if specific allegations of the President's
relationship with Ms. Lewinsky came to light.
According to Ms. Currie, President Clinton even told her at
some point that she might be asked about Monica Lewinsky.
Two and a half hours after he returned from the Paula Jones
deposition, President Clinton called Ms. Currie at home and
asked her to come to the White House the next day, a Sunday.
Ms. Currie testified that it was rare for the President to
ask her to come in on a Sunday.
At about 5:00 p.m. on Sunday, January 18, Ms. Currie went
to meet with President Clinton at the White House.
Listen to what Betty Currie told the grand jury:
He said that he had had his deposition yesterday, and they
had asked several questions about Monica Lewinsky. And I was a
little shocked by that or--(shrugging). And he said--I don't
know if he said--I think he may have said, ``There are several
things you may want to know,'' or ``There are things--'' He
asked me some questions.
According to Ms. Currie, the President then said to her in
rapid succession:
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 can't do that.
Ms. Currie indicated that these remarks were ``more like
statements than questions.''
Ms. Currie concluded that the President wanted her to agree
with him.
Ms. Currie also said that she felt the President made these
remarks to see her reaction.
Ms. Currie said that she indicated her agreement with each
of the President's statements, although she knew that the
President and Ms. Lewinsky had in fact been alone in the Oval
Office and in the President's study.
Ms. Currie also knew that she could not and did not hear or
see the President and Ms. Lewinsky while they were alone.
Ms. Currie testified that two or three days after her
conversation with the President at the White House, he again
called her into the Oval Office to discuss this.
She described their conversation as ``sort of a
recapitulation of what we had talked about on Sunday--you know,
I was never alone with her--that sort of thing.''
Q: [To Ms. Currie] Did he pretty much list the same?
A: To my recollection, sir, yes.
In his grand jury testimony, the President was asked why he
might have said to Ms. Currie in their meeting on that Sunday:
We were never alone together, right? You could see and hear
everything.
Here is how the President testified:
[W]hat I was trying to determine was whether my
recollection was right and that she 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 was
trying to--I knew . . . to a reasonable certainty that I was
going to be asked more questions about this. I didn't really
expect you to be in the Jones case at the time. 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.
The President told the grand jury that he was putting those
questions to Betty Currie on that Sunday to refresh his
recollection and trying to pin down what the facts were.
Later, the President stated that he was referring to a
larger area than simply the room where he and Ms. Lewinsky were
located. He also testified that his statements to Ms. Currie
were intended to cover a limited range of dates.
Listen to the President's answer.
A: [W]hen I said, we were never alone, right, I think I
also asked her a number of other questions, because there were
several times, as I'm sure she would acknowledge, when I either
asked her to be around. I remember once in particular when I
was talking with Ms. Lewinsky when I asked Betty to be in the,
actually, in the next room in the dining room, and, as I
testified earlier, once in her own office. But I meant that she
was always in the Oval Office complex, in that complex, while
Monica was there. 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.
And, in fact, I think she would recall that I told her to just
relax, go in the grand jury and tell the truth when she had
been called as a witness.
Now the President was treating the grand jury to his
construction of what the word ``alone'' means to him.
When asked he answered:
It depends on how you define alone, and there were a lot of
times when we were alone, but I never really thought we were.
The President also was asked about his specific statement
to Betty Currie that ``you could see and hear everything.'' He
testified that he was uncertain what he intended by that
comment:
Question to the President:
Q: When you said to Mrs. Currie, you could see and hear
everything, that wasn't true either, was it, as far as you
knew. . . .
A: My memory of that was that, that she had the ability to
hear what was going on if she came in the Oval Office from her
office. And a lot of times, you know, when I was in the Oval
Office, she just had the door open to her office. Then there
was--the door was never completely closed to the hall. So I
think there was--I'm not entirely sure what I meant by that,
but I could have meant that she generally would be able to hear
conversations, even if she couldn't see them. And I think
that's what I meant.
The President also was asked about his comment to Ms.
Currie that Ms. Lewinsky had ``come on'' to him, but that he
had ``never touched her.''
Question to the President:
Q: [I]f [Ms. Currie] testified that you told her, Monica
came on to me and I never touched her, you did, in fact, of
course, touch Ms. Lewinsky, isn't that right, in a physically
intimate way?
A: Now, I've testified about that. And that's one of those
questions that I believe is answered by the statement that I
made.
Q: What was your purpose in making these statements to Mrs.
Currie, if it weren't for the purpose to try to suggest to her
what she should say if ever asked?
A: Now, Mr. Bittman, I told you, the only thing I remember
is when all this stuff blew up, I was trying to figure out what
the facts were. I was trying to remember. I was trying to
remember every time I had seen Ms. Lewinsky. . . . I knew this
was all going to come out. . . . I did not know [at the time]
that the Office of Independent Counsel was involved. And I was
trying to get the facts and try to think of the best defense we
could construct in the face of what I thought was going to be a
media onslaught.
Finally, the President was asked why he would have called
Ms. Currie into his office a few days after the Sunday meeting
and repeated the statements about Ms. Lewinsky to her.
The President testified that although he would not dispute
Ms. Currie's testimony to the contrary, he did not remember
having a second conversation with her along these lines.
Thus, the President referred to Ms. Currie many times in
his deposition when describing his relationship with Ms.
Lewinsky.
He himself admitted that a large number of questions about
Ms. Lewinsky were likely to be asked in the very near future.
The President reasonably could foresee that Ms. Currie
either might be deposed or questioned or might need to prepare
an affidavit.
When he testified he was only making statements to Ms.
Currie to ``ascertain what the facts were, trying to ascertain
what Betty's perception was,'' this statement was false, and it
was perjurious.
We know it was perjury because the President called Ms.
Currie into the White House the day after his deposition to
tell her--not ask her, to tell her--that:
he was never alone with Ms. Lewinsky;
to tell her that Ms. Currie could always hear or see them;
and to tell her that he never touched Ms. Lewinsky.
These were false statements, and he knew that the
statements were false at the time he made them to Betty Currie.
The President's suggestion that he was simply trying to
refresh his memory when talking to Betty Currie is nonsense.
What if Ms. Currie had confirmed these statements,
statements the President knew were false? It could not in any
way remind the President of what really happened in the Oval
Office with Monica Lewinsky because the President already knew
he was alone with Monica Lewinsky. The President already knew
that obviously Ms. Currie could not always see him back in the
Oval Office area with Monica Lewinsky. And the President
already knew that he had an intimate sexual relationship with
Monica Lewinsky.
There is no logical way to justify his claim that he made
these statements to Ms. Currie to refresh his recollection.
The only reasonable inference from the President's conduct
is that he tried to enlist a potential witness to back up his
perjury from the day before at the deposition.
The circumstances surrounding the President's statements
clearly show, clearly show that he improperly sought to
influence Ms. Currie's potential future testimony.
His actions were an obstruction of justice and a blatant
attempt to illegally influence the truthful testimony of a
potential witness.
And his later denials about it under oath were perjurious.
Next, the President gave perjurious, false, and misleading
testimony before the grand jury when he denied he was engaged
in a plot to hide evidence that had been subpoenaed in the
Paula Jones case.
On December 19, 1997, Monica Lewinsky was served with a
subpoena in the Paula Jones case.
The subpoena required her to testify at a deposition in
January, and the subpoena required her to produce each and
every gift President Clinton had given her.
Nine days after she received this subpoena, Ms. Lewinsky
met with the President for about 45 minutes in the Oval Office.
By this time, President Clinton knew that she had been
subpoenaed in the case.
At this meeting they discussed the fact that the gifts that
he had given Monica Lewinsky had been subpoenaed, including a
hat pin--the first gift the President had ever given Ms.
Lewinsky.
Monica Lewinsky testified that at some point in this
meeting she said to the President,
Well, you know, 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.
President Clinton provided the following explanation to the
grand jury and to the House Judiciary Committee regarding this
conversation:
Ms. Lewinsky said something to me like, ``what if they ask
me about the gifts you've given me,'' but I do not know whether
that conversation occurred on December 28, 1997, or earlier.
Whenever this conversation occurred, I testified, I told
her ``that if they [the Jones Lawyers] asked her for gifts,
she'd have to give them whatever she had. . . .''
I simply was not concerned about the fact that I had given
her gifts. Indeed, I gave her additional gifts on December 28,
1997.
The President's statement that he told Ms. Lewinsky that if
the attorneys for Paula Jones asked for the gifts, then she had
to provide them, is perjurious.
It strains all logic to believe the President would
encourage Monica Lewinsky to turn over the gifts. To do so
would have raised questions about their relationship and would
go against all of their other efforts to conceal the
relationship, including filing a false affidavit about their
relationship. The fact that the President gave Monica Lewinsky
additional gifts on December 28, 1998, doesn't exonerate the
President. It demonstrates that the President never believed
that Monica Lewinsky in light of all of their relationship, all
of the cover stories, all of the plans that they had put
forward, her willingness to subject herself to a perjury
prosecution by filing a false affidavit, all of that was
because he knew that Monica Lewinsky would never turn those
gifts over pursuant to the subpoena. And as Ms. Lewinsky
testified, she never questioned, as she said, ``that we were
ever going to do anything but keep this quiet.''
This meant that they would take, in her words, ``whatever
steps needed to be taken'' to keep it quiet.
By giving more gifts to Monica Lewinsky after she received
a subpoena to appear in the Jones case, the President believed
that Monica Lewinsky would never testify truthfully about their
relationship.
Additionally, Ms. Lewinsky said she could not answer why
the President would give her more gifts on the 28th when he
knew she had to produce gifts in response to the subpoena. She
did testify, however, that----
To me it was never a question in my mind and I--from
everything he said to me, I never questioned him, that we were
never going to do anything but keep this private, so that meant
deny it and that meant do--take whatever appropriate steps
needed to be taken, you know, for that to happen. . . . So by
turning over these gifts, it would at least prompt [the Jones
attorneys] to question me about what kind of friendship I had
with the President. . . .
After this meeting on the morning of December 28, Betty
Currie called Monica Lewinsky and made arrangements to pick up
gifts the President had given to Ms. Lewinsky.
Monica Lewinsky testified under oath before the grand jury
that a few hours after meeting with the President on December
28, 1997, where they discussed what to do about the gifts he
gave to her, Betty Currie called Monica Lewinsky.
Monica Lewinsky explained it to the grand jury as follows:
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.
Later in the day on December 28, Ms. Currie drove to Monica
Lewinsky's home.
Ms. Lewinsky gave Ms. Currie a sealed box that contained
several gifts Ms. Lewinsky had received from the President,
including the hatpin that was specifically named in the Jones
subpoena.
As further corroboration, Monica Lewinsky had told the FBI
earlier that when Betty Currie called her about these gifts, it
sounded like Betty Currie was calling on her cell phone. Ms.
Lewinsky gave her best guess on the time of day the call came
on December 28.
Although Ms. Lewinsky's guess on the hour the call came was
a bit off, phone records were later produced revealing that
Betty Currie in fact called Monica Lewinsky on her cell phone,
just as Ms. Lewinsky had described it. The only logical
conclusion is that Betty Currie called Monica Lewinsky about
retrieving the President's gifts. There would have been no
reason for Betty Currie, out of the blue, to return gifts
unless instructed to do so by the President. Betty Currie
didn't know about the gift issue ahead of time. Only the
President and Monica Lewinsky had discussed it. There is no
other way Ms. Currie could have known to call Monica Lewinsky
about the gifts unless the President told her to do it.
President Clinton perjured himself when he testified before
the grand jury on this issue and reiterated to the House
Judiciary Committee that he did not recall any conversation
with Ms. Currie around December 28. He also perjured himself
when he testified before the grand jury that he did not tell
Betty Currie to take possession of the gifts that he had given
Ms. Lewinsky.
Question to the President:
After you gave her the gifts on December 28th, did you
speak with your secretary, Ms. Currie, and ask her to pick up a
box of gifts that were some compilation of gifts that Ms.
Lewinsky would have----
A. No, sir, I didn't do that.
Q. --to give to Ms. Currie?
A. I did not do that.
The President had a motive to conceal the gifts because
both he and Ms. Lewinsky were concerned that the gifts might
raise questions about their relationship. By confirming that
the gifts would not be produced, the President ensured that
these questions would never arise. The concealment of these
gifts from Paula Jones' attorneys allowed the President to
provide perjurious statements about the gifts at his deposition
in the Jones case.
Finally, the President gave perjurious testimony to the
grand jury concerning statements he gave to his top aides
regarding his relationship with Monica Lewinsky. Here is a
portion of his grand jury transcript, when the President
testified about his conversation with key aides, once the
Monica Lewinsky story became public.
Question to the President:
Q. Did you deny to them or not, Mr. President?
A. . . . I did not want to mislead my friends, but I want
to define language where I can say that. I also, frankly, do
not want to turn any of them into witnesses because I--and sure
enough, they all became witnesses.
Q. Well, you knew they might be witnesses, didn't you?
A. And so I said to them things that were true about this
relationship. That I used--in the language I used, I said,
there is nothing go[ing] on between us. That was true. I said,
I have not had sex with her as I defined it. That was true. And
did I hope that I would never have to be here on this day
giving this testimony? Of course. But I also didn't want to do
anything to complicate this matter further. So, I said things
that were true. They may have been misleading, and if they
were, I have to take responsibility for it, and I'm sorry.
The President's testimony that day that he said things that
were true to his aides is clearly perjurious. Just as the
President predicted, several of the President's top aides were
later called to testify before the grand jury as to what the
President told them. And when they testified before the grand
jury they passed along the President's false account, just as
the President intended them to do.
I will not belabor the point any further with the Members
of this body because I think Mr. Manager Hutchinson ably
presented that testimony.
But we know from the evidence that Erskine Bowles, John
Podesta, Sidney Blumenthal, all came before the grand jury.
They all provided testimony to the grand jury establishing that
the President's comments to them were the truth. The President
had them go in. The President gave them that information so
false information would be shared with the grand jury so that
the grand jury would never be armed with the truth. And when
witnesses are called to come before this body, you will have an
opportunity to make that determination.
Mr. Chief Justice and Members of the United States Senate,
posterity looks to this body to defend in a courageous way the
public trust and take care that the basis of our Government is
not undermined. On January 17, 1998, President Clinton, while a
defendant in a civil rights sexual harassment lawsuit, gave
sworn testimony in a deposition presided over by a Federal
judge. In this deposition he raised his hand and he swore to
tell the truth, the whole truth, and nothing but the truth.
On August 17, President Clinton testified before a Federal
grand jury in a criminal investigation. At this appearance he
raised his hand and he swore to tell the truth, the whole
truth, and nothing but the truth. The evidence conclusively
shows that the President rejected his obligations under oath on
both occasions. He engaged in a serial pattern of perjury and
obstruction of justice. These corrupt acts were done so he
could deny a U.S. citizen, Ms. Paula Jones, her constitutional
right to bring her claim against him in a court of law. In so
doing, he intentionally violated his oath of office, his
constitutional duty to take care that the laws be faithfully
executed, and his solemn obligation to respect Ms. Jones'
rights by providing truthful testimony under oath.
The evidence reviewed by the House of Representatives and
relied upon by our body in bringing articles of impeachment
against the President was not political. It was overwhelming.
He has denied all allegations set forth in these articles. Who
is telling the truth? There is only one way to find out.
On behalf of the House of Representatives, we urge this
body to bring forth the witnesses and place them under oath. If
the witnesses can make the case against the President, if the
witnesses that make the case against the President--who,
incidentally, are his employees, his top aides, his former
interns, and his close friends--if all of these people in the
President's universe are lying, then the President has been
done a grave disservice. He deserves not just an acquittal; he
deserves the most profound of apologies.
But if they are not lying, if the evidence is true, if the
Chief Executive Officer of our Nation used his power and his
influence to corruptly destroy a lone woman's right to bring
forth her case in a court of law, then there must be
constitutional accountability, and by that I mean the kind of
accountability the framers of the Constitution intended for
such conduct and not the type of accountability that satisfies
the temporary mood of the moment.
Our Founders bequeathed to us a Nation of laws, not of
polls, not of focus groups, and not of talk show habitues.
America is strong enough to absorb the truth about their
leaders when those leaders act in a manner destructive to their
oath of office. God help our country's future if we ever decide
otherwise.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the court stand in adjournment until 1 p.m. tomorrow, and that
all Members remain standing at their desks as the Chief Justice
departs the Chamber. I further ask that after the court
adjourns in a moment, the Senate will, while in legislative
session, stand in recess subject to the call of the Chair.
The CHIEF JUSTICE. Without objection, it is so ordered.
Thereupon, at 6:59 p.m., the Senate, sitting as a Court of
Impeachment, adjourned.
------
Friday, January 15, 1999
[From the Congressional Record]
The Senate met at 1:02 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Holy God, with awe and wonder we accept our
responsibilities and our accountability to You. You are
Sovereign of this land. When we commit our complexities to You,
really seek Your guidance, You direct us. Make us attentive
listeners, dedicated to the search for absolute truth. In the
cacophony of voices, help us to hear Your voice.
Dear Father, Your faithfulness never fails. You are
consistent, reliable, and true. You expect nothing less from us
for Your glory and for the good of America. To that end, fill
this Chamber with Your presence and the minds of the Senators
with Your gift of discernment. You are our Lord and Saviour.
Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against William Jefferson Clinton,
President of the United States.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Mr. Chief Justice, there have been a number of
inquiries from Senators and others about some clarification
with regard to the approximate times or the times we would be
meeting on Saturday and Tuesday, and also how the afternoon
would proceed, so I will make some unanimous consent requests
to clarify that and give you a brief rundown on what I think
the schedule will be this afternoon.
orders for saturday, january 16, 1999 and tuesday, january 19, 1999
Mr. Chief Justice, as in legislative session, I ask
unanimous consent that when the Senate completes its business
today it stand in adjournment until 10 a.m., on Saturday,
January 16. I further ask that when the Senate reconvenes on
Saturday, immediately following the prayer, the Senate resume
consideration of the articles of impeachment.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. I further ask unanimous consent that when the
Senate completes its business on Saturday, it then adjourn over
until Tuesday, January 19, at 9:30 a.m. I ask unanimous consent
that on Tuesday, immediately following the prayer, the Journal
of proceedings be approved to date, the morning hour be deemed
to have expired, and the time for the two leaders be reserved
for their use. I further ask consent that there then be a
period for morning business until the hour of 11:30 a.m., with
60 minutes under the control of the majority leader or his
designee and 60 minutes under the control of the minority
leader or his designee.
I ask unanimous consent that on Tuesday the Senate recess
then from the hours of 11:30 a.m. until 1 p.m. for the weekly
policy conferences. And I further ask consent that at 1 p.m.,
on Tuesday, the Senate resume consideration of the articles of
impeachment.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
on Tuesday, following the conclusion of the presentation during
the Court of Impeachment, the Senate recess until the hour of
8:35 p.m., on Tuesday evening. And I ask consent that upon
reconvening Tuesday evening the Senate proceed to the Hall of
the House of Representatives in order to hear an address by the
President regarding the State of the Union.
The CHIEF JUSTICE. Without objection, it is so ordered.
order of procedure
Mr. LOTT. For the information of all my colleagues, then, I
understand today's presentation is expected to continue until
approximately 6 p.m., and there will be periodic breaks during
the day to allow all Members to stand and stretch. I want to
remind Senators to promptly return to their desks at the
expiration of those 15-minute breaks in order that we can
continue and complete at the earliest possible hour. I thank
all Members for their cooperation.
This afternoon we will hear from Congressman McCollum, take
a 15-minute break, then hear from Congressmen Gekas, Chabot,
and Cannon, and then take a break, and then Congressman Barr
would complete the afternoon's presentations.
Mr. Chief Justice, I yield the floor.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, the
managers for the House of Representatives have 18 hours 56
minutes remaining to make the presentation of their case. The
Senate will now hear you.
The Presiding Officer recognizes Mr. Manager McCollum to
resume the presentation of the case for the House of
Representatives.
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
Mr. Chief Justice, and my colleagues in the Senate, I drove
in this morning to this Capitol. I drove up the George
Washington Parkway, and I looked at the magnificent display of
ice that was all over the trees, all over the grass, all over
the foliage--a beautiful panorama.
And just before I got to the 14th Street Bridge, I saw this
incredible number of geese--I guess in the hundreds--that were
lined up together between the highway and the Potomac River. It
looked like they were an invading army. I thought of the awe of
this, the awe of the beauty of it, the awe of Mother Nature,
the awe of God. And I thought, also, of the awe of the
responsibility we have to our children and our grandchildren
about what we are commencing today. This is an awesome
undertaking for all of us.
I am here today to summarize for you what you heard
yesterday. I do not want to bore you. I do not intend to do
that. I am going to be as brief as I can. I am also here to
help you digest the voluminous quantities of material that you
have before you. There is a huge record out there. And I am
also here to prepare you for the law discussion that is going
to come after me about the law of the crimes of perjury and
obstruction of justice and witness tampering.
First of all, I want you to know I bear no personal
animosity toward our President. But I happen to believe that if
the President--if any President--commits the crimes of perjury,
obstruction of justice, and witness tampering, he should not be
allowed to remain in office, for if he is allowed to do so, it
would undermine our courts and our system of justice.
But that is for you to determine in the end, really, not
me. That is my opinion. But you will have to weigh the
evidence, you are going to have to hear the arguments, and
ultimately make that decision. In fact, 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 on 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
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.
I would like to call your attention to a couple of things.
First of all, I don't want to be a schoolteacher; I just want
to relate my own experience to you so you can understand it. I
have been involved with this a lot longer than most of you have
probably been dealing with the details. I constantly have to
refer back to things. Every time I read something, there is so
much detail here, I learn something new.
While I go over the evidence with you, we will summarize
the evidence one more time. As you are deliberating, as you are
thinking about it, I want to call a couple of places to your
attention that are the easiest places to refer back to, to find
the facts and evidence. First of all, there is the official
report that is in the record of the House's consideration of
this, the Judiciary Committee report. In that report, right in
the first couple of pages, there is a table of contents. While
a couple of the articles did not come over to you that are
listed in here, there are detailed discussions you can get from
this table of contents as to every single count and every
single part of these articles so you can figure out what we are
talking about today.
Secondly, I would like to bring to your attention that
there is a Starr Report, and I know that has been maligned by
some people. This thing is so dogeared--I have underlined it,
torn it apart, done all kinds of things with it. It is a good
reference source. You can find from the footnotes where else to
check it out. There are two parts. These are the appendices. In
the first part, you can find the transcript of all the key
depositions, all the key testimony, all of the evidence that we
are talking about, and read it for yourselves.
I don't want to leave here today having summarized this
evidence, as long as I may take--and I don't want to take a
long time, but I will take a little while--and have you go away
and think, gosh, what all did McCollum or Hutchinson or Rogan
or Bryant say yesterday? You can find and refresh yourself
through that and through whatever information you have--trial
briefs and all that you have.
Let's look at what the record shows. President Clinton was
sued by Paula Jones in a sexual harassment civil rights
lawsuit. To bolster her case, she was trying to show that the
President engaged in a pattern of illicit relations with women
in his employment, where he rewarded those who became involved
with him and disadvantaged those who rejected him, as Paula
Jones did.
Whatever the merits of that approach, on May 27, 1997, the
U.S. Supreme Court ruled in a unanimous decision that ``like
every other citizen''--and that is a quote--``like every other
citizen, Paula Jones has a right to an orderly disposition of
her claims.'' Then on December 11 of 1997, Judge Susan Webber
Wright issued an order that said Paula Jones was entitled to
information regarding any State or Federal employee with whom
the President had sexual relations, proposed sexual relations,
or sought to have sexual relations.
The record shows that President Clinton was determined to
hide his relationship with Monica Lewinsky from the Jones
court. His lawyers will argue to you next week, I am sure, that
he did everything to keep the relationship hidden and he did it
in a legal way. They will say that he may have split a few
hairs and evaded answers and given misleading answers but that
it was all within the framework of responses and actions that
any good lawyer would advise his client to do.
They will also say if he crossed the line technically
somewhere, he didn't do it knowingly or intentionally. Oh, how
I wish that were true. We wouldn't be here today. But, alas,
that is not so.
If you believe the sworn testimony of Monica Lewinsky, if
you believe her testimony that is in the record--and she is
very credible--the President knowingly, intentionally, and
willfully set out on a course of conduct in December 1997 to
lie to the Jones court, to hide his relationship, and to
encourage others to lie and hide evidence and to conceal the
relationship with Monica Lewinsky from the court. He engaged in
a pattern of obstruction of justice, perjury, and witness
tampering designed to deny the court what Susan Webber Wright,
the judge in that court, had determined Paula Jones had the
right to discover in order to prove her claim. If you believe
the testimony of Monica Lewinsky, you cannot believe the
President or accept the argument of his lawyers. You simply
can't.
The record is so clear on this that if you have any
significant doubt about Monica Lewinsky's credibility or
testimony, you should bring her in here and let us examine her
face to face so you can judge her credibility for yourself.
As you will hear explained later this afternoon, the same
acts can constitute both the crimes of obstruction of justice
and perjury, and the same acts can constitute the crimes of
obstruction of justice and witness tampering. They are all cut
from the same cloth. They are all crimes that obstruct the
administration of justice and keep our courts from being able
to get the evidence that they need to decide cases. Such
obstruction is so detrimental to our system of justice that the
Federal Sentencing Guidelines provide for a greater punishment
for perjury and obstruction of justice than they do for
bribery.
I want to show that to you. I know everybody can't see the
chart. I think you have a handout of them. I will not show many
charts today, but this is one about the sentencing guidelines.
The guidelines rate these, in fact, in sequence. The most
serious sentencing is a higher number; the lower number is the
lower sentencing: Plain old vanilla bribery rights at a 10;
other things are 8, 7, 4. Murder is way up there, much higher
in the numbers. You will see that witness tampering is a 12,
not a 10. Obstruction of justice is a 12, not a 10. Perjury is
a 12, not a 10. All of them are the same. Interestingly enough,
although I didn't put it on this chart, bribing a witness is
different from plain vanilla bribery. If you try to bribe
somebody in a business deal, that is one kind; if you go out
and bribe a witness, that is another. Bribing a witness is also
a 12.
Now, I want to point that out right up front because the
most important point that makes is that when you read the
phrase in the Constitution that what is impeachable is treason,
bribery, and other high crimes and misdemeanors, bribery is not
considered by our court system. Pure bribery, plain old
bribery, is not considered as serious in sentencing as perjury,
witness tampering, obstruction of justice, and of course
bribing a witness. They are all of the same cloth. Why? Because
that interferes with the administration of justice. Because we
can't have justice if people block the courts from getting at
the truth. And if you go about doing it intentionally, you have
committed these crimes.
It should be pointed out that lies under oath in a court
proceeding, whether or not they rise to the level of crimes of
perjury, can be obstruction of justice. So when the President
lied in the Jones deposition, this was part of the obstruction
of justice charged under article II that is before you today,
even though there is no separate count. And he lied a lot in
that deposition. We will talk about that a little later. The
fact that the House did not send you the article of impeachment
for perjury in the Jones deposition does not keep you from
considering the lies in that deposition as an obstruction of
justice crime under article II that is before you. And you know
that it is also incorporated in article I, because it is one of
the four items specifically listed as the perjury that he lied
about lying in the deposition.
Now, having said that, think about all of this as one big
obstruction, because perjury can be obstruction. Just plain
lying can be obstruction. Witness tampering, by the way, is a
separate crime because it is titled that way, but it is one of
two separate obstruction of justice sections in the United
States Criminal Code. It is just another version of obstruction
of justice. So don't be confused. Witness tampering is
obstruction of justice--literally, figuratively, and in every
other way. But people think about it separately because it has
a separate element, a lesser element of proof actually than
obstruction of justice. But it is all part of the same fabric,
again.
To put the essence of all of this in a nutshell for you,
think back on the evidence presented yesterday. I would suggest
that President Clinton thought his scheme out well. He resented
the Jones lawsuit. He was alarmed when Monica Lewinsky's name
appeared on the witness list, and he was more alarmed when
Judge Wright issued her orders signaling that the court would
hear the evidence of other relationships. To keep his
relationship with Monica Lewinsky from the court, once Judge
Wright issued her ruling, he knew he would have to lie to the
court. To succeed at this, he decided that he had to get Monica
Lewinsky to file a false affidavit, to try to avoid having her
testify. And he needed to get her a job to make her happy, to
make sure she executed that false affidavit, and then stick
with her lies when she was questioned about it.
Then the gifts were subpoenaed and he had to have her hide
the gifts--the only tangible evidence of his relationship with
her that would trigger questions. She came up with the idea of
giving them to Betty Currie, and the President seized on it.
Who would think Betty Currie should be called to produce the
gifts? Nobody would. Then he would be free to lie in his
deposition, and that is, of course, what he did. But after he
did this, he realized that he had to make sure that Betty would
lie and cover for him.
He got his aides convinced to repeat the lies to the grand
jury and to the public, and all of this worked--until the dress
showed up. Then he lied to the grand jury to try to cover up
and explain away his prior crimes.
That is the case in a nutshell. That is why we are here
today. That is what this evidence in the record shows, I
believe, in an exceptionally compelling way.
Now, let's review what happened and, as we do, I ask you to
think back to what Mr. Bryant said to you yesterday. Always ask
yourself, what are the results of the act and who benefited. I
think you will find each time that it is the President who
benefited. Now we are going to go over the facts.
On December 5, 1997, a year ago, about a week before Judge
Wright issued her order making it clear that the President's
relationship with Monica Lewinsky was relevant to the Jones
case, Ms. Lewinsky's name appeared on the Jones witness list.
The President learned this fact the next day, December 6. The
President telephoned Monica Lewinsky at about 2 a.m. on
December 17 and informed her about her name being on the
witness list. That was about 10 days after he learned about it
and about 5 days after Judge Wright's order. It was the order
that made it clear that his relationship with Monica was
discoverable by the Jones attorneys in that case.
Long before this, though, long before the President was
called to give a deposition or Monica Lewinsky was named on the
witness list in the Jones case, the evidence shows she and the
President had concocted cover stories. They had an
understanding that she would lie about the relationship, and so
would he, if anybody asked about it.
During a telephone conversation on the 17th of December,
the President told Monica she might be called as a witness, and
he at that time suggested that she might file an affidavit to
avoid being called as a witness to testify in person in that
case. In the same conversation, they reviewed these cover
stories that they had concocted to conceal their relationship.
He brought them up. They went over them again.
Why do you think they did that? In her grand jury
testimony, Monica said the President didn't tell her to lie,
but because of their previous understanding she assumed that
they both expected that she would lie in that affidavit. In
this context, the evidence is compelling that the President
committed both the crimes of obstruction of justice and witness
tampering right then and there on December 17.
Now, Monica Lewinsky's testimony is so clear about this
that the President's lawyers probably won't spend a lot of time
with you on this; they didn't in the Judiciary Committee. I
could be wrong, and they probably will just to show me I am
wrong.
I want us to look at this and specifically look at her
testimony together because it is so compelling. On pages 123
and 124 of her testimony--you can find it in Part 1 of the
Starr Report. I know you can't see all of this that well back
there, but you should have the charts. I point out in red on
this chart the most important part of it. This is where she
described the December 17 telephone conversation. I am going to
read you part of it.
She said here in red:
At some point in the conversation, and I don't know if it was
before or after the subject of the affidavit came up, he sort of said,
``You know, you can always say you were coming to see Betty or that you
were bringing me letters,'' which I understood was really a reminder of
things that we had discussed before.
Question: So when you say things you had discussed, sort of ruses
that you developed?
Answer: Right. I mean, this was--this was something that--that was
instantly familiar to me.
Question: Right.
Answer: And I knew exactly what he meant.
Question: Had you talked with him earlier about these false
explanations about what you were doing visiting him on several
occasions?
Answer: Several occasions throughout the entire relationship. Yes.
It was the pattern of the relationship, to sort of conceal it.
Now, let's look at another chart. Monica Lewinsky's August
6 grand jury testimony, on pages 233 and 234. Both are from the
August 6 grand jury testimony, where in the context of the
affidavit she makes the now famous statement, ``No one asked or
encouraged me to lie.'' She did say that, but let's look at how
she said that:
For me, the best way to explain how I feel what happened was, you
know, no one asked or encouraged me to lie, but no one discouraged me
either.
``. . . but no one discouraged me either.'' I don't know
how many times anybody said that to you when they made their
arguments, but that is what she said and the context.
Later on, she says in her testimony on the same pages:
. . . it 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 be humiliated in front of
the entire world about what we've done,'' which I would have fought him
on probably. That was different. And by him not calling me and saying
that, you know, I knew what that meant. . . .
Question: Did you understand all along that he would deny the
relationship, also?
Answer: Mm-hmm. Yes.
Question: And when you say you understood what it meant when he
didn't say, ``Oh, you know, you must tell the truth,'' what did you
understand that to mean?
Answer: That--that--as we had on every other occasion and every
other instance of this relationship, we would deny it.
After reading this, if you believe Monica Lewinsky, can
there be any doubt that the President was suggesting that she
file an affidavit that contains lies and falsehoods that might
keep her from ever having to testify in the Jones case and give
the President the kind of protection he needed when he
testified?
And, of course, in that same December 17 conversation, the
President encouraged Monica to use cover stories and tell the
same lies as he expected her to do in the affidavit if and when
she was called to testify live and in person. Both of those
would be obstruction of justice and witness tampering. Taken
together--encouraging her to file this false affidavit that she
clearly describes here, and the encouraging of her to lie if
she is ever called as a witness--both of these are counts 1 and
2 of the obstruction of justice charge.
If I don't leave you with any other impression walking away
from here today, I want you to think about this. This is the
clearest, boldest, most significant obstruction of justice
charge. I don't see how anybody can walk away from it and
explain it away. It is a pattern. It should not be looked at in
isolation. Think about it. It is the kickoff to what really
happened. It is why we got involved in this in the first place.
The President had a scheme and he went through this process.
And it all ties together with the rest of it.
Two days later, Monica Lewinsky was subpoenaed and
contacted Vernon Jordan who put her in touch with Attorney
Frank Carter. That is the attorney he picked out. As we all
know, this very false affidavit that Frank Carter prepared--
and, of course, knowing it was false when he prepared it, but
Monica knew it and the President knew it--was filed just before
the President's deposition in the Jones case January 17. The
record shows that the President was kept abreast of the
participation by Vernon Jordan and all of its contents, and
Jordan advised the President when Monica signed the affidavit
on January 7. He advised the President of that fact. Two days
before Monica says in a conversation she asked the President if
he wanted to see the draft affidavit, he replied--you recall
from yesterday--he replied that he didn't need to see it
because he had already seen ``15 others.''
I doubt seriously he was talking about 15 other affidavits
of somebody else and didn't like looking at affidavits anymore.
I suspect and I would suggest to you that he was talking about
15 other drafts of this proposed affidavit since it had been
around the horn a lot of rounds.
The circumstantial evidence makes it clear the President
knew the context of the Lewinsky affidavit and he knew it was
false.
During the President's deposition in the Jones case on
January 17, his attorney, Robert Bennett, at one point tried to
stop the Jones lawyers from asking the President about his
relationship with Monica Lewinsky by pointing out the affidavit
she had signed.
I think we all remember that because there was a lot of
that on TV up here yesterday. Mr. Bennett asserted at the time
that the affidavit indicated ``there is no sex of any kind,
manner, shape or form.'' That is what he said. After a warning
from Judge Wright, Mr. Bennett stated, ``I'm not coaching the
witness. In preparation of the witness for this deposition, the
witness is fully aware of Ms. Lewinsky's affidavit, so I have
not told him a single thing he doesn't know.'' The President
did not say anything to correct Mr. Bennett, even though he
knew the affidavit was false. The judge allowed the questioning
to proceed and later Mr. Bennett read to the President a
portion of paragraph 8 of Monica Lewinsky's affidavit in which
she denied having a ``sexual relationship'' with the President
and asked him if Ms. Lewinsky's statement was true and
accurate, to which the President responded, ``That is
absolutely true.''
I am not going back over and putting that on the screen
again. But I do want to put up here before you what you have in
front of you, paragraph 8 of Monica Lewinsky's affidavit.
Paragraph 8 of her affidavit was absolutely false, and the
President knew it.
I want to go over that a little bit. What it says up here
at the beginning of it is, ``I have never had a sexual
relationship with the President. He did not propose that we
have a sexual relationship,'' and so on. And we have a lot
about that. But look at what it says down at the end of this.
What is down at the end of this--you have it in front of you.
It says down here, ``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 United States Department of Defense, where I was working
at the time. There were other people present on those
occasions.''
I just want to point out to you that paragraph 8, which was
the subject of a lot of discussions, which the President
certainly was fully aware of--which you watched where he was
intensely responding, with regard to Mr. Bennett yesterday in
that deposition--didn't just contain a lie about a sexual
relationship where you quibble over a word, it is a full-
fledged lie and a cover story about this. None of that is true.
Monica Lewinsky saw him a lot of other times, and the President
certainly knew that. They weren't all official events or
anything else. This is a complete falsehood, paragraph 8, and
the President knew it.
At that point in time when he allowed his attorney on the
day of the deposition to make a false and misleading statement
to the judge--and the attorney didn't know that--but it was a
false and misleading statement to the judge characterizing this
affidavit, he knew better. And the President at that point in
time committed the crime of obstruction of justice. And that is
count 5 of article II.
Now, the President's lawyers are going to argue that he sat
silent because he wasn't paying attention, and he didn't hear
or appreciate what Mr. Bennett was saying. We have already seen
the video. And you know that he was looking so intently.
Remember he was intensely following the conversation with his
eyes. I don't know if you watched it on TV yesterday and
observed that. It was played twice. I don't know how anybody
can say this man wasn't paying attention. He certainly wasn't
thinking about anything else. That was very obvious from
looking at the video.
The President's other defense also falls apart on its face.
During his grand jury testimony, the President argued that when
Mr. Bennett characterized the Lewinsky affidavit as indicating
``there is no sex of any kind, in any manner, shape or form''
that it was a completely true statement because at that
particular time, at that moment, when the statement was being
made on January 17, 1998, there was no sex going on. That was
when the President made his famous utterings to the jury, ``It
depends on what the meaning of the word `is' is.'' That is when
he said that. Of course the President knew perfectly well that
the context of Mr. Bennett's discussions with the judge and
characterization of the Lewinsky affidavit was referring to the
denial in paragraph 8 of the affidavit that there had never
been any sexual relationship at any time, not that there was no
sex or sexual relationship going on on January 17, the day of
the deposition.
I implore you not to get hung up on some of the details. It
is absurd, some of the arguments that are being made and have
been made by the President and his attorneys to try to explain
this.
This is a perfect example of that. When we start looking
around at this, you can't see the forest sometimes for the
trees. The big picture is what you need to keep in mind, not
the compartmentalized portion. There will be a lot of effort, I
am sure, to try to go and pick at one thing or another. But
this is an extraordinarily good example of how the argument
failed when put in that situation. And we shouldn't play word
games.
When Monica Lewinsky was subpoenaed to testify, she was
also subpoenaed to produce any gifts that the President had
given her. When she met with Vernon Jordan the day she received
the subpoena, she told him of her concerns about the gifts and
she asked him to tell the President about the subpoena.
Early in the morning on December 28, near the end of the
year, they met, the President and Monica, in his office, and
they exchanged gifts and discussed the gifts being subpoenaed.
According to Ms. Lewinsky, she suggested that maybe she should
put the gifts away outside of her house somewhere or give them
to somebody like Betty Currie. She says he responded--the
President responded--with an ``I don't know,'' or ``let me
think about that.'' She was very clear that at no point did he
ever give her the impression that she should turn the gifts
over to the Jones attorneys.
That is consistent with their cover stories--the one later
and later in the perjury where the count discusses his lying to
the grand jury. Consistent with their cover stories and all the
plans for denying the relationship, her testimony in this
regard is very believable.
On the other hand, the President's testimony in front of
the grand jury that encouraged her to turn all of the gifts
over to the Jones attorneys is not believable. How can nobody
believe that? When he said that to the grand jury, he committed
perjury. When a few hours later, according to Monica Lewinsky,
Betty Currie called her on the telephone and said, ``I
understand you have something to give me,'' or maybe she said,
``the President said you have something to give me,'' and Betty
Currie came over and got the gifts and took them back and hid
them under her bed, at that moment, the President's crime of
obstruction of justice, as described in count 3 of article II,
was complete.
Remember, by its nature, obstruction of justice charges in
crimes are most frequently proven by circumstantial evidence.
As somebody said here the other day, we don't tell people we
are going to go out under the elm tree and lie and obstruct
things. Usually it is a lot more circuitous than that. In the
context of all that was going on at the time and the general
truthfulness of Monica Lewinsky's testimony, and other
respects, how can anyone come to any other conclusion than that
the President collaborated with Monica and Betty to hide these
gifts on December 28? How can they? The sequence is there.
The President's lawyers may spend a lot of time attacking
this particular obstruction of justice charge. They may
question why the President would have given Monica Lewinsky
more gifts on December 28 if he was expecting her to hide the
gifts. Monica's explanation and her testimony is ``from
everything he said to me,'' he expected her to conceal the
gifts, including the ones being given that day. When Ms.
Currie's call came, wasn't it the logical thing for Monica to
conclude that this was the result of the President having
thought about what to do with the gifts, which he said he was
going to do, according to her, and deciding to have Ms. Currie
hide them?
That is the logical thing.
The President's attorneys will no doubt also question the
veracity of Ms. Lewinsky with regard to who made the phone
call, since Ms. Currie's recollection isn't very good. And at
first she says she recalls Monica made it. Of course, the phone
records indicate that Ms. Currie called Ms. Lewinsky. That is
the much more logical sequence.
Also it doesn't make sense that the President's secretary,
who is so close to him--think about it--that she would have
taken the gifts and would have hidden them under her bed and
never talked with the President about doing so before or after
she did so. That doesn't make sense.
It is also noteworthy that the President did everything he
could in his January 17 deposition to conceal the true nature
of his relationship with Monica Lewinsky. This is consistent
with the arguments that he never intended the gifts be kept
from the Jones attorneys. He never intended them to be given to
the Jones attorneys. If he had intended to give these gifts to
the Jones attorneys, or have them given, why would he have gone
through this elaborate series of lies in that deposition?
Common sense tells us if he knew these gifts were revealed,
questions would be raised and his relationship revealed.
So all the logic is there. I don't know how you refute it.
Another obstruction count the President's attorneys are
likely to spend time on is one concerning the job search. There
is no question that Monica Lewinsky was looking for a job in
New York a long time before we get to December of 1997 and when
the affidavit and all of this took place, long before the
President had reason to be concerned that she would have to
testify or he would have to testify in the case. There is no
question about that. That is not the issue. The question is
whether or not the President intensified his efforts to get her
a job and make sure she got one after it became clear to him
that he would need her to lie, sign a false affidavit, and
stick with her lies in any questioning. That is what counts.
That is what is important. Did he intensify his efforts and
really go after it? Was it part of that pattern I described to
you earlier which Mr. Hutchinson described yesterday? That is
what is important.
In other words, as count 34 of article II alleges, did she
make sure she was rewarded with sticking with him in a scheme
of concealment in anticipation that this reward would keep her
happy and keep her from turning on him? Did the President make
sure Monica Lewinsky signed a false affidavit by getting her a
job?
The record shows that while she did give some interviews
from earlier contacts, including one involving the job with the
U.S. Ambassador to the United Nations, no one of real influence
around the President put on a full court press to get her a job
and she had not had any success as of December 6.
She had not been able to get in touch with Vernon Jordan in
her recent efforts. He had met with her once in November, but
as you recall from yesterday's discussions, something he didn't
even have a good memory of. He certainly wasn't very focused on
it, and she wasn't getting where she wanted to get.
And so on December 6 she mentioned that fact to the
President. Remember, that is one day after she was named on a
witness list. In fact, that is the day that he learned or may
have learned--we know he learned of her being on that witness
list. The President met with Vernon Jordan the next day, but he
apparently didn't mention Ms. Lewinsky, according to Jordan's
testimony. The record shows that not only on December 11 did
Mr. Jordan act to help Ms. Lewinsky find a job when he met with
her and gave her a list of contact names on December 11, Mr.
Jordan that same day made calls to contacts at MacAndrews &
Forbes, the parent corporation of Revlon, and two other New
York companies. He also telephoned the President to keep him
informed of his efforts.
Keep in mind that on this day, this very same day, December
11, Judge Wright issued her order in the Jones case entitling
Jones' lawyers to discover the President's sexual relations. Is
that a mere coincidence?
Later in December, Monica Lewinsky interviewed with New
York-based companies that had been contacted by Mr. Jordan. She
discussed her move to New York with the President during that
meeting on December 28. On January 5, she declined a United
Nations offer. On January 7, Ms. Lewinsky signed the false
affidavit. The next day, on January 8, she interviewed in New
York with MacAndrews & Forbes, but the interview went very
poorly. Learning of this, Vernon Jordan, that very day, called
Ronald Perelman, the chairman of the board of MacAndrews &
Forbes. She was interviewed the next morning again, and a few
hours later she received an informal offer. She told Jordan
about it. He immediately told Betty Currie about it, and he
personally told the President about it later.
On January 13, her job offer at Revlon was formalized, and
within a day or so President Clinton told Erskine Bowles that
Ms. Lewinsky had found a job in the private sector. It was a
big relief to him.
Then her false affidavit was filed, and on January 17 the
President gave a deposition relying on the false affidavit and
using their cover stories to conceal their relationship.
Was this full court press in December and early January to
assure Monica Lewinsky had a job just a coincidence? Logical
common sense says no; the President needed her to continue to
cooperate in his scheme to hide their relationship, keeping her
happy so he could control her and he would be assured that she
had filed this false affidavit and testifying untruthfully if
she was called. It is the only plausible rationale for this
stepped-up job assistance effort at this particular time. In
doing so, the President committed the crimes of obstruction of
justice and witness tampering as set forth in count 4 of
article II.
Well, we have gone through quite a few of these, and I am
trying to be brief with you, but I think each one of them is
important. Each one of them entangles the President further in
a web that fits together, and it is kind of sticky just like
the one the spider weaves.
During his deposition in the Jones case, the President
referred to Betty Currie several times and suggested that she
might have answers to some of the questions. He used the cover
stories, the same ones he and Monica talked about, and he
talked about Betty Currie a good deal because she was a part of
those cover stories. When he finished the deposition, he
telephoned Ms. Currie, and he asked her to come to his office
the next day and talk with him. Betty Currie told the grand
jury when she came in the next day the President raised his
deposition with her and said there were several things he
wanted to know, then rattled off what you heard yesterday in
succession: You were always there when she was there, right? We
never were really alone. You can see and hear everything.
Monica came on to me, and I never touched her, right? She
wanted to have sex with me, and I can't do that.
All of those weren't true. They were all falsehoods. They
were all declaratory statements. They weren't questions. It is
clear from the record that Ms. Currie always tried her best to
be loyal to the President, her boss. That is normal. That is
natural.
In answering the questions in her testimony, she tried to
portray the events and the President's assertions in the light
most favorable to him, even though she acknowledges that she
could not hear and see everything that went on between Monica
and the President and that she wasn't actually present in the
same room with them on any number of occasions, so they were
alone. And she could not say what they might have been doing or
saying.
On January 20 or 21, the President again met with Ms.
Currie and, according to her, recapitulated what he said on
Sunday, a day or two before, right after the deposition. In the
context of everything, it seems abundantly clear that the
President was trying to make sure that Betty Currie
corroborated his lies and cover stories from the deposition if
she was ever called to testify in the Jones case or grand jury
or any other court proceeding. That is what he was doing. In
doing so, the President committed the crimes of witness
tampering and obstruction of justice.
Later, the President testified, rather disingenuously, in
my judgment, that he was simply trying to refresh his memory
when he was talking to Ms. Currie. Ms. Currie's confirmation of
false statements that the President made in his deposition
could not in any way remind him of the facts. They were
patently untrue. The idea that he was trying to refresh his
recollection is implausible.
Recognizing the weakness of their client's case on this,
the President's attorneys have suggested that he was worried
about what Ms. Currie might say if the press really got after
her. That is what we heard, at least over in the Judiciary
Committee. Of course, it is possible the President was worried
about the press. I would suspect so. But common sense says he
was much more worried about what Betty Currie might say to a
court, after he had just named her several times and talked
about her, if she were called as a witness.
As those who follow me will tell you, the arguments by the
President's lawyers that Betty Currie wasn't on the Jones
witness list at the time and the window of opportunity to call
her as a witness in that case closed shortly thereafter is
irrelevant. They are going to argue--they argued to us that
Betty Currie's name wasn't on the witness list. That is a big
deal, they say. They say. But it is irrelevant. It doesn't
matter. Witness tampering law doesn't even require that a
pending judicial proceeding be going on for it to be a crime.
So whether her name was on the witness list or not makes no
difference.
There are two types of obstruction of justice. One does
require a pending proceeding. I submit--and you will hear more
about this later in the law--that in this instance the
President committed both of them. He certainly should have
anticipated that she would be called in the pending proceeding
that was going on in the Jones case, but even if there was no
pending proceeding--and you will, again, hear more about this
later--for the witness tampering part of the obstruction of
justice, it doesn't require there to have been an ongoing
judicial proceeding.
Within 4 or 5 days of his Jones deposition, the President
not only explicitly denied the true nature of his relationship
with Monica Lewinsky to key White House aides, he also
embellished the story when he talked with Sidney Blumenthal. To
Sidney Blumenthal, he portrayed Monica Lewinsky as the
aggressor, attacked her reputation by portraying her as a
stalker and presented himself as the innocent victim being
attacked by the forces of evil. Certainly he wanted his denial
and his assertions to be spread to the public by these aides,
but at the same time he knew that the Office of Independent
Counsel had recently been appointed to investigate the Monica
Lewinsky matter. He knew that at the time.
In the context of everything else that he was doing to hide
his relationship, it seems readily apparent that his false and
misleading statements to his staff members, whom he knew were
potential witnesses before any grand jury proceeding, were
designed in part to corruptly influence their testimony as
witnesses. In fact, the President actually acknowledged this in
his grand jury testimony, that he knew his aides might be
called before the grand jury. And one of the aides testified he
expected to be called. Sure enough, they were, and they
repeated the false and misleading information he had given
them. In this, the President committed the crimes of witness
tampering and obstruction of justice as set forth in count 7 of
article II.
Now, that is the obstruction of justice. Let's briefly
review the grand jury perjury for a minute.
If you believe Monica Lewinsky, the President lied to the
grand jury and committed perjury. If you believe her--and I
think this one is very important, not that they all aren't.
There was the web of the obstruction that I just described and
then there is the grand jury perjury on top of it. I told you
earlier, perjury and just plain lying can all be obstruction of
justice as well. But the grand jury part is much later. It is
after the President had time to really reflect on all of this,
a long time later.
If you believe Monica Lewinsky, the President lied to the
grand jury and committed perjury in denying he had sexual
relations with Monica Lewinsky even if you accept his
interpretation of the Jones court's definition of sexual
relations. That is really important. There isn't anything
clearer in the whole darned matter than that. Just look at the
President's grand jury testimony. And I am not going to go over
all of that, but it is on pages 93 and 96 of his grand jury
testimony. It is laid out in this chart which you have in front
of you, and I encourage you to read every page of it carefully.
Specifically, I call your attention to the fact--again, I am
not going to read all of this--but they asked him about
touching certain parts of the body that are defined in the
definition that you have had repeated many times, publicly and
otherwise. And two of those body parts he acknowledges, the
breast and genitalia, were in fact part of the definition. And
at the end of this--and I think this is very important; and I
am going to read it because it is part of his testimony--he
answers the question that is the compelling bottom line crime.
This is where he perjured himself above all else:
You are free to infer that my testimony is that I did not
have sexual relations, as I understood this term to be defined.
Q. Including touching her breasts, kissing her breasts, or
touching her genitalia?
A. That's correct.
In her sworn testimony, Monica Lewinsky described nine
incidents of which the President touched and kissed her breasts
and four incidents involving contact with her genitalia. On
these matters, Lewinsky's testimony is corroborated by the
sworn testimony of at least six friends and counselors to whom
she related these incidents contemporaneously.
Again, if you believe the testimony of Monica Lewinsky, and
it certainly is credible here--I think it is credible
throughout but it is certainly credible, with all the
corroboration you have in the record--there is nothing clearer
in all of this, in all of this you have before you, than that
the President committed the crime of perjury in testifying
before the grand jury regarding the nature and details of his
relationship with Monica Lewinsky.
On the other hand, there is plenty here to indicate the
President cleverly created his own narrow definition of sexual
relations to include only sexual intercourse, absent the
explicit definition of the court, after he had already lied in
responding to the interrogatories and other pleadings and
perhaps even in the depositions themselves in the Jones case.
In other words, you are free to deduce that he knew full well
what most people would include as sexual relations, oral sex,
and the other intimate activities that he was engaged in with
Ms. Lewinsky, before he contrived his own definition. In that
case, you don't even have to rely on Monica Lewinsky's
testimony to conclude that he committed the crime of perjury in
testifying before the grand jury on the nature of his
relationship with her.
There are other perjurious lies the President's grand jury
testimony contains regarding the nature and details of his
relationship with her. I am not going to outline all of those.
I want to call your attention to one. The President's prepared
statement, given under oath, said, ``I regret that what began
as a friendship came to include this conduct.'' You may
remember that from Mr. Rogan, I think, yesterday. ``I regret
that what began as a friendship came to include this conduct.''
That is what he said in the grand jury. The evidence indicates
that he lied. As Ms. Lewinsky testified, her relationship with
the President began with flirting, including Ms. Lewinsky
showing the President her underwear, and just a couple of hours
later they were kissing and engaging in intimacies. That is a
little bit more than friendship. He lied when he said that to
the grand jury.
Before the grand jury, the President swore that he
testified truthfully at his deposition. Remember, I told you I
was going to come back to this. It is important because the
Paula Jones deposition testimony is relevant to obstruction of
justice but it is also relevant to the perjury here, because
one of the portions of the perjury article that we have before
us includes this issue of lying in the deposition. The perjury
in this case is not the lying in the deposition, it is the
lying to the grand jury about whether he lied in the
deposition. He didn't have to have committed perjury. We didn't
send you the perjury count over from the deposition. But if he
lied--lying can be less than perjury. If he lied in the
deposition, and then he told the grand jury that he didn't lie,
he committed perjury in front of the grand jury.
The evidence indicates that he did lie. He testified before
the grand jury that ``my goal in this deposition was to be
truthful, but not particularly helpful . . . I was determined
to walk through the minefield of this deposition without
violating the law and I believe I did.''
Contrary to this testimony, the President was alone with
Ms. Lewinsky when she was not delivering papers, which he even
conceded in his grand jury statement. So he lied in the
deposition then when he said he wasn't alone with her.
In the deposition, the President swore he could never
recall being in the Oval Office hallway with Ms. Lewinsky
except when she was perhaps delivering pizza. The evidence
indicates that he lied.
The President swore, in the Jones deposition, that he could
not recall gifts exchanged between Monica Lewinsky and himself.
The evidence indicates that he lied.
He swore, in the deposition, that he did not know whether
Monica Lewinsky had been served a subpoena to testify in the
Jones case at the last time that he saw her in December 1997.
The evidence indicates that he lied.
In his deposition, the President swore that the last time
he spoke to Monica Lewinsky was when she stopped by before
Christmas 1997 to see Betty Currie at a Christmas party. The
evidence indicates that he lied.
In his deposition in the Jones case, the President swore
that he didn't know that his personal friend, Vernon Jordan,
had met with Monica Lewinsky and talked about the case. The
evidence indicates that he lied.
The President, in his Paula Jones deposition, indicated
that he was ``not sure'' whether he had ever talked to Monica
Lewinsky about the possibility that she might be asked to
testify in the Jones case. Can anybody doubt the evidence
indicates that he lied?
The President, in his deposition, swore that the contents
of the affidavit executed by Monica Lewinsky in the Jones case,
in which she denied they had a sexual relationship, were
``absolutely true.'' The evidence indicates that he lied.
In other words, when the President swore in the grand jury
testimony that his goal in the Jones deposition was to be
truthful but not particularly helpful, the evidence is clear
that he lied and committed the crime of perjury, inasmuch as he
had quite intentionally lied on numerous occasions in his
deposition testimony in the Jones case. His intention, in that
deposition, was to be untruthful. That is what it was all
about, to be untruthful. So he committed the crime of perjury
in front of the grand jury--big time.
The third part of article I concerning grand jury perjury
relates to his not telling the truth about false and misleading
statements his attorney, Robert Bennett--unintentionally, Mr.
Bennett, by the way, but nonetheless false and misleading
statements--Robert Bennett made to Judge Wright during the
President's Jones case deposition. We have been on that a lot.
I don't want to bore you with going over all those details
again, but this is the third part of the perjury count as well
as an obstruction of justice count.
During the President's deposition in the Jones case, Mr.
Bennett, however unintentional on his part, misled the court
when he said, ``Counsel [counsel for Ms. Jones] is fully aware
that Ms. Lewinsky has filed, has an affidavit which they are in
possession of saying that there is no sex of any kind, of any
manner shape or form, with President Clinton . . .'' Judge
Wright, as you recall again, interrupted Mr. Bennett and
expressed her concern that he might be coaching the President,
to which Mr. Bennett responded, ``in preparation of the witness
for this deposition, the witness is fully aware of Ms.
Lewinsky's affidavit, so I have not told him a single thing he
doesn't know . . .''
In his grand jury testimony about these statements by Mr.
Bennett to the judge in the Jones case, the President
testified:
I'm not even sure I paid attention to what he was saying. .
. . I didn't pay much attention to this conversation which is
why, when you started asking me about this, I asked to see the
deposition . . . 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 hearing. That
moment, the whole argument just passed me by.
In so testifying before the grand jury, the President lied
and committed the crime of perjury. As you saw yesterday in the
video, during this portion of that deposition when Mr. Bennett
was discussing this matter with Judge Wright, the President
directly looked at Mr. Bennett, paying close attention to his
argument to Judge Wright. He lied about that to the grand jury.
He committed perjury when he said that he wasn't paying
attention and he didn't know what Mr. Bennett was saying.
Several of the most blatant examples of grand jury perjury
are found in that portion of his testimony cited in the fourth
part, the last part of article I which goes to his efforts, the
President's efforts, to influence the testimony of witnesses
and to impede the discovery of evidence in the Jones case. The
President swore during the grand jury testimony that he told
Ms. Lewinsky that if the Jones lawyers requested the gifts
exchanged between them, she should provide them. If you believe
Monica Lewinsky's testimony, the President lied and committed
perjury.
In her grand jury testimony, Ms. Lewinsky discussed in
detail the December 28 meeting where gifts were discussed which
preceded by a couple of hours Ms. Currie coming to her
apartment and taking the gifts and hiding them under a bed. As
you recall, she said she raised with the President the idea of
removing her gifts from her house and giving them to somebody
like Betty Currie and that his response was something to the
effect of, ``Let me think about that.''
She went on to say that from everything he said to her,
they were not going to do anything but keep these gifts
private. In a separate sworn statement, she testified she was
never under the impression from anything the President said
that she should turn over the gifts to the Jones attorneys, and
obviously she didn't have the idea that she should do that
because she gave them all to Betty Currie to hide under the
bed.
When the President told the grand jurors that he was simply
trying to ``refresh'' his recollection when he made a series of
statements to Betty Currie the day after his deposition, he
lied and committed perjury. As I have already pointed out to
you today, the evidence is compelling that those statements,
such as ``I was never really alone with Monica, right?'' were
made to try to influence Betty Currie's possible testimony, so
that she would corroborate his cover stories and other false
statements and lies that he had given the previous day in the
Jones deposition, if she was called as a witness.
If you conclude that these series of statements constitute
witness tampering and obstruction of justice, then you must
also conclude that the President committed perjury when he
asserted that the sole purpose of these statements to Betty
Currie was to ``refresh'' his recollection. You have to. Even
if you were to buy the President's counsel's suggestion these
statements might have been made to influence her in order for
her to corroborate him, not in actual testimony in a court case
but with the press, which they have said again to us--I don't
know if they will say it to you--you would still conclude he
was lying when he said that this was simply only to refresh his
own recollection.
In the context of all of this, the idea that he was
refreshing his recollection by firing off these declarative
statements doesn't make sense. It just doesn't make sense. If
you read the statements and think about them on their face,
they are inherently inconsistent with refreshing his
recollection.
Also, the President told the grand jury that the things he
told his top aides about his relationship with Monica Lewinsky
may have been misleading but they were true. 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 in
his testimony before the grand jury on January 23 that the
President explicitly told him that he and Monica Lewinsky had
not had oral sex. Another is Sidney Blumenthal. His testimony
was that on January 23 the President told him that Monica
Lewinsky ``came at me and made a sexual demand on me'' and that
he rebuffed her. And also Blumenthal's testimony that the
President told him that Lewinsky threatened him and said that
she would tell people that they had had an affair and that she
was known as a stalker among her peers.
In short, the President lied numerous times before the
grand jury, my colleagues. He lied numerous times under oath
last August 17. He committed perjury numerous times under oath.
He certainly wasn't caught by surprise by any of this, by any
of the questions that were asked him during the grand jury
appearance, and he was given a lot of latitude. He was given
latitude normally that grand jury witnesses don't have--to give
a prepared statement, to have his counsel present, to refuse to
answer questions without taking the fifth amendment.
It is hard to imagine a case where it is clear that the
lies meet the threshold of the crime of perjury. But I will
leave the discussion of the elements and the law to the next
group that is going to come up here.
The facts are clear that the President lied about having
sexual relations with Monica Lewinsky even under his
understanding of the definition of the Jones case if you
believe Monica.
He lied when he said he gave truthful testimony in his
Jones deposition.
He lied when he said he wasn't paying attention to his
attorney's discussion of Monica Lewinsky's false affidavit
during his deposition in the Jones case.
He lied when he said he told Monica Lewinsky she should
turn over the gifts to the Jones lawyers if they asked for
them.
He lied when he told the grand jury that he made the
declaratory statements to Betty Currie to refresh his
recollection.
And he lied when he told the grand jury that he only told
the truth to his White House aides, such as John Podesta who
testified the President told him he had not had oral sex with
Lewinsky, and to Sidney Blumenthal who testified he told him
very exaggerated and highly untrue characterizations of Monica
Lewinsky's role in all of this.
These impeachment proceedings aren't before you because of
one or two lies about a sexual relationship. This is not about
sex. This is about obstruction of justice. This is about a
pattern. This is about a scheme. This is about a lot of lies.
This is about a lot of perjury. They are before you because the
President lied again and again in a perjurious fashion to a
grand jury and tried to get a number of people, other people,
to lie under oath in the Jones lawsuit and to the grand jury
and encouraged the concealment of evidence.
In a couple of days the President's lawyers are going to
have their chance to talk to you, and I suspect they will try
to get you to focus on 10, 15, or 20, or 30, maybe even 100
specific little details. They are going to argue that these
details don't square with some of the facts about this
presentation. But I would encourage you never to lose sight of
the totality of this scheme to lie and obstruct justice; never
lose sight of the big picture. Don't lose sight of the forest
for the trees. It is easy to do because there are a lot of
facts in this case.
I suggest you avoid considering any of this stuff in
isolation and treating it separately. The evidence and the
testimony needs to be viewed as a whole. The weight, we call it
in law--and you are going to hear that in a few minutes--the
weight of the evidence in this case is very great, it is huge
in its volume, that the President engaged in a scheme, starting
in December 1997, to conceal from the court in the Jones case
his true relationship with Monica Lewinsky and then cover up
his acts of concealment which he had to know by that time were
serious crimes.
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. Time and again, somebody is not
telling the truth. And time and again, an analysis of the
context, the motivation, and all of the testimony taken
together with common sense says it is the President who is not
telling the truth. 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. Let's
examine Monica Lewinsky, Vernon Jordan, Betty Currie and the
other key witnesses, let you examine the testimony, invite the
President to come, and judge for yourself their credibility.
But on the record, the weight of the evidence, taken from
what we have given you today, what you can read in all of these
books back here, everything taken together is huge that the
President lied. It is refutable, but it is not refutable if
somebody doesn't come in here besides just making an argument.
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. But
you have a chance to determine whether they are telling the
truth. The only way you will ever know that, other than just
accepting it if you think the evidence and the weight is that
huge--and it may be--is by looking them in the eye and
determining their credibility.
I believe that when you finish hearing and weighing all of
the evidence, you will conclude, as I have, that William
Jefferson Clinton committed the crimes of obstruction of
justice, witness tampering, and perjury, that these in this
case are high crimes and misdemeanors, that he has done grave
damage to our system of justice, and leaving him in office
would do more, and that he should be removed from office as
President of the United States.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
there now be a recess in the proceedings for 15 minutes. Please
return to your positions within 15 minutes.
There being no objection, at 2:11 p.m., the Senate recessed
until 2:30 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, as all Senators return to the
Chamber, I believe now we are going to go to a segment where we
will hear from three of the managers, including Congressmen
Gekas, Chabot, and Cannon, and then we will take another break
shortly after 3:30.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Gekas.
Mr. Manager GEKAS. Mr. Chief Justice, counsel for the
President, my colleagues from the House, and Members of the
Senate, up to now you have been fully informed of the state of
the record in this case in many different ways, in very many
different tonalities uttered by the managers, who so
magnificently, in my judgment, have woven the story that began
in 1997 and has not ended yet.
But the narrative that the managers were able to produce
for you and put on the record has met, even as we speak, with
commentary in the public that ``we have all known all of this
before.'' The big difference is that now it is part of the
history of the country. It is lodged in the records of the
Senate of the United States. And together with the
Congressional Record of the proceedings that preceded these in
the House, we now have the dawning of the final chapters of
this particular incident involving the President, in which you
will have the final word. But that is what the importance is of
what you have heard up until now--the complete record woven
together, step by step, so that no 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.
But the record is not yet complete, and that is where I and
Representative Chabot, Representative Cannon, and
Representative Barr come in, so that now we can take the next
step in fulfillment of the record, and that is, to try to apply
the statutory laws, the laws of our Nation as they pertain to
the facts that you now have well ingrained into your
consciences. To do that, we have to repeat some of the facts.
Some of these matters overlap, and just as you have given your
attention to the matters at hand up until now, your undivided
attention is needed continuously.
For instance, we cannot discuss even the application of
these statutes to the facts unless we repeat the series of
events that catapulted us to this moment in history. And we
must begin, as you have heard countless times now on and off
this floor, in my judgment, with the Supreme Court of the
United States, with all due deference to the Chief Justice,
because the Supreme Court at one point in this saga determined
in a suit brought by Paula Jones that indeed an average, day-
to-day, ordinary citizen of our Nation would have the right to
have a day in court, as it were, even against the President of
the United States. It is there that all of this began.
That fellow American, Paula Jones--no matter how she may
have been described by commentators and pundits and talking
heads, et cetera--did have a bundle of rights at her command.
Those rights went into the core of our system of justice to
bring the President into the case as a defendant. That is an
awesome and grand result of the Supreme Court decision at that
juncture. This is what is being overlooked, in my judgment, as
we pursue what we believe. If perjury indeed was committed--and
the record is replete that it in fact was--and if indeed
obstruction of justice was finally committed by the President
of the United States--as the evidence abundantly demonstrates--
then we must apply the rights of Paula Jones to what has
transpired.
We are not saying that the President--even though the
weight of the evidence demonstrates it amply--should be
convicted of the impeachment which has brought us to this floor
just because he committed perjury or obstructed justice, but
because as a result of his actions both in rendering falsehoods
under oath, as the evidence demonstrates amply, or in
obstructing justice, that because of his conduct, he attempted
to, or succeeded in, or almost succeeded in--it doesn't matter
which of these results finally emerges--and attempted to
destroy the rights of a fellow American citizen. That is what
the gravamen of all that has occurred up to now really is.
In attempting to obstruct justice, we mean by that
obstructing the justice of whom? It was an attempt, a bold
attempt, one that succeeded in some respects, to obstruct the
justice sought by a fellow American citizen. That is heavy.
That is soul searching in its quality. That goes beyond those
who would say, ``He committed perjury about sex. So what?''
That goes beyond saying that, ``This is just about sex. So
what? Everybody lies about sex.'' But when you combine all the
features of the actions of the President of the United States
and you see that they are funneled and tunneled and aimed and
targeted toward obliterating from the landscape the rights of
Paula Jones, a fellow American citizen, then you must take a
second look at your own assertion that, ``So what? It's just a
question of fact about sex.''
Many of the Members of this Chamber and others have already
acknowledged that the President has lied under oath. But then
they are quick to add, ``So what?'' which is so disturbing in
view of the results of what has happened in this case.
Before the House of Representatives, as part of our record,
we had a group of academicians, professors, testifying.
Professor Higgenbotham--who, sadly I must relate, has passed
away since his appearance--was trying to show how futile it was
for us to even attempt to append perjury to an indictable,
prosecutable offense, and that nowhere in the country is it
prosecuted regularly, and that it is so trivial because it is
based on sex. He went on to give an example of how trivial it
is. I am paraphrasing it, but he said: Would you expect to
indict the President of the United States for perjury if he
lied about a 55-mile-an-hour speed limit, even though he was
going 56? If he would say, ``I was only going 51,'' would you
indict him on that?
In the repartee that I had with him, at that juncture, I
asked him, would he feel the same if, as a result of that
perjurious testimony about only going 51 miles an hour, there
was a victim in the case, that this might be a tort case, an
``involuntarily'' case, a negligence case in which someone died
as a result of an automobile accident, and the issue at hand
would be the speed limit, would he feel the same way if, as a
result of the perjury committed as to the rate of speed, that
someone's rights were erased in the case by virtue of that
perjury, and the gentleman acknowledged that that made a
difference.
That is what the difference is here. The perjury per se,
that being a phrase that we lawyers can adopt, the perjury per
se is almost a given pursuant to the commentaries that we have
heard from the people in and out of that Chamber. But when you
add to it the terrible consequences of seeing a fellow citizen
pursuing justice thwarted, stopped in her tracks, as it were,
by reason of the actions of the President, that is what the
core issue here is.
To take it, then, from the status of what consequence it
had to that fellow American citizen to the next step is, in my
judgment, an issue to go to the determination of whether or not
there was an impeachable offense. My colleagues will show you
how the law of perjury and the law of obstruction of justice
relates to this pattern of factual circumstance that we bring
to you. But in the meantime we must recount, even at the risk
of overlapping some of the testimony, that following the
initial recognition by the President that there was going to be
a witness list and that Monica Lewinsky would eventually
appear, as she did, on that witness list, this occurred, which
is little examined thus far in the world of the scandal in
which we are all participants, and that is this: The first item
of business on the part of the Jones lawyers in pursuing the
rights of Paula Jones was to issue a set of interrogatories, a
discovery procedure that is well recognized in our courts all
over the land, and that a set of interrogatories arrived at the
President's desk.
At this juncture--this is way before the President appeared
at the deposition about which you know everything now. The
facts have been related to you in a hundred different ways, and
you know that pretty well. I know you do. But did you know, can
you fasten your attention for a moment knowing that this
happened at the deposition a month before, on December 23,
1997, when the President had in front of him interrogatories
that asked, did he ever have sexual relations with anyone other
than his spouse during the time that he was Governor of
Arkansas or President of the United States? And there the
President answered--or I think that the interrogatory stated:
Name any persons with whom you have had sexual relations other
than your wife. And the answer that the President rendered in
those interrogatories under oath was none.
I say to the ladies and gentlemen of the Senate that this
was the first falsehood stated under oath which became a chain
reaction of falsehoods under oath, and even without the oath,
all the way to the nuclear explosion of falsehoods that were
uttered in the grand jury in August of 1998.
This little innocuous piece of paper called interrogatories
was placed before the President presumably with or without
counsel. Let's even presume with counsel. And it was a straight
question, not with any definitions, no confusing colloquy
between a judge and a gaggle of lawyers, no interpretation
being put on any particular word in the interrogatories, but
whether or not sexual relations had been urged or participated
in by the President of the United States, and the answer was
none in naming those persons.
What does that mean to you? What does that not mean to you?
That when confronted right at the outset with the phrase
``sexual relations'' that the President adopted and determined
the common usage, well-understood definition of sexual
relations that everybody in America recognizes as being the
true meaning of sexual relations, meaning sex of any kind. Did
not the President answer that under the common understanding
that all of us entertain when we discuss, more so in the last
year than ever before in our lives, the phrase ``sexual
relations''? To me that is a telling feature of this case
because when you leap over that and get to the depositions and
everything that the President might have said in those
depositions, as his counsel have repeatedly asserted to us were
true, that he did not lie, that he did not commit perjury, that
he did not evade the truth, that some of it was puzzling to
them even, but it did not amount to perjury, what can they say
about the statement one month before on December 23 in
interrogatories?
That is extremely important. That is my recollection. Yours
is the one that will have to predominate, of course.
But the weight that I put on it, I urge you to at least
evaluate as you begin to level your weight on the evidence that
has been presented.
If that were not enough, on January 15, again before the
deposition, another interrogatory--this one a request for
documents--was submitted to the President, and again the
question there was--you will see it in the record; it is in the
record--the request of documents says to submit anything that
pertained to Monica Lewinsky, the intern or employee, Monica
Lewinsky, of whatever description--notes, gifts, whatever, and
the President in that particular instance again said none. I am
willing to give the President a reasonable doubt on that and
even ask you, if you do not place as much weight on it as I do,
to forget all about that. But the point is that these
assertions under oath were made before the Jones deposition was
ever even conceived, let alone undertaken on January 17.
So he cannot, the President cannot use the lawyer talk and
judge banter and the descriptions and definitions of sexual
relations to cloud the answers that he gave at that time, and
all of this in the continuous effort to destroy the rights of
Paula Jones, a fellow American citizen.
That brings up the question. If someone, a member of your
family, or someone who is a witness to these proceedings has a
serious case in which one's self, one's property, one's family
has been severely damaged, would you suffer, without a whimper,
perjurious testimony given against you? Would you, knowing down
deep that at the end of the day it had caused you to lose your
chance at retribution and a chance to be compensated for
damages, to restore your family life?
Isn't that what our system is all about? Isn't that what
the adverse consequence is of the attempt to obliterate the
Paula Jones civil suit?
That is what it is, not that he committed perjury. So what?
It is what the end result of that perjury might be that you
should weigh. Skip over the fact that he committed perjury. We
all acknowledge that it is said. But now tell me what that does
to Paula Jones, or potentially could do to Paula Jones, or to
one of you, or to one of your spouses, or to one of the members
of your community who wants to have justice done in the courts.
Obstruction of justice is obstruction of justice to an
individual, to a family. You can take it from Paula Jones and
telescope it upward to every community, in every courthouse,
and every State and every community in our land, and there is a
Paula Jones eager to assert certain rights and then confronted
with someone who would tear them down by false testimony, by
lies under oath.
That is what the gravamen of all this really is.
One more thing. The counsel for the President have
repeatedly and very authoritatively, professionally asserted,
as many of you have, that this is not an impeachable offense,
for, after all, they say, an impeachable offense is one in
which there is a direct attack on the system of government; not
perjury, not obstruction of justice.
So what, on those, they imply. They say it does not--
perjury, especially about sex--attack the system of government.
I must tell you that as an 8- or 9- or 10-year-old, I would
accompany my mother to naturalization school three or four
nights a week where my mother was intent on learning the
English language and learning about the history of the United
States, as the teachers for naturalization were preparing these
prospective citizens. And she was so proud that she learned
that the first President of the United States was George
Washington, and was prepared to answer that question if it was
posed to her in naturalization court. And she was so proud when
I was testing her, preparing her. Each time I would say, ``Mom,
what are the three branches of Government?'' And she would say,
``The `Exec' and the `legislate' and the `judish,' '' in her
wonderful, lovable accent. She knew the system of government.
And she did have to answer that in naturalization court. And
she knew that one wall of the creed that protects our rights is
the ``judish.'' She knew that the courthouse and the rights of
citizens which are advanced in that courthouse are the system
of government. Can anyone say that purposely attempting to
destroy someone's case in the courthouse is not an attack on
the system of government of our country?
Mr. Chabot will elucidate on perjury.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Chabot.
Mr. Manager CHABOT. Mr. Chief Justice, Senators,
distinguished counsel for the President, I am Steve Chabot. I
represent the First District of Ohio. Prior to my election to
Congress, I practiced law in Cincinnati for about 15 years. As
I stand before you today, I must admit that I feel a long way
away from that small neighborhood law practice that I had.
Though, while this arena may be somewhat foreign to me, the law
remains the same. As one of the managers who represents the
House, I am here to summarize the law of perjury. While today's
discussion of the law may not be as captivating as yesterday's
discussion of the facts, it is nevertheless essential that we
thoroughly review the law as we move forward in this historic
process. I will try to lay out the law of perjury as succinctly
as I can without using an extraordinary amount of the Senate's
time but beg you to indulge me.
In the United States Criminal Code, there are two perjury
offenses. The offenses are found in sections 1621 and 1623 of
title 18 of the United States Criminal Code. Section 1621 is
the broad perjury statute which makes it a Federal offense to
knowingly and willfully make a false statement about a material
matter while under oath. Section 1623 is the more specific
perjury statute which makes it a Federal offense to knowingly
make a false statement about a material matter while under oath
before a Federal court or before a Federal grand jury.
It is a well-settled rule that when two criminal statutes
overlap, the Government may charge a defendant under either
one. As you know, the President's false statements covered in
the first impeachment article were made before a Federal grand
jury. Therefore, section 1623 is the most relevant statute.
However, section 1621 is applicable as well.
The elements of perjury. There are four general elements of
perjury. They are: An oath, an intent, falsity, and
materiality. I would like to walk you through each of those
elements at this time.
First, the oath.
The oath need not be administered in a particular form, but
it must be administered by a person or body legally authorized
to do so. In this case, there has been no serious challenge
made about the legitimacy of the oath administered to the
President either in his civil deposition in the Jones v.
Clinton case or before the Federal grand jury. Let's, once
again, witness President Clinton swearing to tell the truth
before a Federal grand jury.
[Text of videotape presentation:]
William Jefferson Clinton, Do you solemnly swear that the
testimony you are about to give in this matter will be the
truth, the whole truth, and nothing but the truth, so help you
God?
The oath element has clearly been satisfied in this case.
The next element is intent. To this day, the President has
refused to acknowledge what the vast majority of Americans know
to be true--that he knowingly lied under oath. The President's
continued inability to tell the truth, the whole truth and
nothing but the truth has forced this body, this jury, to
determine the President's true intent.
The intent element requires that the false testimony was
knowingly stated and described. This requirement is generally
satisfied by proof that the defendant knew his testimony was
false at the time it was provided. As with almost all perjury
cases, you will have to make a decision regarding the
President's knowledge of his own false statements based on the
surrounding facts and, yes, by circumstantial evidence. This
does not in any way weaken the case against the President. In
the absence of an admission by the defendant, relying on
circumstantial evidence is virtually the only way to prove the
crime of perjury.
The Federal jury instructions which Federal courts use in
perjury cases can provide helpful guidance in understanding
what is meant by the requirement that the false statement must
be made knowingly. Let me quote from the Federal jury
instructions:
When the word ``knowingly'' is used, it means that the
defendant realized what he was doing and was aware of the
nature of his conduct, and did not act through ignorance,
mistake or accident.
So as you reflect on the President's carefully calculated
statements, remember the Federal jury instructions and ask a
few simple questions: Did the President realize what he was
doing, what he was saying? Was he aware of the nature of his
conduct or did the President simply act through ignorance,
mistake or accident?
The answers to these questions are undeniably clear even to
the President's own attorneys. In fact, Mr. Ruff and Mr. Craig
testified before the Judiciary Committee that the President
willfully misled the court. Let's listen to Mr. Ruff.
[Text of videotape presentation:]
Mr. Ruff. I'm going to respond to your question. I have no
doubt that he walked up to a line that he thought he understood
reasonable people--and you maybe have reached this conclusion--
could determine that he crossed over that line and that what
for him was truthful but misleading or nonresponsive and
misleading or evasive was in fact false.
In an extraordinary admission, the President's own attorney
has acknowledged the care, the intention, the will of the
President to say precisely what he said.
The President's actions speak volumes about his intent to
make false statements under oath. For example, the President
called his secretary, Betty Currie, within hours of concluding
his civil deposition and asked her to come to the White House
the following day. President Clinton then recited false
characterizations to her about his relationship with Ms.
Lewinsky. As you have already heard, Ms. Currie testified that
the President made the following statements to her:
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 can't do that.
This is not the conduct of someone who believed he had
testified truthfully. It is not the conduct of someone who
acted through ignorance, mistake or accident. Rather, it is the
conduct of someone who lied, knew he had lied, and needed
others to modify their stories accordingly.
Finally, it is painstakingly clear during the President's
grand jury testimony that he, again, knows exactly what he is
doing. Let's again watch the following excerpt from that
testimony.
[Text of videotape presentation:]
. . . was an utterly false statement. Is that correct?
A. It depends on what the meaning of the word ``is'' is.
In this instance, and in many others that have been
presented to you over the last 2 days, the facts and the law
speak plainly.
The President's actions and demeanor make the case that
President Clinton knowingly and willfully lied under oath in a
grand jury proceeding and in a civil deposition. The compelling
evidence in this case satisfies the intent element required
under both sections 1621 and 1623 of the Federal Criminal Code.
The next element, falsity. The next element of perjury is
falsity. In order for perjury to occur in this case, the
President must have made one or more false statements.
Yesterday my colleagues went through the evidence on this
matter in great detail and clearly demonstrated that the
President did, in fact, make false statements while under oath.
Because of the evidence that was presented to date, without
question the President's falsity and his false statements have
been shown, so I am going to move forward to the final element
of perjury, which is materiality.
The test for whether a statement is material, as stated by
the Supreme Court in Kungys v. United States, is simply whether
it had a ``natural tendency to influence'' or was ``capable of
influencing'' the official proceeding. The law also makes clear
that the false statement does not have to actually impede the
grand jury's investigation for the statement to be material.
The law regarding the materiality of false statements
before a grand jury is very straightforward. Because a grand
jury's authority to investigate is broad, the realm of
declarations regarded as material is broad. The President's
false statements to the grand jury were material because the
grand jury was investigating whether the President had
obstructed justice and committed perjury in a civil deposition.
Now let's look at potential legal smokescreens. The
President's attorneys will try to distract you from the
relevant law and facts in this case. To help you stay focused
on the law, I would like to preview some of the arguments that
may be made by the President's attorneys.
Legal smokescreen No. 1, the Bronston case. You will
probably hear opposing counsel argue that the President did not
technically commit perjury, and appeal to the case of Bronston
v. United States. This is a legal smokescreen. In the Bronston
case, the Supreme Court held that statements that are literally
truthful and nonresponsive cannot by themselves form the basis
for a perjury conviction. This is the cornerstone of the
President's defense. However, the Court also held that the
unresponsive statements must be technically true in order to
prevent a perjury conviction; such statements must not be
capable of being conclusively proven false.
As we have seen, none of the President's perjurious
statements before the grand jury, covered in the first
impeachment article, are technically true. So, when the
President's counsel cites the Bronston case, remember the
facts. Ask yourselves, are the President's answers literally
true? And remember, to be literally true they must actually be
true.
It is also important to note that, consistent with the
Bronston case, the response, ``I don't recall,'' is not
technically true if the President actually could recall. The
factual record in the case, consisting of multiple sworn
statements contradicting the President's testimony and highly
specific corroborating evidence, demonstrates that the
President's statements were not literally true or legally
accurate. On the contrary, the record establishes that the
President repeatedly lied, he repeatedly deceived, he
repeatedly feigned forgetfulness.
There are other clear and important limitations on the
Bronston case's scope. In United States v. DeZarn, handed down
just 3 months ago by the Sixth Circuit Court of Appeals, the
court made an important ruling that is directly on point in
this case. The court of appeals stated:
Because we believe that the crime of perjury depends not
only upon the clarity of the questioning itself, but also upon
the knowledge and reasonable understanding of the testifier
[President Clinton] as to what is meant by the questioning, we
hold that a defendant may be found guilty of perjury if a jury
could find beyond a reasonable doubt from the evidence
presented that the defendant knew what the question meant and
gave knowingly untruthful and materially misleading answers in
response.
The Bronston case has further limitations. For example, in
United States v. Swindall, the court held that the jury can
convict for perjury even if the questions or statements
involved are capable of multiple interpretations where only one
interpretation is reasonable under the circumstances
surrounding their utterances.
In United States v. Doherty, the court held that the
prosecution for perjury is not barred under Bronston,
``whenever some ambiguity can be found by an implausibly
strained reading of the question'' posed. I would submit to
this body that ``implausibly strained reading of the question''
posed is precisely what confronts us time and again in the case
of the President before the grand jury.
Legal smokescreen No. 2, the two-witness rule. In the
coming days you may hear opposing counsel argue that the
President did not commit perjury by appealing to the so-called
two-witness rule. Again, this is nothing but a legal
smokescreen. This common law rule requires that there be either
two witnesses to a perjurious statement or, in the alternative,
that there be one witness and corroborating evidence of the
perjury. Opposing counsel may suggest that, because there were
not two witnesses present for some of the President's false
statements, he did not technically commit perjury. Such an
appeal to the two-witness rule is wrong for several reasons.
First, the two-witness rule is not applicable under section
1623, only under 1621. The language of 1623 expressly provides,
``it shall not be necessary that such proof be made by any
particular number of witnesses or by documentary or other type
of evidence.''
Congress passed section 1623 back in 1970 to eliminate the
two-witness requirement and to facilitate the prosecution of
perjury and enhance the reliability of testimony before Federal
courts and Federal grand juries. The legislative history
establishes this as the fundamental purpose of the statute.
Additionally, substantial evidence has been presented over
the last 2 days to satisfy the requirements of the two-witness
rule under section 1621. Remember, when the two-witness rule
applies, it does not actually require two witnesses. Indeed, it
requires either two witnesses or one witness and corroborating
evidence. As you know, there is a witness to each and every one
of the President's false statements and there is voluminous
evidence which corroborates the falsehood of his statements.
Finally, case law tells us that the two-witness rule is not
applicable under certain circumstances, when the defendant
falsely claims an inability to recall a material matter.
Another possible legal smokescreen, the drafting of article
I, article I being the first article of impeachment.
As you know, impeachment article I says:
Contrary to that oath, William Jefferson Clinton willfully
provided perjurious, false and misleading testimony to the
grand jury . . .
You may hear opposing counsel argue that section 1621 is
the only applicable statute because the article of impeachment
accuses the President of willfully committing perjury. This is
another legal smokescreen.
Following that reasoning, one could just as easily make the
argument that 1623 was contemplated here because the term
``false'' does not appear in 1621 but does appear in 1623.
However, that is not the point. The point is that the language
of the impeachment article did not use these terms as terms of
art as they are defined and used in various criminal statutes.
While the article of impeachment does not draw a
distinction between the standards, evidence has been presented
over the last 2 days that demonstrates that the President did
knowingly and willfully lie under oath regarding material
matters before a grand jury, and that satisfies both 1623 and
1621.
Again, in the context of perjury law, the distinction
between a knowing falsehood and a willful falsehood is almost a
distinction without a difference. In American Surety Company v.
Sullivan, the Second Circuit stated that ``the word `willful,'
even in a criminal statute, means no more than the person
charged with the duty knows what he is doing.''
So that, in essence, is the law of perjury.
Mr. Chief Justice, Members of the Senate, throughout this
long and difficult process, apologists for the President have
maintained that his actions might well have been reprehensible
but are not necessarily worthy of impeachment and removal from
office. I submit, however, that telling the truth under oath is
critically important to our judicial system and that perjury,
of which I believe a compelling case is being made, strikes a
terrible blow against the machinery of justice in this country.
The President of the United States, the chief law
enforcement officer of this land, lied under oath. He raised
his right hand and he swore to tell the truth, the whole truth,
and nothing but the truth, and then he lied, pure and simple.
Why is perjury such a serious offense? Under the American
system of justice, our courts are charged with seeking the
truth. Every day, American citizens raise their right hand in
courtrooms across the country and take an oath to tell the
truth. Breaking that oath cripples our justice system. By lying
under oath, the President did not just commit perjury, an
offense punishable under our criminal code, but he chipped away
at the very cornerstone of our judicial system.
The first Chief Justice of the United States of the Supreme
Court, John Jay, eloquently stated why perjury is so dangerous
over 200 years ago. On June 25, 1792, in a charge to the grand
jury of the Circuit Court for the District of Vermont, the
Chief Justice said:
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 Streams of
Justice, and by substituting Falsehood for Truth, saps the
Foundations 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 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.
Why has the President been impeached by the U.S. House of
Representatives? Why is he on trial here today in the U.S.
Senate? Because he lied under oath. Because he committed
perjury. Because if the oaths cease to be held sacred, our
dearest and most valuable rights will become insecure.
During the course of this trial, Members of this
distinguished body, the jurors in this case, will have to
consider the law and the facts very carefully. It is a daunting
task and an awesome responsibility, one that cannot be taken
lightly. I humbly suggest to those sitting in judgment of the
President that we must all weigh the impact of our actions, not
only on our beloved Nation today, but on American history. It
is my belief that if the actions of the President are
ultimately disregarded or minimized, we will be sending a sorry
message to the American people that the President of the United
States is above the law. We will be sending a message to our
children, to my children, that telling the truth doesn't really
matter if you have a good lawyer or you are an exceptionally
skilled liar. That would be tragic.
Mr. Chief Justice, Senators, let us instead send a message
to the American people and to the boys and girls who will be
studying American history in the years to come that no person
is above the law and that this great Nation remains an entity
governed by the rule of law. Let us do what is right. Let us do
what is just. Thank you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Cannon.
Mr. Manager CANNON. Mr. Chief Justice, Senators,
distinguished counsel of the President, my name is Chris
Cannon. I represent Utah's Third Congressional District.
John Locke once said, ``Wherever law ends, tyranny
begins.'' And speaking to our American experience, Teddy
Roosevelt added, ``No man is above the law and no man is below
it; nor do we ask any man's permission when we require him to
obey it. Obedience to the law is demanded as a right; not as a
favor.''
This case is about the violation of law. My task is to
clarify what the law states pertaining to obstruction of
justice and what legal precedent is applicable to the charges
against William Jefferson Clinton.
While both the laws and the violations in this case are
clear and direct, the presentation I am about to make will not
be simple. I ask your indulgence and attention as I walk you
through case history and statutory elements. I promise to be
brief--probably less than a half-hour--and direct.
I will present the legal underpinnings of the law of
obstruction of justice. You should have before you the full
text of this speech, including full citations to cases and
copies of the charts I will use in this presentation.
Article II of the articles of impeachment alleges that the
President prevented, obstructed, and impeded the administration
of justice, both personally and through his subordinates and
agents, and that he did so as part of a pattern designed to
delay, impede, cover up, and conceal the existence of evidence
and testimony related to a Federal civil rights action brought
against him.
Article II specifies seven separate instances in which the
President acted to obstruct justice. The House believes the
evidence in this case proves that each of the seven separate
acts which comprise the President's scheme constitutes
obstruction of justice.
I would like to draw your attention at this time to the
chart on my right, and the first page in your packet, which
depicts elements of section 1503:
(a) Whoever . . . corruptly . . . influences, obstructs or impedes;
or endeavors to influence, obstruct or impede, the due administration
of justice, shall be punished as provided in subsection (b).
(b) The punishment for an offense under this section is . . .
(3) . . . imprisonment for not more than 10 years, a fine under
this title, or both.
Section 1503 is often referred to as the general
obstruction statute. It describes obstruction simply as an
impact on the due administration of justice.
Section 1503 deems it criminal to use force or threats, or
to otherwise act corruptly, in order to influence, obstruct, or
impede the due administration of justice.
Federal court rulings clarify that it is not necessary for
a defendant to succeed in obstructing justice. Again, I direct
your attention to the chart, or the accompanying chart, in your
package.
Russell and Aguilar each ruled that it is not necessary
that a defendant's endeavor succeed for him to have violated
the law. Rather, simply attempting to influence, obstruct, or
impede the due administration of justice violates the statute.
Maggitt clearly stated, ``it is the endeavor to bring about
a forbidden result and not the success in actually achieving
the result, that is forbidden.''
For the Government to prove a section 1503 crime, it must
demonstrate that the defendant acted with intent. This can be
shown through use of force, threats by the defendant, or by
simply showing that the defendant acted ``corruptly.'' The
following chart gives three case histories regarding the term
``acting corruptly.''
Haldeman and Sprecher held that a defendant acts corruptly
by having an evil or improper purpose or intent.
Barfield defined ``acting corruptly'' as knowingly and
intentionally acting in order to encourage obstruction.
Sprecher also ruled the Government need not prove the
actual intent of the defendant, but, rather, the intent to act
corruptly can be inferred from that proof that the defendant
knew corrupt actions would obstruct the justice being
administered.
Under section 1503, the Government must also prove that the
defendant endeavored to influence, obstruct or impede the due
administration of justice. The statute is broadly applicable to
all phases of judicial proceedings.
Brenson described due administration of justice as
``providing a protective cloak over all judicial proceedings,
regardless of the stage in which the improper activity
occurs.''
Section 1503 is also intended to protect the discovery
phase of a judicial proceeding, stating that the phrase ``due
administration of justice'' is intended to provide a ``free and
fair opportunity to every litigant in a pending case in Federal
court to learn what he may learn . . . concerning the material
facts and to exercise his option as to introducing testimony of
such facts.''
The House believes that the facts of this case make it very
clear that the President did, corruptly, impair the ability of
a litigant in Federal court to learn all of the facts that she
was entitled to learn. In doing so, the President committed
obstruction of justice under section 1503.
The other Federal crime which the President committed was
witness tampering under section 1512 of title 18. Again, I
refer you to the chart on my right, and to the second page in
the package, which depicts the elements of the section.
(b) 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; or
(2) cause or induce any person to--
(A) withhold testimony, or withhold a . . . document . . . or an
object . . . from an official proceeding;
. . . shall be fined under this title, or imprisoned for not more
than ten years or both.
Sections 1503 and 1512 differ in an important way. There
does not need to be a case pending at the time the defendant
acts to violate the law under section 1512. The statute
specifically states that ``for the purpose of this section, an
official proceeding need not be pending or about to be
instituted at the time of the offense . . .'' for the crime to
be committed.
Putting it another way, a person may attempt to tamper with
a witness and commit the crime of witness tampering before such
a person is called as a witness and even before there is a case
underway in which that person might be called to testify.
For the Government to prove the crime of witness tampering,
it must prove that the defendant acted with the intent to cause
one of several results. The defendant can be convicted if he
acted to influence, delay or prevent the testimony of any
person in an official proceeding; or the defendant can be
convicted if he acted to cause another person to withhold an
object from an official proceeding.
In the case before us, the evidence proves that the
President endeavored to cause both of these results on several
occasions. And the Government may show intent on the part of
the defendant in several ways. It may prove the use of
intimidation, physical force or threats; or it may prove intent
by showing the use of corrupt persuasion or misleading conduct.
In this case, the evidence shows that on several occasions
the President acted corruptly to persuade some witnesses, and
engaged in misleading conduct toward others, in order to
influence their testimony and cause them to withhold evidence
or give wrongful testimony. In each instance, the President
violated the witness tampering statute.
How does acting corruptly to persuade a witness differ from
engaging in misleading conduct? Section 1515 in title 18
states:
(a) as used in section 1512 [the witness tampering section] . . .
of this title and this section--
(3) the term ``misleading conduct'' means--
(A) knowingly making a false statement; or
(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; or
(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;
The difference between corruptly persuading a witness and
engaging in misleading conduct toward the witness depends on
the witness' level of knowledge about the truth of the
defendant's statement.
Rodolitz held that misleading conduct involves a 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.''
Let me clarify this detail: If a defendant simply asks a
witness to lie and the witness knows that he is being asked to
lie, then the defendant is corruptly persuading the witness. In
contrast, if a defendant lies to a witness, hoping the witness
will believe his story, this is misleading conduct. They are
different, but they are both criminal.
Some may ask if it is necessary that the witness who is
influenced or tampered with know that he or she might be called
to testify? The answer is no.
And both sections 1503 and 1512 answer this question:
The witness tampering statute can be violated even if the
victim has not been subpoenaed or listed as a potential witness
in an ongoing proceeding.
In Shannon, the U.S. Court of Appeals for the Eighth
Circuit reviewed the conviction of a defendant under section
1503 who had attempted to influence the testimony of a person
who had not yet been subpoenaed or placed on a witness list. On
appeal, the defendant argued that because the target of the
obstruction had not yet become an official witness in the case,
it was impossible for the defendant to have engaged in
obstruction toward her. The court of appeals rejected that
assertion. In affirming the conviction, the court held
``neither must the target be scheduled to testify at the time
of the offense nor must he or she actually give testimony at a
later time. It is only necessary that there is a possibility
that the target of the defendant's activities be called on to
testify in an official proceeding.''
The witness tampering statute can be violated even when no
case is pending.
Therefore, it will not always be clear to whom the
defendant intended the individual to testify--and the statute
does not require proof of this.
In Morrison, the United States Court of Appeals for the
District of Columbia explained that section 1512 is violated if
the defendant asks a person to lie ``to anyone who asks.'' The
court held that it is not necessary that the defendant even use
the words ``testify'' or ``trial'' when he tries to influence
the testimony of the other person. In such a case, there are no
subpoenas, there are no witness lists.
The mere attempt to influence the person to lie, if asked,
is the crime.
So, under either section 1503 or 1512, the fact that the
target of a defendant's actions is not named as a witness, or
whether the person is not ever called to be a witness, is
immaterial.
The focus of both statutes is on what the defendant
believed.
If the defendant believes that it is possible that some
person might some day be called to testify at some later
proceeding and then acted to influence, delay or prevent his or
her testimony, the defendant commits the crime.
Now, some have asserted that an obstruction of justice
charge cannot, or should not, be made against the President
because some of his acts occurred in the context of a civil
trial. There is simply no merit to this view.
There is no question that the obstruction and witness
tampering statutes can be violated by acts that occur in civil
proceedings. And, case law is consistent in upholding that any
attempt to influence, obstruct or impede the due administration
of justice in a civil proceeding violates section 1503.
Lundwall, which I referred to earlier, is a perfect
example, as it began as a civil case.
The actual language of the witness tampering statute makes
it clear that it also applies to civil cases.
The statute provides for enhanced penalties in criminal
proceedings--a provision that would be unnecessary if the law
were only to apply to criminal cases.
In short, the fact that some instances of the President's
misconduct occurred in the course of a civil proceeding does
not absolve him of criminal liability.
As Mr. Barr will demonstrate, the President of the United
States endeavored and did obstruct justice and tamper with
witnesses in violation of the law of the United States.
On numerous occasions he acted with an improper purpose
with the intent to interfere with the due administration of
justice in the Federal civil rights lawsuit filed by Paula
Jones.
President Clinton corruptly endeavored to persuade
witnesses to lie. In some cases, he succeeded. In every case,
he violated the law.
President Clinton engaged in misleading conduct in order to
influence the testimony of witnesses in judicial proceedings.
He succeeded. In each case, he violated the law.
President Clinton acted with an improper purpose to
persuade a person to withhold objects from a judicial
proceeding in which that person was required to produce them.
He succeeded, and in so doing he violated the law.
President Clinton made misleading statements for the
purpose of deterring a litigant from further discovery that
would lead to facts which the judge ordered relevant in a
Federal civil rights case. In so doing, he obstructed the due
administration of justice in that case and violated the law.
Whether attempting to persuade a person to testify falsely,
or to ignore court orders to produce objects; whether
suggesting to an innocent person a false story in hopes that he
or she will repeat it in a judicial proceeding; or testifying
falsely in the hopes of blocking another party's pursuit of the
truth--all these acts obstruct justice; all these acts are
Federal felony crimes; all these acts were committed by William
Jefferson Clinton.
Thank you.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
there now be a recess again of the proceedings for 15 minutes.
Please return promptly to the Chamber.
There being no objection, at 3:29 p.m., the Senate recessed
until 3:47 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready for the
final subject today, from Manager Barr.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Barr.
Mr. Manager BARR. Thank you, Mr. Chief Justice.
Mr. Chief Justice, Senators, learned counsel for the
President, and fellow managers on behalf of the House of
Representatives, I thank the Senate for the opportunity to
appear today and to present this argument. The House, and I,
especially, greatly appreciate the time and effort the Senate
has taken on this most important and notable matter.
You have heard the facts summarized by my colleagues. They
have described for you the law of perjury and the law of
obstruction. I will discuss several of the specific instances
in which William Jefferson Clinton violated these laws as set
forth in the articles of impeachment presented to you.
The process facing you as jurors, of fitting the Federal
law of obstruction of justice and of witness tampering and of
perjury into the facts of the case against President William
Jefferson Clinton, is not a case in which there is nor should
be a great deal of difficulty. It is not a problem of fitting a
round peg into a square hole. Quite the contrary. We have a
case here, you have a case here, for consideration in which the
fit between fact and law is as precise as the finely tuned
mechanism of a Swiss watch or as seamless a process as the
convergence and confluence of two great rivers such as flow
through many of the cities which you represent. The evidence
that President William Jefferson Clinton committed perjury and
obstruction of justice is overwhelming. These are pattern
offenses.
I beg your attention to the following exposition of facts
and law. But before commencing, I would like to address three
issues that have come up during the course of the proceedings,
which I believe might be helpful for all of us to keep in mind
as we proceed not only through today's final presentations but
tomorrow's and those that will be made by learned counsel for
the President.
First, by way of background on the process--that is, the
process that brings us, the House managers, to the well of this
great body and the trial of the President of the United States
of America--as has been indicated previously by one of my
colleague House managers, and as everyone here knows full well,
the responsibilities, the jurisdiction, and the process between
the House of Representatives and the Senate is very different
in all three of those respects. Therefore, while coming as no
surprise to all of you, all of us in this room, but perhaps to
some in America, the steps that each body takes, and should
take and must take, are very different.
Just as one example, one might ask, ``Why were no witnesses
called in the House of Representatives?'' A valid question. It
deserves a valid answer. That valid answer can be found not
simply in impeachment proceedings and the history thereof, but
also in the day-in/day-out proceedings in our Federal courts
and in our State courts. It can be found in the difference
between the body which has responsibility and jurisdiction for
charging a crime and the jurisdiction and responsibility of the
body that has responsibility for trying a crime, or an alleged
crime. The House of Representatives, though it is not in every
respect like a grand jury, operates much more like a grand jury
than a petit jury. As something akin to a grand jury, we had in
mind--and I know you have in mind--being very mindful and
knowledgeable about the difference in procedure between the
House and Senate on matters of impeachment, that frequently in
court cases presented to Federal grand juries--and I suspect
similarly to State grand juries--the evidence to the grand
jurors themselves is not presented through a long array, a
repetitive array of witnesses themselves--witnesses, that is,
with firsthand knowledge of each and every fact, which would
later be proved at trial. Rather, it is the more standard
procedure--certainly in Federal courts, with which I am more
familiar--for the Government to present its case to the grand
jury by way of summary witnesses. Normally, that would mean
case agents that have been working with the assistant U.S.
attorneys, or with the U.S. attorney, in gathering and
evaluating the evidence that will eventually be brought to bear
in the trial of the case.
If one were to be a fly on the wall of a Federal grand
jury, one would normally see witnesses for the Government that
would come in and discuss the general parameters and the
specific evidence of the case that they would present in court,
frequently summarizing the actual evidence that would be
presented in court by the witnesses themselves. That is the
standard operating procedure. That is not to say that there is
also not presented voluminous written evidence, documentary
evidence. That is frequently the case as well. Nor is that to
say that there are not, from time to time, cases presented to
Federal grand juries in which there are actual witnesses with
firsthand knowledge.
I will simply make a point of which we are all aware. I
think as we begin, or in anticipation of your process of
sifting through all of this procedure, this evidence, all of
this law, we should keep in mind that our job in the House was
to approach it necessarily very different from the way you
approach your job as jurors, as triers of fact. We, in fact,
presented to the House of Representatives, through the work on
our Judiciary Committee, a large volume of evidence presented
to us and through us to the House of Representatives as the
charging body, not the trier of fact body; that is, to
essentially summarize and discuss through the words, through
the opinions of the independent counsel, as akin to the chief
investigative officer in a grand jury in Federal district
court, through the words of many expert witnesses, as it were,
who placed all of that in context.
We did not want to usurp your duty, your responsibility
given to you by the Constitution as the trier of fact. We are
not that presumptuous. It is your responsibility, it is your
solemn duty to be the trier of fact. That is very different
from our solemn duty, which I believe the House performed
admirably in essentially reaching the conclusion that there is
probable cause to convict the President of perjury and
obstruction of justice. And we did so in a way that is mindful
and respectful of your responsibilities, that carried out our
responsibilities, and that is familiar to citizens all across
this land, because it is essentially the same process that
operates in Federal courts where you see also, as here, a very
clear distinction between the body that charges the crime, the
grand jury, and the body that tries the crime--that is, the
jury, and in this case it is the Senate of the United States of
America.
A second point that may very well come up, perhaps, in the
presentation of the defense by the President's learned counsel,
which although very familiar to those of us, as there are many
in this Chamber with a legal background, but which I think also
is important to keep in mind as you reflect on and later
deliberate on the evidence itself in this case, is that there
are, indeed, two types of evidence. In virtually every case,
whichever finds its way to a court of law and results in a
trial, both types of evidence are found, used, considered, and
form the basis, legitimately, for the eventual rendering of a
decision by a jury. Those two types of evidence are direct and
circumstantial.
Frequently--and I know this from actual experience--defense
lawyers will attack the Government's case, and one of the
standard attacks that they level against the Government's case
is that it is based on circumstantial evidence. You even hear
that by the folks out there today--not in this room--that are
saying, ``Oh, all we are seeing is circumstantial evidence, and
that is not as good as direct evidence.''
Now, to the layperson who is unfamiliar with the ways of
our laws, our courts, and the work of this great body, that may
have some currency, it may have some surface appeal. They may
say, ``Well, that commentator was right, and that White House
spokesman was right. If all they are doing is talking about
circumstantial evidence, they can't have a very strong case,
because if they had a strong case, they would have direct
evidence.''
Well, the fact of the matter is, it is a principle of long
and consistent standing in every Federal court in our land, and
I suspect every State court in our land, and as directed by
every Federal judge to every Federal jury taking evidence that
circumstantial evidence is to be, and shall not be afforded any
less weight than direct evidence. And triers of fact are
directed by judges in every case not to accord less weight to
one type of evidence as opposed to the other. That is, in the
words of one of my fellow managers, a smokescreen, a red
herring if somebody raises as a defense in a case--this case or
other cases--that the case is weakened somehow because there is
a reliance on circumstantial evidence and it is not found
solely on direct evidence.
That is a very important principle. I would appreciate your
indulgence in that small foray into some basic precepts that I
think all of us, certainly most of you included, need to keep
in mind.
Finally, there is one other sort of process argument that
one hears sort of floating around in the ether out there that I
think also is important for all of us to keep in mind; that is,
facts and the law do bear repeating--not endless, not
pointless, but appropriate repetition. Even today, even
yesterday in the first round of presentations to this body,
there was in fact repetition of certain facts, certain aspects
of the law. That is not presented to you simply to emphasize a
point, simply to make it appear stronger because we say it five
times instead of two. There is a very important reason for
appropriate repetition.
For example, in a case such as this where you have two sets
of laws alleged to have been violated--perjury laws and
obstruction of justice laws--each one of those has several
different elements. And, in addition to that, it is legitimate,
as presenters of facts in the law, for managers, for
prosecutors, or plaintiffs' attorneys to take a particular
fact, a particular note, and use it to illustrate several
different points. For example, one particular fact may provide
evidence of motive. It may also provide one of the substantive
elements of perjury or obstruction of justice, or it may go to
the state of mind of a declarant, a witness. It may provide
important evidence with regard to a course of conduct, prior
knowledge, and the list goes on.
That is why, Senators, frequently in the course of these
particular presentations--and, again, no different from the
course of presentation in Federal and, I suspect, State courts
throughout the land--in trials there necessarily is and should
be, in order to responsibly present all of the evidence in all
of its elements, certain repetition. Our job as managers is to
make sure we do not abuse that necessity and that we do not in
fact offer repetitive notion, repetitive references, without
having a very clear and specific purpose, such as I mentioned,
for that process.
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, I would respectfully ask that you
remember that, under the law of impeachment based on our
Constitution, proof beyond a reasonable doubt that the
President committed each and every element of one or more
violations of provisions of the Federal Criminal Code has never
been required to sustain a conviction in any prior impeachment
trial in the Senate. However, I can say confidently that I
speak for all House managers in relating to you our belief that
the record and the law applicable to these two articles of
impeachment clearly establish that President William Jefferson
Clinton did in fact violate several provisions of title 18 of
the United States Code--that is the criminal code--including
perjury, obstruction, and tampering with witnesses.
At this point, a lawyer would face, a fortiori--I will say
at this point that it therefore goes without saying that indeed
exists under every historical standard, every historical
benchmark which this Chamber has used--that there is more than
sufficient grounds on which you might face a conviction as to
both articles.
Beginning then in looking at the facts and the law, both of
which you have heard through the words and exhibits of my
colleagues and the evidence that you already have, let us look
first at the submission of the false affidavit in the Jones
case.
We believe the evidence presented clearly establishes that
on December 17, 1997, the President encouraged a witness in a
Federal civil rights action brought against him, that witness
being Monica Lewinsky, to execute a sworn affidavit in that
proceeding which he knew to be perjurious, false, and
misleading. As other managers have outlined, Monica Lewinsky
filed a sworn affidavit in the Jones case that denied the
relationship between her and the President. That affidavit was
false.
Ms. Lewinsky testified under oath before the grand jury
that the scheme to file this false affidavit was devised or
hatched during a telephone conversation with the President on
December 17, 1997, a call the President initiated to Ms.
Lewinsky at 2 or 2:30 a.m. ostensibly to give her the bad news
that Betty Currie's brother had been killed in a car accident
but apparently, since it consumed the vast majority of the time
of that conversation, more importantly, for the President to
tell Ms. Lewinsky her name was on the witness list filed in the
Jones case and to thereafter discuss during that conversation
the President's suggestion to her that she could file an
affidavit in the Jones case in order for the purpose of
avoiding having to testify in that case--not to cover up but in
order to avoid having to testify in an ongoing legal proceeding
in U.S. district court.
She testified that both she and the President understood
from their conversation they would continue their pattern of
covering up. She testified she knew that if she filed a
truthful affidavit the Jones lawyers would certainly have
deposed her in that case.
The testimony of Mr. Vernon Jordan confirms the President
knew Ms. Lewinsky planned to file a false affidavit. He stated
that, based on his conversations with the President, that the
President knew in advance that Ms. Lewinsky planned to execute
an affidavit denying their relationship and that he later
informed the President Ms. Lewinsky had signed in fact that
false affidavit.
For his part, the President denies asking Ms. Lewinsky to
execute a false affidavit. Instead, as he asserted in his
response to the House Judiciary Committee's request for
admission, he seeks to have you now believe he sought simply to
have Ms. Lewinsky execute an affidavit that will ``get her out
of having to testify.''
While being factually correct, this statement reflects a
legal impossibility. The President has admitted Ms. Lewinsky
was the woman with whom he indeed had an improper intimate
relationship while President. And he has admitted he was very
concerned over the great personal embarrassment and humiliation
he feared would have occurred if that relationship had been
revealed in the Jones case. Yet, he would have you believe he
cannot remember a call he made to that woman about that case
which occurred at 2 o'clock in the morning. His statement is
not credible, and the reason it is not credible is because it
is not true.
As Mr. Jordan's grand jury testimony corroborates, the
President knew what Ms. Lewinsky planned to allege in her
affidavit, yet the President took no action to stop her from
filing it. As you have heard in earlier presentations, the
President's lawyer, Mr. Robert Bennett, stated in court
directly to Judge Wright, when he presented the false
affidavit, ``There is absolutely no sex of any kind in any
manner, shape or form,'' and that the President was ``fully
aware of Ms. Lewinsky's affidavit.'' The President took no
action to correct his lawyer's misstatement.
As you have also heard, the President, in his grand jury
testimony, tried to disingenuously dissect the words of his
attorney to remove his conduct from further examination, even
though obviously, and by any reasonable interpretation or
inference of the definition given the President, his conduct
with Ms. Lewinsky was covered. And he disavowed knowledge of
his lawyer's representations by claiming he was not paying
attention. That canard has been most ably disposed of in prior
presentations both through the words of the managers and the
videotape presentations.
Later in the deposition, when Mr. Bennett read to the
President the portion of the affidavit in which Ms. Lewinsky
denies their relationship and asked him ``is that a true and
accurate statement as far as you know it,'' the President
answered, ``That is absolutely true.'' This statement is
neither credible nor true. It is perjury.
The inescapable conclusion from this evidence is that the
President has lied, and continues to lie, about the affidavit.
His continued false statements and denials about the affidavit
bolster the conclusion of our managers that, in fact, he was
part of the scheme to file the false affidavit. The evidence
supports Ms. Lewinsky's account that such a scheme did in fact
exist between them. The evidence and all reasonable inferences
drawn therefrom do not support the President's denial--
inferences, I respectfully add, that in your deliberations, as
in the deliberations of any jury, are to be and should be based
on common sense and deliberated in terms of the light of your
experiences in judging human behavior.
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.
Ms. Lewinsky knew full well her only hope of not having to
testify was to file an affidavit that did not truthfully
reflect her relationship with the President. The President also
knew that if she had filed a true affidavit, without any doubt,
it would have caused the Jones lawyers to seek her further
testimony--something both coconspirators desperately sought to
avoid.
In encouraging her to file an affidavit that would prevent
her from having to testify, President Clinton was, of
necessity, asking her to testify falsely in an official
proceeding. He was attempting to prevent, and in fact did
prevent, the plaintiff in that case from discovering facts
which may have had a bearing on her claim against the
President. His motive was improper in the language of the law,
that is, corrupt. And his actions did influence the testimony
of Ms. Lewinsky as a witness in the pending official proceeding
in U.S. district court.
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.
With regard to the issue of perjury before the grand jury
concerning the affidavit, we as managers would show that when
asked before the grand jury whether he had instructed Ms.
Lewinsky to file a truthful affidavit, President Clinton
testified, ``Did I hope she 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 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 would be to execute a
false 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.
Let us reflect and see also, members of the jury, how the
use of cover stories and the development thereof ties in the
facts and the law that constitute a basis on which you might
properly find a conviction on perjury and obstruction of
justice.
We, as managers, believe that the evidence presented to you
also establishes that on December 17 the President encouraged a
witness in a Federal civil rights action brought against him to
give perjurious, false and misleading testimony when called to
testify personally in that proceeding. This was, in essence,
the conspiracy--18 U.S.C. 371--to commit both obstruction and
perjury.
Throughout their relationship, the President and Ms.
Lewinsky, understandably, wished to keep it secret, and they
took steps to do that, steps that ultimately turned out to be
and constitute criminal acts. For some time, in fact until Ms.
Lewinsky testified under oath and under a grant of immunity,
their efforts were remarkably successful, all things
considered--all circumstances considered. Associates and
employees testified in support of the President's stories, and
even several Secret Service officers testified to the grand
jury that they understood Ms. Lewinsky to be in the Oval Office
to ``pick up papers.'' Yet, as Ms. Lewinsky testified, her
White House job never required her to deliver papers or obtain
the President's signature on any documents. It was all a sham.
It was all a cover story. It was all a conspiracy to obstruct.
Ms. Lewinsky testified later, after she left the White
House job to work at the Pentagon, that phase 2 of the coverup
went into effect. The two coconspirators began to use Ms.
Currie as a source of clearance into the White House. This was
so even though the purpose of Ms. Lewinsky's visits were almost
always to simply see the President. As my colleagues have told
you, on December 17, during that 2 a.m., or perhaps it was
2:30, telephone conversation placed by the President to Ms.
Lewinsky, he told her her name appeared on the witness list in
the Jones case. She testified that at some point in the
conversation the President told her, ``You know, you can always
say you were coming to see Betty or that you were bringing me
letters.'' Ms. Lewinsky testified that she understood this to
be ``really a reminder of things that they had discussed
before.'' She said it was instantly familiar to her. He knew,
or, ``I knew,'' she says--that is, Ms. Lewinsky knew--``exactly
what he meant.'' And so, I respectfully submit, do all of us
here know exactly what the President meant.
When the President, then, was questioned before the Federal
grand jury if he ever had said something like that to Ms.
Lewinsky, he admitted that, well, ``I might . . . have said
that. Because I certainly didn't want this to come out, if I
could help it. And I was concerned about that.''
A cover story--which this was--between two teenagers trying
to steal a date without their parents' knowledge is one thing.
Such would not constitute a crime. It would be something we
might even wink at, as long as it didn't happen too often.
However, we are not here dealing with two love-struck teenagers
trying to circumvent their parents' watchful eyes. We are
dealing here with the President of the United States of America
and a subservient employee concocting and implementing a scheme
that, while perhaps 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.
However--and this is critical in terms of establishing the
illegality or convictability of the President's actions--the
situation at the time of that early morning phone call from the
President to Ms. Lewinsky was very different from that facing
the President during any earlier discussions of a cover story.
Now, in early December 1997, Ms. Lewinsky had been
officially named as a witness in a pending judicial proceeding.
She was now under an obligation to give complete and truthful
testimony and he, the President, was under a legal obligation
at that time not to tamper with her or her possible testimony.
This is precisely where private lies become public obstruction.
This is, in fact, the bright line between childlike pranks and
deadly serious obstruction of our legal system. The President
and Ms. Lewinsky at that point entered the big leagues, and the
President, a highly skilled lawyer, knew it, which is why he
went to such lengths to continue the coverup for so many
months.
The President knew that if Ms. Lewinsky were to testify
that she only brought papers to the President or to see the
President's secretary, her testimony would have been neither
complete nor truthful. Yet, the President encouraged her to
give that untruthful testimony and, in so doing, he broke the
law of obstruction of justice. And, in lying about it, he
compounded the problem by breaking the law of perjury.
As Mr. Cannon made clear, with regard to section 1503, the
general Federal obstruction statute of the criminal code, a
person commits the crime of obstruction of justice when he
attempts to influence the due administration of justice, which
includes all aspects of any civil or criminal case, including
pretrial discovery.
Mr. Clinton's encouragement to Ms. Lewinsky to tell
something other than the truth certainly would have influenced
the discovery process in the Jones case. Courts have
consistently held that civil discovery is every bit a part of
the due administration of justice, protected by the obstruction
statutes, as any other aspect of any other civil or criminal
case. And, as Mr. Cannon also made clear with regard to section
1512 of the Federal Criminal Code, a person commits witness
tampering when he attempts to influence another person to give
false testimony in an official proceeding.
Mr. Clinton did encourage Ms. Lewinsky to give false
testimony about her reasons for being in the White House with
the President. By encouraging her to lie, the President
committed the crime of obstruction of justice under section
1503 and the crime of witness tampering under section 1512 of
the Federal Criminal Code.
You have also, Members of the Senate, heard about the
President's statements to Ms. Currie on January 18, and then
again on the 20th or 21st. The President spoke with her in what
was clearly, demonstrably, unavoidably, another potential
witness to be influenced in the civil rights case. The
President did this in this case by relating to Ms. Currie false
and misleading accounts of events about that case as to which
he was going to testify, had testified, and, again, with the
intent that his recitation of the so-called facts would in fact
corruptly influence her testimony.
As the managers have previously described to you, the
evidence in this case shows that on that Saturday, January 17,
only 2\1/2\ hours after the President had been deposed in the
Jones case, he called his secretary at home and asked her to
come to the White House the next day, a Sunday. She testified--
Ms. Currie, that is--testified this was very unusual. It was
rare for the President to call and ask her to come in on a
weekend, but of course she did--the next day, Sunday, January
18, 1998, at about 5 p.m.
She testified to the grand jury that during her meeting
with the President he said to her, ``There are several things
you may want to know.'' He then proceeded to ask her a number
of questions in succession. You were presented evidence of
these five statements by other managers. I will only emphasize
that it was at that time and in that way, in that manner, that
the President led Ms. Currie through a series of statements and
determinate questions to establish a set of facts describing
his relationship with Ms. Lewinsky at the White House that
supported his false testimony.
As you have heard, Ms. Currie stated under oath she
indicated her agreement with each of the President's
statements, even though she knew that the President and Ms.
Lewinsky had, in fact, been alone in the Oval Office and in the
President's study. Prosecutors frequently see this pattern. It
is not unknown to prosecutors, Federal or State. You frequently
see this pattern of agreeing to things that the person knows
are not true, where you have a dominant person suggesting
testimony to another person who is in a subordinate
relationship. This, I submit, is yet another bright line
between a private lie and public obstruction.
During the President's grand jury testimony he was asked
about his statements to Ms. Currie. He testified he was trying
to determine whether his recollection was accurate. As he put
it, ``I was trying to get the facts down. I was trying to
understand what the facts were.'' This fits the same pattern of
a classic obstruction of prosecution, in which a defendant
suggests a story to someone in the hopes that they will later
testify consistent with that earlier suggestion. Indeed, when
defendants in Federal courts defend against obstruction
prosecutions in those type cases, they frequently rely on the
very same defense the President raises here--that he was merely
and oh-so-innocently encouraging the other person to tell the
truth.
You may want to see, as an example of an unsuccessful
effort at such a defense, the case of United States v. O'Keefe,
a Fifth Circuit case from 1983. In that case, Mr. O'Keefe did
not ask someone to lie. He did not even say, ``I suggest you
lie.'' Rather, as is almost always the case in white-collar
obstruction prosecutions, his words, along with their setting
and their context, suggested a certain story--in that case as
well as this, a false story. Just as Mr. O'Keefe did not
expressly ask someone to lie, Mr. Clinton never asked someone
to lie. He didn't have to. He was too smart for that, and he
had witnesses who, at that time at least, were willing, ready,
and able to do his bidding. The President lied to the grand
jury when he made these statements mischaracterizing his
earlier statements to Ms. Currie, just as he tampered with her
as a likely witness 9 months earlier, in January.
The President's assertion--that he simply was trying to
understand what the facts were--lacks even colorable
credibility, when one considers that he had already testified.
It was obviously too late to try to recollect what the
``facts'' were. If in fact one accepts that, then he is
admitting he didn't testify to what the facts were under oath
at the deposition, because he didn't say, ``I don't know; I
have to ask Ms. Currie.'' He testified under oath as to what
the facts purportedly were. Then he would have us believe that
he had to, after the fact of the deposition, go back and find
out what the facts were from somebody else.
That is an argument that cannot be made with a straight
face.
In any event, Ms. Currie could not have told him what the
true facts were, because he alone knew what they were.
The defenses and explanations the President's defenders
raise to justify why the President would make factual
assertions to Ms. Currie about the circumstances of his
relationship with Ms. Lewinsky, right after his testimony, are
many. For example, one administration witness who appeared
before the House Judiciary Committee actually suggested that
such ``coaching'' is proper as a method whereby an attorney
``prepares'' a client or witness for testimony.
Of course, such a suggestion in this case would be
ludicrous. President Clinton obviously did not and could not
represent Ms. Currie as her attorney. Yet, it is this sort of
explanation, straining credulity, that illustrates the lengths
to which the President's defenders have gone to try to explain
away the obvious--that there was no legitimate reason why the
President made the statements to Ms. Currie after his grand
jury testimony, other than to ``suggest'' to her what her
testimony should be. In Federal criminal trials, defendants go
to jail for such obstruction. In the case before you, we submit
this clearly forms a proper basis on which to convict this
President of obstruction of justice for witness tampering and
subsequent perjury.
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.
It was not only likely Ms. Currie would be called, the
President's own testimony, deliberate testimony to the grand
jury, pretty much guaranteed that she would be called. He
wanted her called so she could then buttress his false
testimony. His actions clearly, we believe, violated both the
general obstruction statute and the witness tampering statute
in these particulars in this regard.
With regard to the obstruction regarding the subpoena for
the President's gifts to Ms. Lewinsky, let us look at the
merger of the facts and the law, as has been discussed. While
the witness tampering statute makes it a crime to attempt to
influence the testimony of a person, it also makes it a crime
to influence a person to withhold an object from an official
proceeding; in other words, to tamper with evidence. The facts
of this case, we as House managers believe, clearly show the
President corruptly engaged in, encouraged, or supported a
scheme with Monica Lewinsky and possibly others to conceal
evidence that had been subpoenaed lawfully in the Jones case.
On December 19, 1997, Ms. Lewinsky was served with a
subpoena in the Jones case requiring her to produce each and
every gift given to her by the President. Then, on December 28,
Ms. Lewinsky again met with the President in the Oval Office,
at which time they exchanged gifts. They also discussed the
fact that the lawyers in the Jones case had subpoenaed all the
President's gifts to Ms. Lewinsky and especially a hatpin. The
hatpin apparently had sentimental significance to both of them,
in that it was the very first gift the President gave to Ms.
Lewinsky. During that conversation, Ms. Lewinsky asked the
President whether she should put the gifts away outside her
house or give them to someone, maybe Betty.
At that time, according to Ms. Lewinsky's sworn testimony,
the President responded, ``Let me think about that.''
Apparently he did, because later that day, that very same day,
only a few hours after Ms. Lewinsky and the President had met
to discuss what to do with the gifts, Ms. Currie called Ms.
Lewinsky, setting in motion the great gift exchange.
According to Ms. Lewinsky, Ms. Currie said, ``I understand
that you have something to give me,'' or ``[t]he President said
you have something to give me.'' In her earlier proffer, or
offer of evidence, to the independent counsel, prior to her
testimony before the grand jury, Ms. Lewinsky said Ms. Currie
had said the President had told her--that is, Ms. Currie--that
Ms. Lewinsky wanted her to hold on to something for her.
After their conversation at the Oval Office, Ms. Currie
drove to Ms. Lewinsky's apartment for only the second time in
her life. There she picked up a box sealed with tape and on
which was written ``Please, do not throw away.'' Ms. Currie
then took the box, drove to her home, and placed the box under
her bed.
In her grand jury testimony, Ms. Currie testified that she
and Ms. Lewinsky did not discuss the content of the box, nor
did she open it when she got it to her home, but she knew--she
``understood'' what was in the box--that it contained the gifts
from the President to Ms. Lewinsky. In fact, Ms. Lewinsky
testified Ms. Currie was not at all confused, surprised, or
even interested when she handed the box over to her.
The legal impact, the legal import, of this is that there
is no question that if the gifts had actually been produced to
the Jones lawyers, they would have established a significant
relationship between the President and Ms. Lewinsky. Knowledge
of the gifts, at a minimum, would have caused the Jones lawyers
to inquire further as to the nature of the relationship between
the President and Ms. Lewinsky.
Her failure to turn over the gifts as required by the
lawful subpoena served on her was, in the words of the witness
tampering statute, the withholding of an object from an
official proceeding. We believe the evidence shows, clearly
establishes, that the President corruptly persuaded Ms.
Lewinsky to withhold these objects from the lawful proceedings
in the Jones case.
In his grand jury testimony, the President asserted he
encouraged Ms. Lewinsky to turn over the gifts. Ms. Lewinsky's
testimony directly contradicts that. Importantly, all other
evidence of subsequent acts corroborates her testimony, not the
President's. For one thing, the gifts were never turned over.
In fact, Ms. Lewinsky testified she was never under any
impression, from anything the President said, that she should
turn over the gifts to the attorneys for Ms. Jones. Quite the
opposite.
While the President asserts he never spoke about this
matter with Betty Currie, he would have us believe that his
personal and confidential secretary would, on a Sunday, drive
to the home of the woman with whom he was having an
inappropriate intimate relationship, take possession of a
sealed box which she believed to contain gifts given by the
President, hide the box under the bed in her home, never
question the person giving her the box, and never even mention
to the President she had received the box of gifts.
The President's position, as he would have you believe, is
not credible. It defies the evidence. It defies any reasonable
interpretation or inference from the evidence. It defies common
sense. And it stands in defiance of Federal law.
The only reasonable interpretation of the facts is that,
following the discussion between the President and Ms. Lewinsky
earlier in the day on December 28, the President decided Ms.
Lewinsky had actually come up with a pretty good suggestion:
The gifts should be put away outside of her home.
As jurors, you may reasonably presume, based on the
evidence and all reasonable inferences therefrom, along with
common sense, that it was the President who directed Ms. Currie
to call Ms. Lewinsky to tell her she understood she ``had
something for her.'' And that happened to be evidence under
lawful subpoena in a civil proceeding in a U.S. district court.
Ms. Currie would have no independent reason to even
consider such a course of action on her own. She had never,
other than one time in her life, ever driven to Ms. Lewinsky's
home. She did so on this Sunday not because she developed a
sudden hankering to do so or because she routinely visited
interns at their homes--she didn't--or because she had a
vision; she did it because the President would have asked her
to do it.
Now, the President further points out that Ms. Currie has
testified that Ms. Lewinsky called her to arrange to pick up
the gifts, rather than the other way around. In fact, although
Ms. Currie has testified inconsistently as to whether Ms.
Lewinsky called her or she called Ms. Lewinsky, she actually
deferred to Ms. Lewinsky's superior knowledge of the facts.
However, even if one were to accept, for purposes of
argument, that it was Ms. Lewinsky who initiated the call, the
President's avowal that he had no knowledge of or involvement
with the hiding or the transfer of the gifts is still not
plausible. It is totally unreasonable to presume that the
private secretary to the President of the United States would
drop what she was doing, travel to the home of a former intern,
pick up a box, and hide it in her home simply because the
former intern demanded that she do so. All of this had to have
been done--reasonably, plausibly, credibly was done--because of
communication directed and an understanding between the
President and his personal secretary.
There is one more point on this. Ms. Lewinsky testified she
met with the President for 45 minutes on December 28, at which
time they discussed the fact that she had been subpoenaed,
along with the need to conceal the gifts. The President's
testimony directly conflicts with hers on this point.
First, the evidence, however, establishes that his
professed inability to remember whether she and the gifts had
been subpoenaed is unbelievable and false.
Please keep in mind when evaluating the circumstantial
evidence to determine whether a false statement was made
intentionally, the most important evidence to consider is the
existence of a motive to lie. It is the calculated falsehood,
combined with a clear motive to lie, that leads, day in and day
out in Federal court proceedings, to the conclusion that false
statements were intentional.
Also, we urge you to bear in mind that the law will not
allow a person to testify, ``I don't recall,'' or, ``I'm not
sure,'' when such answers are unreasonable under the
circumstances.
Former U.S. Representative Patrick Swindall attempted this
course of action when he appeared before a Federal grand jury
in the Northern District of Georgia in 1988. His evasive and
false answers to the grand jury provided the basis for his
subsequent conviction.
Feigned forgetfulness or feigned assertions that grand jury
questions are ambiguous and therefore cannot be answered
cannot, and in fact in Federal proceedings do not, shield
defendants from criminal liability for perjury or impeding the
conduct of a Federal grand jury; nor should such efforts be
allowed to shield President Clinton from conviction on these
two articles of impeachment as to these facts.
The President, a man of considerable intelligence and
gifted with an exceptional memory--as somebody described, ``a
prodigious memory''--can and should be inferred to have clearly
understood what he was doing, as well as the logical and
reasonable consequences of his actions, as well as the
questions put to him by the independent counsel in the grand
jury questioning.
And he had a clear motive to falsely state to the grand
jury that he could not recall that he knew on December 28 that
Ms. Lewinsky had been subpoenaed and that the subpoena called
for her to produce the gifts, for to have acknowledged such
would have helped establish a motive on his part for
orchestrating the concealment of the gifts.
And as we have also seen and understand, there is no doubt
the President's statement of feigned forgetfulness was material
not only to the matters before the Jones case but to matters
subsequently before the grand jury.
Now, the President's counsel may very well argue the fact
that the President gave Ms. Lewinsky additional gifts on that
same day--that is, December 28--as proof of the President's
assertions that he didn't know there was anything wrong going
on here. Their argument, if they make it, cannot be sustained
in the face of so much evidence to the contrary. The evidence
in fact points to a much more plausible explanation. The
additional gifts given that day demonstrate the President's
continued confidence that Ms. Lewinsky would keep to their
earlier agreement to conceal their relationship.
It is also plausible that the additional gifts were
intended as a further gesture of affection by the President to
Ms. Lewinsky to help ensure she would not testify against him.
Such a fact pattern also finds its way to those of us who have
a prosecutorial background in Federal courts on a regular
basis.
We have heard about the job search and its relationship to
perjury and obstruction. Let me tie the facts related to job
search and the law applicable thereto together. We believe, as
managers, that the evidence shows that, beginning on or about
December 7, 1997, and continuing through and including January
14 of last year, the President intensified and succeeded in an
effort to secure job assistance for a witness in a Federal
civil rights case 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.
Monica Lewinsky is, if nothing else, a persistent witness.
After she was transferred out of the White House, and after
being rebuffed repeatedly by others to secure assistance from
the President in gaining a job that met her expectations and
wishes, she decided to change tack. She wrote directly to the
President, asked for, and received a meeting in which she asked
him to find her a job in New York.
The day before the President filed his answers to the
interrogatories in the Jones case, as Manager Gekas discussed,
the President asked Ms. Currie to set up a meeting for Ms.
Lewinsky with Mr. Vernon Jordan. Two days after he filed his
answers, in which he refused to answer whether he had ever had
any extramarital relationships in the context of his public
jobs, that meeting in fact occurred. But Mr. Jordan made no
particular effort to assist Ms. Lewinsky at that time. In fact,
as he later testified, he had no recollection of the meeting.
There was, of course, at that early stage, no urgency.
The situation, however, changed dramatically in early
December, 1997. On December 6, the President became aware that
Ms. Lewinsky had been named as a witness in the Jones case.
Early that day, she had thrown a tantrum at the White House
northwest gate when she was unable to meet with the President
when she wanted. Despite the President's initial anger over Ms.
Lewinsky's behavior and over the acts of some of the Secret
Service officers a mere 5 days later, Ms. Lewinsky, in fact,
secured a second meeting with Mr. Vernon Jordan. But this time,
unlike previously, this powerful Washington lawyer jumped for
the former intern. He immediately placed calls to three major
corporations on her behalf.
On December 11, Judge Wright ordered the President to
answer Paula Jones' interrogatories. On December 17, the
President suggested to Ms. Lewinsky she file the affidavit and
continue to use their cover stories in the event she was asked
about her relationship with the President. The next day she had
two interviews in New York City arranged by Mr. Jordan. On
December 22, Ms. Lewinsky met with an attorney at a meeting
arranged by Mr. Jordan. The following day she had another job
interview arranged by Mr. Jordan.
On January 7, Ms. Lewinsky signed the false affidavit and
proudly showed the executed copy to Mr. Jordan. The next day,
Ms. Lewinsky had an interview arranged by Mr. Jordan with
MacAndrews & Forbes in New York City, an interview that
apparently went poorly. To remedy this, she called Mr. Jordan
and so informed him. Mr. Jordan then called the CEO of
MacAndrews & Forbes, Mr. Ron Perelman to, in Mr. Jordan's
words, ``make things happen, if they could happen.'' After Mr.
Jordan's call to Mr. Perelman, Ms. Lewinsky was called and told
that she would be interviewed again the very next morning. That
following day she was reinterviewed and immediately offered a
job. She then called Mr. Jordan to tell him and he passed the
information on to Ms. Currie. ``Tell the President, mission
accomplished.''
Now, what are you as jurors entitled to conclude from all
of this as a matter of law and of fact? Until it became clear
that Ms. Lewinsky would be a witness in the Jones case, little
was done to help her with her job search. Once she was listed
as a witness, things changed dramatically and rapidly. Just
days after she is listed on the Jones witness list, she gets a
second meeting with one of the most influential men in
Washington. But, unlike their first meeting, Mr. Jordan now
makes three calls on her behalf to get her a job interview. A
week later the President proposed the affidavit. The next day,
Ms. Lewinsky has two job interviews in New York. A few days
later, Mr. Jordan arranges for an attorney to represent her.
The next day she has another job interview. Two weeks later she
signed the affidavit. The next day she has another interview.
``Mission accomplished.'' Obstruction accomplished. Another
potentially embarrassing witness in the bag.
Were Ms. Lewinsky to get a job and move to New York, this
would help the President substantially in two very important
ways. First, it would presumably create a happy and probably
compliant witness, one willing, if not eager, to support the
President's false testimony. Second, it would make Ms. Lewinsky
much more difficult, if not impossible, to reach as a witness
in the Jones case. In fact, this is precisely what the
President himself suggested to Ms. Lewinsky during their
December 28 meeting, according to her sworn testimony.
To put it plainly, but respectfully, if that is not
obstruction by witness tampering, one would be hard pressed to
find a fact pattern that was.
This aspect of the case against the President is extremely
important. She gets the job. And what did the President get?
The key affidavit to throw the Jones lawyers off the trail and
possibly a witness outside the practical reach of the
attorneys, much like the absent witnesses we have seen in large
numbers in the campaign financing investigations.
The President's efforts were designed to and did obstruct
justice and tamper with a witness. And his actions, we submit,
were criminal under both sections 1503 and 1512 of the Federal
Criminal Code.
The President's false statements to his senior aides. Here,
too, the facts and the law come together and would form the
basis, we respectfully submit, for a conviction on articles of
impeachment. All that needs to be shown to prove a violation of
the statute is that the defendant engaged in misleading conduct
with another person to influence their testimony. Misleading
conduct is not a term of art for which there is no definition.
It is specifically defined in the Federal Criminal Code as
section 1515. When you, as jurors, properly apply these
definitions to the terms of section 1512, the tampering
statute, and then turn your attention to the facts in this case
wherein the President repeatedly and deliberately gave false
explanations to aides he knew or should reasonably have known
would be witnesses in Federal judicial proceedings, the
conclusion he violated this statute is, we respectfully submit,
unavoidable. I point to one case previously mentioned, the
O'Keefe case as particularly, perhaps, applicable to
deliberations on this matter.
Finally, statements by the President and his lawyer
concerning the affidavit during the Jones deposition. The
obstruction statute may also be violated, as you know, by a
person who gives false testimony. In the Jones case, the
President allowed his attorney to make false and misleading
statements to a Federal judge. This part of the obstruction
scheme was accomplished by characterizing as true the false
affidavit filed by Ms. Lewinsky in order to prevent questioning
by the Jones lawyers, testimony which had already been deemed
relevant by the judge in that case. The President's lawyer, as
you have heard, objected to the innuendo of certain questions
asked of the President, and at that point during the deposition
pointed out that Ms. Lewinsky had signed an affidavit denying
the relationship with the President. He then made the famous
statement about there being no relationship in any way, shape
or form or kind.
Following this statement, Judge Wright warned Mr. Bennett
about making an assertion of fact in front of the witness--that
is, in front of the President--in which he replied:
I am not coaching the witness. In preparation of the
witness for this deposition, the witness is fully aware of
[the] affidavit, so I have not told him a single thing he
doesn't know.
The President's lawyer did not know what an understatement
that was.
Later, on September 30, 1998, long after the deposition and
after the full evidence of Ms. Lewinsky's relationship with the
President became public, Mr. Bennett wrote to Judge Wright to
inform her that she should not rely upon the statements he made
during the President's deposition because parts of the
affidavit were ``misleading and not true.'' ``Misleading and
not true.'' Sounds like perjury. Sounds like obstruction.
Which brings us full circle, full circle from a false
affidavit confirming earlier concocted cover stories, through a
web of obstruction, to a letter from a distinguished lawyer
forced to do what no lawyer wants to do, but every honorable
lawyer must do when confronted with clear evidence their client
has misled a court, and that is to correct a record of falsity
even to the detriment of their client.
What we have before us, Senators and Mr. Chief Justice, is
really not complex. Critically important, yes, but not
essentially complex. Virtually every Federal or State
prosecutor--and there are many such distinguished persons on
this jury--has prosecuted such cases of obstruction before in
their careers--perhaps repeatedly--involving patterns of
obstruction, compounded by subsequent coverup perjury. The
President's lawyers may very well try to weave a spell of
complexity over the facts of this case. They may nitpick over
the time of a call or parse a specific word or phrase of
testimony, much as the President has done. We urge you, the
distinguished jurors in this case, not to be fooled.
Mr. HARKIN addressed the Chair.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. HARKIN. Mr. Chief Justice, I object to the use and the
continued use of the word ``jurors'' when referring to the
Senate sitting as triers in a trial of the impeachment of the
President of the United States.
Mr. Chief Justice, I base my objection on the following:
First, article I, section 3, of the Constitution says the
Senate shall have the sole power to try all impeachments--not
the courts, but the Senate.
Article III of the Constitution says the trial of all
crimes, except in the cases of impeachment, shall be by jury--a
tremendous exculpatory clause when it comes to impeachments.
Next, Mr. Chief Justice, I base my objection on the
writings in ``The Federalist Papers,'' especially No. 65 by
Alexander Hamilton, in which he is outlining the reasons why
the framers of the Constitution gave the Senate the sole power
to try impeachments. I won't read it all, but I will read this
pertinent sentence:
There will be no jury to stand between the judges who are
to pronounce the sentence of the law and the party who is to
receive or suffer it.
Next, Mr. Chief Justice, I base my objection on the 26
rules of the Senate, adopted by the Senate, governing
impeachments. Nowhere in any of those 26 rules is the word
``juror'' or ``jury'' ever used.
Next, Mr. Chief Justice, I base my objection on the
tremendous differences between regular jurors and Senators
sitting as triers of an impeachment. Regular jurors, of course,
are chosen, to the maximum extent possible, with no knowledge
of the case. Not so when we try impeachments. Regular jurors
are not supposed to know each other. Not so here. Regular
jurors cannot overrule the judge. Not so here. Regular jurors
do not decide what evidence should be heard, the standards of
evidence, nor do they decide what witnesses shall be called.
Not so here. Regular jurors do not decide when a trial is to be
ended. Not so here.
Now, Mr. Chief Justice, it may seem a small point, but I
think a very important point. I think the framers of the
Constitution meant us, the Senate, to be something other than a
jury and not jurors. What we do here today does not just decide
the fate of one man. Since the Senate sits on impeachment so
rarely, and even more rarely on the impeachment of a President
of the United States, what we do here sets precedence. Future
generations will look back on this trial not just to find out
what happened, but to try to decide what principles governed
our actions. To leave the impression for future generations
that we somehow are jurors and acting as a jury----
Mr. GREGG. Mr. Chief Justice, I call for the regular order
and I ask, as a parliamentary point, whether it is appropriate
to argue what I understand is a statement as to the proper
reference relative to Members of the Senate. This is not a
motion. And if it is a motion, it is nondebatable, as I
understand it.
The CHIEF JUSTICE. Yes. I think you may state your
objection, certainly, but not argue. The Chair is of the view
that you may state the objection and some reason for it, but
not argue it on ad infinitum.
Mr. HARKIN. Mr. Chief Justice, I was stating the reason
because of the precedents that we set, and I do not believe it
would be a valid precedent to leave future generations that we
would be looked upon merely as jurors, but something other than
being a juror. That is why I raise the objection.
The CHIEF JUSTICE. The Chair is of the view that the
objection of the Senator from Iowa is well taken, that 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.
Mr. HARKIN. I thank the Chair.
Mr. Manager BARR. I thank the Court for his ruling. We urge
the distinguished Senators who are sitting as triers of fact in
this case not to be fooled. We urge you to use your common
sense, your reasoning, your varied and successful career
experiences, just as any trier of fact and law anywhere in
America might do. Just as other triers of fact and law do, so,
too, have each of you sworn to decide these momentous matters
impartially. Your oath to look to the law and to our
Constitution demands this of you. As this great body has done
on so many occasions in the course of our Nation's history, I
and all managers are confident you will neither shrink from nor
cast aside that duty.
Rather, I urge and fully anticipate that you will look to
the volume of facts and to the clear and fully applicable
statutes and conclude that William Jefferson Clinton, in fact
and under the law, violated his oath and violated the laws of
this land and convict him on both articles of impeachment. Even
though such a high burden--that is, proof of criminal
violations--is not strictly required of you under the law of
impeachment, in fact, such evidence is here. That higher burden
is met.
Perjury is here; obstruction is here in the facts and the
law which forms the basis for the articles of impeachment in
the House which we believe properly would form the basis for
conviction in the Senate. Perjury and obstruction, we
respectfully ask you to strike down these insidious cancers
that eat at the heart of our system of Government and laws.
Strike them down with the Constitution so they might not fester
as a gaping wound poisoning future generations of children,
poisoning our court system, and perhaps even future generations
of political leaders.
Just as Members of both Houses of Congress have
unfortunately over the years been convicted and removed from
office for perjury and obstruction, and just as Federal judges
have been removed from life tenure for perjury and obstruction,
so must a President; so sadly should this President.
Thank you, Mr. Chief Justice, and thank you, Members of the
U.S. Senate sitting here as jurors of fact and law in the trial
of President William Jefferson Clinton.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
------
ADJOURNMENT UNTIL 10 A.M. TOMORROW
Mr. LOTT. Mr. Chief Justice, I remind all who are
participants in these proceedings that we will begin at 10 a.m.
on Saturday, January 16, and we are expected to conclude
sometime between 3 p.m. and 3:30 p.m. I had earlier indicated
concluding as late as 5 p.m. I understand that we will conclude
between 3 p.m. and 3:30 p.m. Therefore, pursuant to the
previous consent agreement, I ask unanimous consent that the
Senate stand in adjournment under the previous order.
There being no objection at 5:10 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Saturday, January
16, 1999, at 10 a.m.
------
Saturday, January 16, 1999
[From the Congressional Record]
The Senate met at 10:01 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Gracious God, You have given us magnificent promises to
claim for today. You have told us that if we wait on You, we
will renew our strength. You have assured us that You will use
our minds to think clearly in response to Your inspiration.
Courage is offered, patience provided, and wisdom engendered.
In this quiet moment, grant the Senators Your power to
persevere, Your peace for equipoise, Your judgment for the
evaluation of the facts presented, and Your will to guide their
decisions. As You have blessed us with this day, we praise You
that You will show the way. Through our Lord and Saviour. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Mr. Chief Justice, it is my understanding that
the House managers intend to extend their presentation until
approximately 3 p.m., with a lunch break at approximately 12:40
or 12:45.
I remind all Senators to remain standing at their desks
each time the Chief Justice enters and departs the Chamber. We
want to maintain the very best decorum.
One other point. We had been scheduled to go from 10:05
straight through until 12:40, but we will probably take a very
short 10-minute break after the presentation by Manager Graham.
It will be very important that Members tend to business and
return promptly to the Chamber so that we can complete activity
as early as possible this afternoon.
I yield the floor, Mr. Chief Justice.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, the
managers for the House of Representatives have 15 hours 37
minutes remaining to make the presentation of their case. The
Senate will now hear you. The Presiding Officer recognizes Mr.
Manager Buyer.
Mr. Manager BUYER. I thank you, Mr. Chief Justice. I thank
the Senators, and the counsel for the President.
I am Steve Buyer, the House manager from the Fifth District
of Indiana. I thank all of you for your attention the past
several days. It has not been easy for the House managers to
argue from a dry record. I ask for your patience. The House
managers are prepared to call witnesses and offer to develop
the evidence as the trial proceeds.
This morning, the managers on the part of the House are
going to present why the offenses you have been hearing over
the course of the last several days require the President's
removal from office. I will discuss why the offenses attack the
judicial system which is a core function of the Government, and
how perjury and obstruction of justice are not private acts.
These are public crimes and therefore quintessential
impeachable offenses, for the President's premeditated assault
on the administration of justice must be interpreted as a
threat to our system of government.
I will be followed by Mr. Manager Graham of South Carolina
who will discuss the precedents in impeachment cases, and then
he will be followed by Mr. Manager Canady. He will discuss how
the felonies constitute high crimes and misdemeanors as
envisioned by the Founding Fathers and why they warrant his
removal from office.
While this is day 3 of our presentation, it is important
for the Senate to be fully informed as to the facts, the law
and the consequences. Please indulge me for a quick reiteration
of the facts.
On May 27, 1997, nine Justices of the Supreme Court of the
United States unanimously ruled that Ms. Jones could pursue her
Federal civil rights actions against William Jefferson Clinton.
On December 11, 1997, U.S. District Court Judge Susan Webber
Wright ordered President Clinton to provide Ms. Jones with
answers to certain routine questions relevant to the lawsuit.
Acting under the authority of these court orders, Ms. Jones
exercised her rights, rights every litigant has under our
system of justice. She sought answers from President Clinton to
help prove her case against him, just as President Clinton
sought and received answers from her. President Clinton used
numerous means, then, to prevent her from getting truthful
answers.
On December 17, 1997, President Clinton encouraged a
witness to file a false affidavit in the case and to testify
falsely if she were called to testify in this case. Why?
Because her truthful testimony would have helped Ms. Jones and
hurt his case.
On December 23, 1997, he provided under oath false written
answers to Ms. Jones' questions. On December 18, 1997,
President Clinton began an effort to get the witnesses to
conceal evidence that would have helped Ms. Jones. Throughout
this period, he intensified efforts to provide the witness with
help in getting a job to ensure that she carried out his
designs.
On January 17, 1998, President Clinton provided under oath
numerous false answers to Ms. Jones' questions during that
deposition in the civil case. In the days immediately following
the deposition, President Clinton provided a false and
misleading account to another witness, his secretary, Betty
Currie, in hopes that she would substantiate the false
testimony he gave in the deposition.
All of these unlawful actions denied Ms. Jones her rights
as a litigant, subverted the fundamental truth-seeking function
of the U.S. District Court for the Eastern District of
Arkansas, and violated President Clinton's constitutional oath
to ``preserve, protect, and defend the Constitution of the
United States.'' And, further, it violated his constitutional
duty to ``take care that the laws be faithfully executed.''
Beginning shortly after his deposition, President Clinton
became aware that the Federal grand jury empaneled by the U.S.
District Court for the District of Columbia was investigating
his unlawful actions before and during his civil deposition.
President Clinton made numerous false statements to potential
grand jury witnesses in hopes that they would repeat these
statements to the grand jury.
On August 17, 1998, President Clinton appeared before the
grand jury by video under oath and he provided numerous false
answers to questions asked. These actions impeded the grand
jury's investigation; it subverted the fundamental truth-
seeking function of the U.S. District Court for the District of
Columbia, and they also violated President Clinton's
constitutional oath to ``preserve, protect, and defend the
Constitution of the United States'' and his constitutional duty
as the Chief Executive Officer to ``take care that the laws be
faithfully executed.''
You will hear next week, perhaps, from the President's
lawyers that the offenses charged by the House are not
impeachable; in other words, that even if the allegations as
set forth in the articles of impeachment are true, so what?
See, the House managers have begun to refer to this as the ``so
what'' defense. I am not offended by the ``so what'' defense,
because if that is all you have, then try it. You see, there
are only a few basic ways that you can actually defend a case.
You can defend a case on the facts, you can defend a case on
the law, you can defend a case on the facts and the law.
We hear in this case--we hear very often--that the facts
are indefensible. And you also hear that if you are not going
to call witnesses on the facts, then I guess you better argue
on the law. So, then, what is the argument on the law? What you
do, then, in the defending of a case, is you argue procedure,
you attack the prosecutor, you attempt to confuse those who sit
in judgment on the laws so you don't follow your precedent. You
go out and obtain, from your political allies and friends in
the academic world, signatures on a letter saying that the
offenses as alleged in the articles of impeachment do not rise
to the level of an impeachable offense. This ``rise to the
level'' has somehow become the legal cliche of this case. You
have all so often heard it and some have even spoken it.
The House managers chose not to go out into the academic
world and obtain signatures on our own letter that would have
said why the offenses are impeachable. We then would have had
this war of dueling academics. They have a letter of 400
signatures. We get a letter of 400 signatures. They add 500 to
it; now they have 900. We go out and get 1,000. We chose not to
do that. Do you know why? Because the House managers have the
precedents of the Senate on our side. We have the precedents of
the Senate. Mr. Manager Graham will discuss those precedents.
If I am prosecuting a defendant for perjury and obstruction
of justice in White County Superior Court before Judge Bob
Mrzlack in Monticello, IN, and I have this perjury and
obstruction of justice case on a Thursday, and I know that the
judge has three other cases--he has a case on Monday, he has a
case on Tuesday, and he has a case on Wednesday--I am going to
watch what the judge is going to do because I am curious with
regard to the precedent.
So, on Monday of that week Judge Mrzlack tries a case of a
public official for perjury, and I watch what he does. He
convicts him for perjury. On Tuesday, he tries a public
official for obstruction of justice, and he convicts him. On
Wednesday, Judge Mrzlack tries a public official for grand jury
perjury, and he convicts him. My case now comes up on Thursday
for a public official for obstruction of justice and grand jury
perjury and perjury on top of perjury. I would say, based on
the precedents, it is not looking good for the defendant whom I
am about to prosecute.
The White House lawyers are hoping that those of you in
this Chamber who have voted to remove Federal judges for
similar offenses in the past have a feigned memory. And if you
don't have a feigned memory, then we will try to confuse you--
they will attempt to confuse you on the law.
So, when I hear the ``so what,'' it is the position of the
House that what the President did does matter; that by his
actions, the President did commit high crimes and misdemeanors.
The House is prepared to establish that the President, William
Jefferson Clinton, willfully and repeatedly violated the rule
of law and abused the trust placed upon him by the American
people.
Now let me address how the offenses charged in the articles
of impeachment attack the judicial system. The offenses as
charged in the articles of impeachment against our system of
government are the core of the concept of high crimes and
misdemeanors. Perjury and obstruction of justice are,
therefore, quintessential impeachable offenses. Indeed, it is
precisely their public nature that makes them offenses. Acts
that are not crimes when committed outside the judicial realm
become crimes when they enter the judicial realm. Lying to
one's spouse about an extramarital affair is not a crime; it is
a private matter. But telling that same lie under oath before a
Federal judge, as a defendant in a civil rights sexual
harassment lawsuit, is a crime against the state and is
therefore a public matter.
Hiding gifts given to conceal the affair is not a crime; it
is a private matter. But when those gifts are the subject of a
court-ordered subpoena in a sexual harassment lawsuit, the act
of hiding the gifts becomes a crime against the state called
obstruction of justice and is, therefore, a public matter. Our
law has consistently recognized that perjury subverts the
judicial process. It strikes at our Nation's most fundamental
value--the rule of law.
In ``Commentaries on the Laws of England,'' Sir William
Blackstone differentiated between crimes that ``more directly
infringe the rights of a public or commonwealth taken in its
collective capacity, and those which, in a more peculiar
manner, injure individuals or private subjects.'' This book was
widely recognized by the Founding Fathers, such as James
Madison. He described Blackstone's work at the time as ``a book
which is in every man's hand.'' Blackstone's private category
contained crimes such as murder, burglary, and arson. In the
public category, however, he cataloged crimes that could be
understood as an assault upon the state. Within a subcategory
denominated ``offenses against public justice,'' Blackstone
included the crimes of perjury and bribery. In fact, in his
catalog of public justice offenses, Blackstone placed perjury
and bribery side by side.
When you read the impeachment clause in the Constitution,
article II, section 4, ``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,'' what did they mean
when they thought ``other high crimes''? I submit to you that
perjury and obstruction of justice fits in this category of
``other high crimes.'' Perjury and bribery are side by side.
If, when William Jefferson Clinton sat at the table in the
civil deposition in the Jones v. Clinton case and, as alleged
in the record, perjured himself, speaking hypothetically, if he
had then offered Judge Susan Webber Wright a cash bribe, there
would be no question in this body what you must do. But what I
am saying unto all of you is that there is no difference here,
and that is the pain of this case. There is no difference
between a cash bribe or sitting before a Federal judge and
perjuring one's self, whether it be in the underlying civil
deposition or, in fact, in the grand jury perjury. Perjury and
bribery are side by side. Mr. Manager Canady will develop that
further.
The Constitution also recognizes that truth-telling under
oath is central to the maintenance of our Republic.
We are all familiar with the Constitution. This is in its
handwritten glory. The founders took such pride in the oath
that it is mentioned in the Constitution on five separate
occasions, not the least of which is the President's own oath
to defend the Constitution. Article I, section 3, sets forth
the requirement that the Senate be under oath when trying cases
of impeachment, and I witnessed as that occurred. Article II,
section 1, specifically prescribes the oath which must be taken
before our President enters on the execution of his office.
The right against self-incrimination under the Constitution
derives in some measure from the Republic's interest in
preserving the truth-telling oath. Forced testimony is
forbidden because it might lead many to violate their most
solemn obligations and, over time, weaken the essential civic
norm of the fidelity to that oath--fidelity.
The framers took the significance of the oath very, very
seriously. The crime of perjury was among the few offenses that
the first Congress outlawed by statute as they met, and that
affirms the framers' view of the seriousness. In 1790, in a
statute entitled ``An Act for the Punishment of Certain Crimes
Against the United States,'' Congress made the crime of perjury
punishable by imprisonment of up to 3 years, a fine of up to
$800, disqualification from giving future testimony and
``stand[ing] in the pillory for one hour.'' Today, we don't
force individuals convicted of perjury to stand in the pillory
for up to 1 hour.
Today, perjury is punishable by up to 5 years imprisonment
in a Federal penitentiary if you perjure yourself in a Federal
jurisdiction. Likewise, the Supreme Court has repeatedly noted
the extent to which perjury subverts the judicial process and,
thus, the rule of law. For example, in 1976, in a case of
United States v. Mandujano, the Supreme Court emphasized:
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. Hence, Congress has made the giving of
false answers a criminal act punishable by severe penalties. In
no other way can criminal conduct be flushed into the open
where law can deal with it.
Moreover, it is obvious that any testimony given to a grand
jury must be truthful, for the grand jury process is, in fact,
the truth-seeking process of our criminal justice system. As
the Supreme Court stated in 1911 in the case of Glickstein v.
the United States:
It cannot be conceived that there is power to compel the
giving of testimony where no right exists to require that the
testimony shall be given under such circumstances and
safeguards as to compel it to be truthful.
Indeed, giving false material testimony to a grand jury,
perjuring one's self, totally destroys the value of one's
testimony and interferes with the ability of a grand jury to
accomplish its mission which, again, is to find the truth.
Perjury before a grand jury is a crime against our system of
Government and the American people, and in the case before us,
this is a case of perjury upon perjury.
Before the grand jury, President Clinton testified that the
testimony that he gave in the underlying civil case of Jones v.
Clinton in a civil deposition, that it was truthful. We submit
that that is a lie. So what we have is perjury on perjury.
You may hear the President's lawyers remark that the view
of the founders is quaint, not really applicable to these
settings today. Let's look at a few very recent examples to see
if the view of the seriousness of telling the truth under oath,
as envisioned by the Founding Fathers, has changed any here
today.
In the case of the United States v. Landi in the Eastern
District of Virginia in 1997, the defendant was convicted on
two counts of perjury: one for lying in a declaration she made
during a civil forfeiture case, and the other for lying to the
grand jury in a related criminal investigation. Here is what
the judge said in this case:
. . . the defendant committed perjury on two separate
occasions. There can be no question of it being done by
mistake, and perjury is perhaps one of the most serious
offenses that can be committed against the court itself. And
the court does not believe that it's appropriate to consider
probation in the case of somebody who's been convicted of
perjury.
In a second case, United States v. Vincent Bono in the
District of New Hampshire in 1998, the defendant was found
guilty of lying before a grand jury in trying to cover his
stepson's involvement in a robbery that the grand jury was
investigating. Here is what the judge had to say about lying
before a grand jury:
As a [matter of policy], they--
Meaning Congress--
they don't 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.
In another case in United States v. Ronald Blackley in the
District of Columbia in 1998, the defendant was the former
chief of staff to the Secretary of the U.S. Department of
Agriculture. The defendant was found guilty at trial on three
counts of making false statements to the grand jury in
connection with his official duties. Here is what the judge had
to say in this case:
In my view, providing a false statement under oath is a
serious offense. The fact that the proceeding is civil or
administrative does not make the crime less serious. We cannot
fairly administer any kind of system of justice in this country
if we do not penalize those who lie under oath.
The defendant stands before me as a high-ranking Government
official convicted of making false statements under oath. This
is such a serious crime that it demands an even longer term of
imprisonment in this court's view. This court has a duty to
send a message to other high-level Government officials that
there is a severe penalty to be paid for providing false
information under oath. There is a strong reason to deter such
conduct and to dispel all of the nonsense that's being publicly
discussed and debated about the seriousness of lying under oath
by Government officials. A democracy like ours depends on
people having trust in our Government and its officials.
There are many other cases, and you can go to your Lexis
and Westlaw and research them. These three cases make it very
clear that lying under oath is as serious today in the 106th
Congress as it was in 1790 in the First Congress when it
enacted the perjury statute. The First Congress recognized the
seriousness of perjury and its attack on the judicial system.
Now I would like to discuss article II, which is the
obstruction of justice, and how it is an attack on our judicial
system. In either a criminal or a civil case, obstruction
undermines the judicial system's ability to vindicate legal
rights. If it is allowed to go unchecked, then the system will
become a farce and ultimately a test of which side is better at
using underhanded methods. Accordingly, Federal courts have
called the Federal obstruction of justice statute ``one of the
most important laws ever adopted'' in that it prevents the
``miscarriage of justice.''
This is ``Black's Law Dictionary.'' ``Black's Law
Dictionary'' defines ``obstruction of justice'' as ``[i]mpeding
or obstructing those who seek justice in a court, or those who
have duties or powers of administering justice therein.'' It is
very clear. Not only is obstruction of justice, on its own, a
crime in the Federal Code, but, in addition, the Federal
Sentencing Guidelines--the Federal Sentencing Guidelines--
increase the sentence of a convicted defendant who has
``willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the investigation,
prosecution, or sentencing'' of his offense. The commentary on
the Guidelines specifically lists as examples of obstruction
actions the House alleges that President Clinton has committed,
including ``committing, suborning, or attempting to suborn
perjury'' and ``destroying or concealing or directing or
procuring another person to destroy or conceal evidence that is
material to an official investigation or judicial proceeding. .
. .''
Yesterday, you learned from Mr. Manager McCollum of
Florida, when he discussed that that perjury and obstruction of
justice is punished more severely in the Federal Sentencing
Guidelines than bribery. As I stated earlier, Blackstone put
bribery and perjury side by side.
At a hearing on the background and history of impeachment
as part of the House impeachment inquiry, we were privileged to
have the testimony of Judge Griffin Bell, an individual who has
highly distinguished himself in public service. Judge Bell was
appointed to the Federal bench by President John Kennedy, and
he served as the U.S. Attorney General under President Carter.
Judge Bell said that, ``I have thought about this a great deal.
This is a serious matter. Trifling with the Federal courts is
serious. And I guess I am biased because I used to be a Federal
judge. But I cannot imagine that it wouldn't be a serious crime
to lie in a Federal grand jury or to lie before a Federal
judge, and that is where I come down.''
Judge Bell went on to say, ``And all the civil rights cases
that I was in in the South depended on the integrity of the
Federal court and the Federal court orders and people telling
the truth and fairness. Truth and fairness are the two
essential elements in a justice system, and all of these
statutes I mentioned, perjury, tampering with a witness,
obstruction of justice, all deal in the interests 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. We don't have a
system.''
As you can see, according to Judge Bell, ``truth and
fairness'' are the two cornerstones of our judicial system.
President Clinton violated both of these bedrock principles.
Finally, Judge Bell spoke to the issue, if a President ever
was convicted of a felony. Judge Bell stated:
If the President were indicted and convicted of a felony,
such as perjury or obstruction of justice or witness tampering,
before impeachment proceedings began, would anyone argue that
he should continue to be President? I don't think so. If the
President were subsequently indicted and convicted of a felony,
which [Judge Bell believes] the Constitution clearly allows,
[he went on to say] would anyone argue that he should continue
to be President? I don't think so.
He stated this:
A President cannot faithfully execute the laws if he
himself is breaking them.
Judge Bell hit it right on the head. Judge Bell said:
A President cannot faithfully execute the laws if he
himself is breaking them. The statutes against perjury,
obstruction of justice and witness tampering rest on
vouchsafing the element of truth in judicial proceedings--civil
and criminal--and particularly in the grand jury. Allegations
of this kind are grave indeed.
To borrow the words of constitutional scholar Charles J.
Cooper:
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, whether or not committed in connection with
the exercise of official government powers.
I believe all of you should have these charts at your
table.
In a society governed by the rule of law, perjury and
obstruction of justice simply cannot be tolerated because these
crimes subvert the very judicial processes on which the rule of
law so vitally depends.
It is no exaggeration to say that our Constitution and the
American people entrust to the President singular
responsibility for the enforcing of the rule of law. Perjury
and obstruction of justice strike at the heart of the rule of
law. A President who has committed these crimes has plainly and
directly violated the most important executive duty. The core
of the President's constitutional responsibilities is his duty
to ``take Care that the Laws be faithfully executed.'' And
because perjury and obstruction of justice strike at the rule
of law itself, it is difficult to imagine crimes that more
clearly or directly violate this core Presidential
constitutional duty.
When President Clinton had the opportunity to personally
uphold the rule of law, to uphold the truth-seeking function of
the courts, to uphold the fairness in a judicial proceeding, he
failed. Far from taking care that the laws be faithfully
executed, if a President is guilty of perjury and obstruction
of justice, he has himself faithlessly subverted the very law
that the rest of us are called upon to obey.
You may hear arguments that perjury and obstruction don't
really have much consequence in this case because it was a
private matter and, therefore, not really a serious offense. I
would like to arm you with the facts. The courts do not
trivialize perjury and obstruction of justice.
According to the U.S. Sentencing Commission, in 1997, 182
Americans were sentenced in Federal court for committing
perjury. Also in 1997, 144 Americans were sentenced in Federal
court for obstruction and witness tampering.
In State jurisdictions all across the country take the
matter very seriously. I have chosen one State, the State of
California, which brought 4,318 perjury prosecutions in 1997.
There are now at least 115 persons serving sentences for
perjury in Federal prisons. Where is the fairness to these
Americans if they stay in jail and the President stays in the
Oval Office?
If the allegations in the independent counsel's referral
were made against a sitting Federal judge, would not the Senate
convict? If William Jefferson Clinton were a sitting judge
instead of the President, would not the Senate convict? While
my colleague, Mr. Manager Graham, will look into this further,
let's look briefly at precedent for the moment. When we bring
up the issues regarding the impeachment of former Federal
judges Mr. Claiborne and Mr. Nixon, one standard was used: high
crimes and misdemeanors. The Senate said the one standard that
applies to the President and Vice President will also apply to
these Federal judges and other civil officers.
In the defense of Judges Claiborne and Nixon, the defense
lawyers at the time in the trial in the Senate argued that
Federal judges should be treated differently from the
President, that they could not be impeached for private
misbehavior because it was extrajudicial. The Senate rejected
that proposition as incompatible with common sense and the
orderly conduct of government. You rejected that argument, the
very same argument that we are about to hear, perhaps, from the
White House defense team. And I believe this Senate will uphold
its precedent, the precedent that Federal judges and the
President should be treated by the same standard--impeachment
for high crimes and misdemeanors.
Also, do not be tempted to believe the argument that lying
under oath about sex doesn't matter, that it is private. I
covered that earlier, but I want to bring it to your attention
as some of the House managers did yesterday regarding American
law. It makes rape a crime, domestic violence a crime, sexual
harassment a civil rights violation, libel, a compensable
offense. Without the protections of perjury and obstruction,
none of the rights of the victims of such cases could be
vindicated. That is why the courts take these matters so
seriously.
If the President's lawyers try to tell you that this case
is simply about an illicit affair, I believe that it demeans
our civil rights laws. If, indeed, the President is successful
in trying to make everyone believe that this case is only about
an illicit affair, what will the message be from those in this
hallowed body who have in the past been passionate advocates of
our civil rights laws, whether it be by race, gender, religion,
or disability? If the evidence-gathering process is unimportant
in Federal civil rights sexual harassment lawsuits--remember,
that was the underlying basis of this case--what message does
that send to women in America?
There are some important questions we need to ask. Are
sexual harassment lawsuits, which were designed to vindicate
legitimate and serious civil rights grievances of women across
America, now somewhat less important than other civil rights?
Which of our civil rights laws will fall next? Will we soon
decide that the evidence-gathering process is unimportant with
respect to vindicating the rights of the disabled under the
Americans with Disabilities Act? Will the evidence-gathering
process become unimportant with respect to vindicating the
voting rights of those discriminated against based on race or
national origin? Who will tell the hundreds of Federal judges
across the Nation that the evidence-gathering process in these
cases is now unimportant?
Consider postal worker Diane Parker who was convicted of
perjury and sentenced to 13 months in prison for making a false
material declaration during the discovery deposition in a
sexual harassment lawsuit. Judge Lacey Collier said: ``One of
the most troubling things in our society today is people who
raise their hand, take the oath to tell the truth, and then
fail to do that. . . . This, I hope, is sufficient punishment
for you,'' the judge stated. The judge went on to say, ``But
more importantly, I hope that it is a deterrence to others. So
your story can be taken far and wide to demonstrate to others
the seriousness of the responsibility of telling the truth in
court proceedings.''
The Senate must now determine whether it is acceptable or
whether it is appropriate to set a precedent to have an
individual serve as President of the United States when that
individual has committed, is alleged to have committed, serious
offenses against our system of government while holding that
office.
While we have been discussing how perjury and obstruction
of justice are attacks on our judicial system, we must
recognize how the judicial system is a core function of the
government. When Mr. Manager Henry Hyde speaks of the rule of
law protecting us from the knock on the door at 3 a.m., what,
exactly, was he referring to? In totalitarian societies, rulers
may drag the ruled off to prison at any time for any reason.
Our system differs because we require our leaders to go through
a judicial procedure before they put someone in prison or
otherwise violate their individual rights. The President's
offenses assault the administration of this judicial procedure.
As such, they constitute an assault on the core function of the
government and repudiate our most basic social contract. A core
function of the government derives its role from the social
contract that our civilized society has under which the
fundamental exchange of rights takes place between those of us
as individuals and unto the government.
We give up our individual rights to exercise brute force to
settle our personal disputes. That is a situation where chaos
reigns and the strongest most often prevails. Instead, we
submit to the power delegated to the State under which the
individual then submits to the governmental processes as part
of the social contract. Indeed, when conflict arises in our
society, we as individuals are compelled via the social
contract to take disputes to our third branch of government--
the courts. The judicial branch then peacefully decides which
party is entitled to judgment in their favor after a full
presentation of the truthful evidence.
Implicit in the social contract that we enter as a
civilized society is the principle that the weak are equally
entitled as the strong to equal justice under the law. Despite
the tumbling tides of politics, ours is a government of laws,
not of men. It was the inspired vision of our Founding Fathers
that the judicial, legislative, and executive branch of
Government would work together to preserve the rule of law. The
U.S. Constitution requires the judicial branch to apply the law
equally and fairly to both the weak and the strong.
Once we as a society--and particularly our leaders--no
longer submit to the social contract and no longer pay
deference to the third branch of Government, which is equally
as important as the legislative and executive branches of
Government, we then begin to erode the rule of law and begin to
erode the social contract of the great American experiment.
That, I believe, is why Judge Bell stated, ``A President
cannot faithfully execute the laws if he himself is breaking
them.''
The administration of justice is a core function of the
Government precisely because of the importance we place on the
fair resolution of disputes and on whom and for how long a
person will be denied liberty for violating our criminal laws.
Any assault on the administration of justice must be
interpreted as a threat to our system of Government. Our
President, who is our chief executive and chief law enforcement
officer, and who alone is delegated the task under our
Constitution to ``take care that the laws be faithfully
executed,'' cannot and must not be permitted to engage in such
an assault on the administration of justice.
The articles of impeachment adopted by the House of
Representatives establish an abuse of public trust and a
betrayal of the social contract in that the President is
alleged to have repeatedly placed his personal interests above
the public interest and violated his constitutional duties. For
if he is allowed to escape conviction by the Senate, we would
allow the President to set the example for lawlessness. We
would allow our President to serve as an example of the erosion
of the concept of the social contract embraced and embodied in
our Constitution. I don't believe the Senate will allow that to
happen.
As you undertake your examination of the facts, the law,
and your precedents, the Senate must weigh carefully its
judgment, for the consequences are deeply profound, not for the
moment but for the ages. Should the Senate choose to acquit, it
must be prepared to accept a lower standard, a bad precedent,
and a double standard. However, should the Senate choose to
convict, it would be reinforcing high standards for high
office, maintaining existing precedents, and upholding the
principle of equal justice under the law.
I think it is important to pause here and reflect upon the
constitutional duties of the President of the United States. I
agree with the defense argument that this has not been alleged
as a dereliction of the President's exercise of executive
powers. So let me talk about his executive duties.
The President is reposed with a special trust by the
American people. The President is a physical embodiment of
America and the hope and freedom for which she stands. When the
President goes abroad, he is honored as the head of a sovereign
nation; our Nation is acknowledged, not just the individual who
occupies the Office of the Presidency. When he walks into a
room and receives a standing ovation, the ovation is not that
of the individual, it is for the Nation he represents.
The President has a constitutional role as Commander in
Chief. The President plays a unique and indispensable role in
the chain of command. In Federalist 74, Alexander Hamilton
stated:
Of all the cares or concerns of government, the direction
of war most peculiarly demands those qualities, which
distinguish the exercise of power by a single hand.
It is universally agreed that the President, in his role as
Commander in Chief, is not an actual member of the military.
However, as the ``single hand'' that guides the actions of the
armed services, it is incumbent that the President exhibit
sound, responsible leadership and set a proper example when
acting as Commander in Chief.
That leadership is also at the core of the issue before us.
In order to be an effective leader, an effective military
leader, the President must exhibit the traits that inspire
those who must risk their lives at his command. These traits
include honor, integrity, and accountability.
Admiral Thomas Moorer, a former Chairman of the Joint
Chiefs of Staff, submitted testimony to the House impeachment
inquiry. Admiral Moorer stated it this way:
Military leaders also serve as role models for honorable
and virtuous conduct.
Veracity and truthfulness are important components of a
leader's character. In order to have the trust of their
subordinates, military leaders must have honor and be truthful
in all things. That trust, that bond between the leaders and
the led, is an essential element of any successful military
organization.
The President's own self-inflicted wounds have called his
credibility into question. While a President's decisions are
always critiqued, a President receives the benefit of the doubt
in the decisionmaking process that he always places the
interests of the Nation above his own. But by William Jefferson
Clinton's present diminished veracity, he has now forfeited
that benefit and has invited doubt into the decisionmaking
process.
The lack of trust in the President's motives, his veracity
and his judgment is inherently corrosive and can only have a
detrimental effect on our military credibility overseas. This
corrosion is difficult to measure, for it cannot be quantified
easily in a readiness report or training exercise. But in
squadbays and wardrooms around the world, and at bases in the
United States, there can be heard whispers and conversations of
those who know that had they merely been accused of the same
offense, their careers would have ended long ago.
This is the intangible effect that the President's actions
have had on our military. We cannot ignore the fact that the
Commander in Chief's conduct sets a poor example for the men
and women in the military. Worse, we cannot ignore the idea
that to acquit the President would create a double standard.
The Constitution directs this body to provide advice and
consent to the President's nominations for military officers.
It is your singular responsibility to set high standards of
conduct for these officers, and you have done that. The Senate
has in the past--and you will likely again do so in the
future--rejected those whose moral and legal misconduct makes
them unsuitable to be officers in the military.
Let me indulge in a hypothetical. An officer is nominated
by the President for promotion to the rank of major. After the
list is submitted, but before the Senate's confirmation, an
investigation of the individual's background results in a
report that mirrors the allegations in the Office of
Independent Counsel's referral. After a very careful review of
the Uniform Code of Military Justice, this captain, after
having committed similar offenses as are in the Office of
Independent Counsel's referral, could be charged with article
105, false swearing, and face up to 3 years; he could be
charged in article 107, false official statement, facing up to
5 years; he could be charged with article 131, perjury--
probably several times--and face up to 5 years; he could be
charged with article 133, conduct unbecoming an officer; he
could be charged with article 134, prevent seizure of property,
and face up to 1 year imprisonment; he could be charged with
article 134, soliciting another to commit an offense, with a
penalty of up to 5 years; he could be charged with article 134,
subornation of perjury, and face confinement up to 5 years; he
could be charged with article 134 again, obstructing justice,
and face 5 years. I could probably come up with about four
others, but I won't get into the salacious details.
Needless to say, the Senate would insist on this
hypothetical officer's removal from the promotion list. You
would do that. The Service would certainly relieve him of his
duties.
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.
Some would say that what I just talked about doesn't
matter--that in the military they live under different
standards--they live under these high standards. They say words
like ``duty,'' ``honor,'' ``country.'' They are instilled with
core values and core virtues--that really doesn't matter in
this case--that the President really doesn't have to follow
those types of high standards--that it elevates some form of
high standards, if he stands accused of high crimes--it really
is not high crimes; it was about a private matter--that they
don't rise to the level needed to remove the President from
office.
I remind you of Gen. Douglas MacArthur. In his farewell
address at West Point, Gen. Douglas MacArthur stated, when he
referenced the words I spoke of, ``duty'' and ``honor'' and
``country,'' and the high principles:
The unbelievers will say they are but words, but a slogan,
but a flamboyant phrase. Every pedant, every demagogue, every
cynic, every hypocrite, every troublemaker, and I am sorry to
say, some others of an entirely different character, will try
to downgrade them to the extent of mockery and ridicule.
The ideal object must be held high even though we recognize
that as humans we are not perfect. No matter how great we
aspire, we are human and we will occasionally fail. But there
must be the pursuit of such high ideals. We cannot degrade our
standards as a people. By a conviction in the Senate of the
President of the United States you will be upholding a high and
lofty standard, not only for America, but in particular for
those military leaders, rather than setting low standards for
the President and a high lofty standard for military leaders.
Let me turn to the President's responsibility to see that
``the laws are faithfully executed.'' According to scholar
Philip B. Kurland, it was probably George Washington rather
than the Constitution who is responsible for our hierarchy of
Cabinet officers that has been taken for granted over the
years. And we have heard of the President as the chief law
enforcement officer of the land, and we can find it in the
Constitution. So we have to give credit to George Washington
and how he put together the Cabinet. And we have accepted it
over time. It has been accepted by custom, practice, and
legislation that the executive branch is an entity for which
the President is responsible both to Congress and to the
public.
Mr. Kurland stated:
The whole of the executive branch acts subordinately to the
command of the President in the administration of Federal laws,
so long as they act within the terms of those laws. Their
offices confer no right to violate the laws, whether they take
the form of constitution, statute, or treaty.
The President's Departments of Treasury and Justice seek to
bring to account those who disturb our ``domestic
tranquility,'' those who seek to disturb our ``domestic
tranquility,'' whether they be the drugpushers or unabombers,
gangsters, mobsters, church arsonists, violators of individual
rights. Dedicated men and women of the FBI, DEA, Customs,
Secret Service, BATF, INS, and the U.S. Marshals Office pursue
them methodically, thoughtfully, firmly, doggedly, applying the
law while risking their lives to uphold the rule of law for our
peace and security. They seek to ensure equal justice under the
law for everyone.
In the book, ``The Imperial Presidency,'' Professor Arthur
Schlesinger, Jr. states:
The continuation of a lawbreaker as chief magistrate would
be a strange way to exemplify law and order at home or to
demonstrate American probity before the world.
By a conviction, the Senate will be upholding the high
calling of law enforcement in protecting the rule of law and
equal justice under the law.
``Equal justice under law''--that principle so embodies the
American constitutional order that we have carved it in stone
on the front of the Supreme Court building right across the
street. The carving across the street shines like a beacon from
the highest sanctum on those of us in the Capitol, the home of
the legislative branch, and it shines right down Pennsylvania
Avenue to the White House, the home of the executive branch. It
illuminates our national life and reminds those other branches
that despite the tumbling tides of politics, ours is a
government of laws and not of men. It was the inspired vision
of our founders and framers, again, that the judicial,
legislative, and executive branches would work together to
preserve the rule of law.
But ``equal justice under law'' amounts for much more than
a stone carving. Although we can't see it or hear it, this
living, breathing force has very real consequences in the lives
of every citizen every day in America. It allows Americans to
claim the assistance of the government when someone has wronged
us--even if the person is stronger or wealthier or more popular
than we are. In America, unlike other countries, when an
average citizen sues the Chief Executive of our Nation, they
stand equal before the bar of justice. The Constitution
requires the judicial branch of our Government to apply the law
equally to both. That is the living consequence of ``equal
justice under law'' that shines brightly across our country.
The President of the United States must work with the
judicial and the legislative branches to sustain that force. He
is the temporary trustee of that office. But, unfortunately and
sadly, William Jefferson Clinton worked to defeat it and to
bring darkness upon that grand illumination. When he stood
before the bar of justice, he acted without authority to award
himself. Even if he believed in his heart that the case against
him was politically motivated, he simply assumed unto himself
that he had by virtue of his power special privileges that he
could be clever, create his own definitions of words in his own
mind--create what C.S. Lewis called ``verbicide.'' He murdered
the plain spoken English language so he could come up with
these definitions in his own mind, state them, and then say,
``Well, I never committed perjury because this is what I meant
by this word,'' even though it fails the reasonableness test,
and it is absurd that no one would believe his own definitions.
He assumed these special privileges, and then lied and
obstructed justice to gain advantage in a Federal civil rights
action in the U.S. District Court for the Eastern District of
Arkansas. And he did so then again when a Federal grand jury
began to investigate that lawlessness. And he did it before the
grand jury in the U.S. District Court for the District of
Columbia. His resistance brings us to this most unfortunate
juncture for which you sit in judgment.
So ``equal justice under law'' lies at the heart of this
matter. It rests on three essential pillars: an impartial
judiciary, an ethical bar, and a sacred oath. If litigants
profane the sanctity of the oath, ``equal justice under law''
loses its protective force.
The House, as does the Senate, has the responsibility to
uphold the Constitution. We have all taken our oaths to defend
the Constitution. The Founding Fathers created a system of
checks and balances, a system of accountability between the
functions of Government. I believe, as I am sure you do, that
the Founding Fathers knew the nature of the human heart.
Sometimes, as much as we try, we fail, in that the human heart
does in fact struggle at times between good and evil. We
recognize that no person has perfect virtue and that we each
have our human failings. And the founders could foresee a time
when corruption could invade the institutions of Government,
and they provided the means to address it. The impeachment
proceeding is one such means. We are seeking to defend the rule
of law.
America, again, is a government of laws, not of men. What
protects us from that knock on the door in the middle of the
night is the law. What ensures the rights of the weak and the
powerless against the powerful is the law. What provides the
rights to the poor against the rich is the law. What upholds
the rightness of the minority view against the popular but
wrong is the law. As former President Andrew Jackson wrote,
``The great can protect themselves, but the poor and the humble
require the arm and shield of the law.''
When our Nation began its journey in history over 200 years
ago, the United States was nearly unique in depending on the
rule of law as opposed to, at that time, the rule of kings and
czars and chieftains and monarchs. Now that our unique, grand
American experiment has proved unto the rest of the world a
success, others now seek to follow us. They seek to follow. And
we have seen in the crumbling of the Soviet Union that the
former Soviet nations, now infant republics, look and turn to
us. They turn to us, a government ruled by law.
For the sake of ourselves and the sake of generations yet
unborn, we, and in particular you who sit in judgment in the
Senate, must preserve the rule of law.
I will leave you with the words of the first President of
the Senate and the second President of our Nation, John Adams.
He said:
Facts are stubborn things; and whatever may be our wishes,
our inclinations, or the dictates of our passions, they cannot
alter the state of facts and evidence.
I believe John Adams was right. Facts and evidence. Facts
are stubborn things. You can color the facts. You can shade the
facts. You can misrepresent the facts. You can hide the facts.
But the truthful facts are stubborn; they won't go away. Like
the telltale heart, they keep pounding, and they keep coming,
and they won't go away. What is also stubborn are the
precedents of the Senate.
I will now yield the floor for Manager Graham of South
Carolina to discuss the precedents of the Senate.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. I sense the need for a 10-minute break, but, I
say to my colleagues, please tend to your business and return
promptly so that we can get started with the proper decorum.
There being no objection, at 11:15 a.m., the Senate
recessed until 11:29 a.m.; whereupon, the Senate reassembled
when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to
begin with Manager Graham. I have been asked about any changes
in the schedule. It depends on how things move forward. I will
ask for consent to change it, depending on how things developed
from this point, Mr. Chief Justice.
I yield the floor.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Graham.
Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. I think I
broke the code there. When I hear stomachs growling, I know it
will be time to wrap this up.
This is an unbelievable occasion for all of us. I am
Lindsey Graham from South Carolina. We talk about civil rights.
I am a child of the South and I will give you my views on civil
rights and how we progressed in this country, but I am going to
talk to you a bit about some decisions this body has made
regarding the crime of perjury and obstruction of justice and
the impeachment clause in the Constitution as it applies to
Federal judges. I am not so presumptuous to tell you I know
more about what you did than you did. I am going to try to
highlight some of the things that you did that I think served
this country well in this area. But before we get there, a
couple of observations.
As I was walking over through the Rotunda today, there was
a group of Japanese tourists there, and I stopped and talked.
My dad, who is now deceased, was a World War II veteran, and it
struck me, 50 years plus, how resilient this world is. My dad's
generation I don't think would have ever envisioned 50 years
ago that his son, one, would be a Congressman, which is a great
thing about this country, and two, would be stopping and
talking to Japanese tourists in the Capitol of the United
States.
So when we talk about the consequences of this case, 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.
This has been billed as a constitutional drama, by some of
the pundits, that is called a snoozer. I can understand that a
little bit. I am the 12th lawyer you have had to listen to, and
I think my colleagues have done a very good job. But it is a
very long and tedious process in many ways. It is hard to sit
here and listen to 12 lawyers talk to you. But you have done a
wonderful job, I think. I am very proud of the U.S. Senate. You
have paid great attention.
But the fact that people call this boring is not a bad
thing to me. I think it shows the confidence we have achieved
in 200 years as a Republic that people can go on about their
business, and they are upset. I know my phone rings a lot, and
your phone rings a lot, about what to do. But there is a
calmness in this country in the midst of something so important
like this that tells me we have done it right for a long time.
How many countries would love the chance to be bored when
their government is in action? How many countries fear that the
government won't work for them; that to get it right, you have
to pick up a gun? That happens every day throughout this world.
And the fact that we can come together and talk about something
so important and the country can go on and people not be so
anxious about their personal lives and their freedoms and their
properties and their jobs is a compliment to every generation
that has ever served this Republic.
Tom Brokaw has a book out called ``The Greatest
Generation,'' and I recommend you read it because we will be
talking about that in a moment. But let's talk about some of
this country's imperfections. Mr. Buyer talked very eloquently
about the rule of law and how it makes us so different and how
it is something that people literally do die for and have died
for.
But let me tell you, as a lawyer, it is not a perfect legal
system. If you are a poor person and you are charged with a
crime, you are likely to get a public defender right out of law
school and, hopefully, that public defender will do the best he
can or she can. But it is not a perfect system. Don't ever
think it is.
Civil rights have been advanced a lot in my lifetime, but
we have a long way to go in South Carolina. I think we have a
long way to go in this Nation. In my lifetime, I started school
with no black person in my class. By the sixth grade--I think
it was the sixth grade--integration hit in my area, and I can
remember my mom and dad being scared to death about what it
would do and what it would mean. But we made it, and we are
better off as a country.
We are here to judge our President. We are here to say
whether or not he is guilty, to begin with, of some serious
offenses that are colored by sex, and there is absolutely no
way to get around that, and I know it is uncomfortable to
listen to.
My father and mother owned a restaurant, a beer joint, I
guess is what we would say in South Carolina. I can remember
that if you were black, you came and you had to buy the beer
and you had to go because you couldn't drink it there. That is
just the way it was, is what my dad said. I always never quite
understood that. My dad and mom were good people, but that is
just the way it was. That is not the way it is now, and we are
better off for that.
Sexual harassment cases are always uncomfortable to listen
to. That is just the way it is. It used to be in this country,
not long ago, there was really no recourse if you were sexually
harassed. We have changed things for the better.
The reason we are here today is not because somebody wanted
to look into the personal life of the President for no good
reason. We are here today because somebody accused him when he
was Governor of picking her out of a crowd, asking her to come
to a hotel room, and, if you believe her, did something very
crude and rude that you wouldn't want to happen to anybody in
your family. Only God knows what happened there. That case has
been settled. The parties know and God knows. We will never
know.
Let me just say this. I am proud of my country where a low-
level employee can sue the Governor of their State and, if that
Governor becomes President, they can still sue.
The Supreme Court said 9 to 0--a shutout legally--``Mr.
President, you will stand subject to this suit.'' We are going
to talk about, is this private or public conduct, does this go
to the heart of being President, or is this just some private
matter for which he could be prosecuted after he gets out of
office? Is this really a big deal about being President?
I contend, ladies and gentlemen of the Senate, it became a
big deal about being President when he raised the defense:
``You can't sue me now because I am the President, I am a busy
man, I have a lot going on.'' He used his office, or tried to,
to avoid the day in court, but the Supreme Court said, ``No,
sir, you will stand subject to suit under some reasonable
accommodation.'' And we are here today.
If I had been on the Supreme Court, I don't know if I would
have ruled that way. There is not much chance of that happening
any time soon, if you are worried about that. I don't think
that is going to be in my future. [Laughter.]
I may not have ruled that way, and we in Congress, if we
don't like the way all this has come out, can change that law,
we can change that ruling by law. But it is the law of the
land, because the Chief Justice and his colleagues said so.
What did our President do? He tried to say, ``You can't sue
me because I am President.'' He participated in that lawsuit
because he was told to, and I would argue, ladies and
gentlemen, that we all assumed he would play fair. Now isn't
there a lot of doubt about that?
Ladies and gentlemen of the Senate, what if he had not
shown up? What if he refused to answer any court order? What if
he had said, ``I am not going to play, that is it; I am not
going to listen to you, judicial branch''? You know the remedy
to resolve problems like that when Presidential conduct gets
out of bounds. Do you know where that remedy lies? It lies with
us, the U.S. Congress. When a President gets out of bounds and
doesn't do as he or she should do constitutionally--and I would
argue that every President and every citizen has a
constitutional duty not to cheat another citizen, especially
the President--and they get out of bounds, it is up to us to
put them back in bounds or declare it illegal.
And how do we do that? How do we regulate Presidential
misconduct when it is done in a Presidential fashion? Through
the laws and powers of impeachment. That is why we are here
today.
It is going to take team work on our part to get this
right, because I will argue to you in a moment that the
President of the United States, through his conduct, flouted
judicial authority and decisionmaking over him. When he chose
to lie, when he chose to manipulate the evidence to witnesses
against him and get his friends to lie for him, he, in fact, I
think, vetoed that decision.
It's worse than if he had not shown up at all. Is that out
of bounds? That is what we are going to be talking about today.
And we have some guidance as to what really is in or out of
bounds for high Government officials. What is a high crime? How
about if an important person hurts somebody of low means? It is
not very scholarly, but I think it is the truth. I think that
is what they meant by ``high crimes.'' It doesn't have to be a
crime. It is just when you start using your office and you are
acting in a way that hurts people, you have committed a high
crime.
When you decide that a course of conduct meets the high
crimes standard under our Constitution for the President, what
are we doing to the Presidency? I think we are putting a burden
on the Presidency. And you should consider it that way, that if
you determine the conduct and the crimes in this case are high
crimes, you need to do so knowing that you are placing a burden
on every future occupant of that office and the office itself.
So do so cautiously, because one branch of the Government
should never put a burden on another branch of the Government
that is not fair and they can't bear.
Ladies and gentlemen of the Senate, if you decide from the
conduct of this President that henceforth any officeholder who
occupies the office of President will have this burden to
bear--let me tell you what it is: don't lie under oath to a
Federal grand jury when many in the country are begging you not
to--can the occupant bear that burden?
I voted against article 2 in the House, which was the
deposition perjury allegations against the President standing
alone. I think many of us may have thought that he didn't know
about the tapes, that he and Ms. Lewinsky thought they had a
story that was going to work, and he got caught off guard, and
he started telling a bunch of lies that maybe I would have lied
about, maybe you would have lied about, because it is personal
to have to talk about intimate things; and our human nature is
to protect ourselves, our family; that is just human nature.
But, ladies and gentlemen, what he stands charged of in
this Senate happened 8 months later, after some Members of this
body said, ``Mr. President, square yourself by the law. Mr.
President, if you go into that Federal grand jury and you lie
again, you're risking your Presidency.'' People in this body
said that. Legal commentators said that. Professor Dershowitz
and I probably don't agree on a lot. I think he would probably
agree with that statement. That would be one thing on which we
would agree. He said--and he is a very smart, passionate man;
and I like passionate people even if I don't agree with them--
even he said that if you go to a grand jury and you lie as
President, that ought to be a high crime.
So within the context in which you are going to decide this
case, you have to understand human failings, because if you
don't do that, you are not being fair. And I know you want to
be fair.
Human failings exist in all of us. Only when it gets to be
so premeditated, so calculated, so much ``my interest over
anybody else'' or ``the public be damned,'' should you really,
really start getting serious about what to do. That happened in
August, in my opinion, ladies and gentlemen. After being begged
not to lie to the grand jury and end this matter, he chose to
lie.
That is the burden you will be placing on the next
President: ``Don't do that. Don't lie under oath when you are a
defendant in a lawsuit against an average citizen. Have the
courage to apply the law in a fair manner to yourself.''
Mr. Buyer talked about values and courage. Let me say
something about President Clinton that I believe. I believe he
does embrace civil rights for our citizens. I believe he has
been an articulate spokesman for the civil rights for our
citizens. I believe that may be one of the hallmarks of his
Presidency. And I am not here to tell you that he doesn't. I am
here to tell you that when it was his case, when those rights
had to be applied to him, he failed miserably.
It is always easy to talk about what other people ought to
do. The test of character is the way you judge people with whom
you disagree: Don't cheat in a lawsuit by manipulating the
testimony of others. Don't send public officials and friends to
tell your lies before a Federal grand jury to avoid your legal
responsibilities. Don't put your legal and political interests
ahead of the rule of law and common decency.
If you find that these are high crimes, that is the burden
you are placing on the next officeholder. If they can't meet
that burden, this country has a serious problem. I don't want
my country to be the country of great equivocators and
compartmentalizers for the next century. And that is what this
case is about, equivocation and compartmentalizing.
What I have described to you as the conduct of the
President being a high crime I think is just his job
description. We are asking no more of him than to be the chief
law enforcement officer of the land--follow your job
description. A determination that this conduct is a high crime
is no burden that cannot be borne in a reasonable fashion by
future occupants.
Why did I talk about constitutional teamwork? I am a child
of the South. The civil rights litigation in matters that came
about in the sixties was threefold: There was legislation
passed in Congress, there were judicial decisions that were
rendered, and the executive branch came in to help out.
Remember when Governor Wallace was standing in the door of the
University of Alabama? Remember how he was told to step aside?
What went on? It was a constitutional dance of magnificent
proportions. You had litigation that was resolved for the
individual citizen so they could go in and acquire the rights,
full benefits, of a citizen of that State; you had legislation
coming out of this body; and you had defiance against the
Federal Government from the State level; and you had the
President and the executive branch federalizing the National
Guard. And, ``Governor Wallace, step aside.''
It was 9-0 that Bill Clinton had to be a participant in the
lawsuit, and he chose to cheat in every manner you can cheat in
a lawsuit. His conduct needs to be regulated, and it needs to
be brought to bear under the Constitution. If you put him in
jail after his office, that would not solve the constitutional
problem he created. The constitutional conduct exhibited by the
Executive, when he was told by the judicial branch, ``You've
got to participate in a lawsuit,'' was so far afield of what is
fair, what is decent, that it became a high crime, and it
happened to be against a little person.
The Senate has spoken before about perjury and obstruction
of justice and how it applies to high Government officials. And
those Government officials were judges.
Before we start this analysis, it is important to know--and
some of you know this better than I will ever hope to know the
history of this Senate, the history of this body and how it
works and why it works--that when a judge is impeached in the
United States of America, the same legal standard--treason,
bribery, or other high crimes and misdemeanors--is applied to
that judge's conduct as it is to any high official, just like
the President. So we are comparing apples to apples.
In Judge Claiborne's trial, they seized upon the language,
``Judges shall hold their office during good behavior.'' And
the defense was trying to say, unlike the President and other
Government officials, high Government officials, the
impeachment standard for judges is ``good behavior.'' That is
the term. It's a different impeachment standard. You know these
cases better than I know these cases, and you said, ``Wrong.''
The good behavior standard doesn't apply to why you will be
removed. It is just a reference to how long you will have your
job.
Our President can serve for two terms. A judge serves for
life, conditioned on good behavior. What gets you out of office
is whether or not you violate the constitutional standard for
impeachment, which is treason, bribery, or other high crimes
and misdemeanors.
So as I talk to you about these cases and what you as a
body did, understand we are using the same legal standard, not
because I said so, but because you said so. Judge Claiborne was
convicted and removed from office by the Senate 90-7. For what?
Filing a false income tax return under penalties of perjury.
One thing they said in that case was, ``I'm a judge and filing
false income tax returns has nothing to do with me being a
judge and I ought not lose my job unless you can show me or
prove that I did something wrong as a judge.'' They were saying
cheating on taxes has nothing to do with being a judge.
Do you know what the Senate said? It has everything to do
with being a judge. And the reason you said that is because you
didn't buy into this idea that the only way you can lose your
job as a high Government official under the Constitution is to
engage in some type of public conduct directly related to what
you do every day. You took a little broader view, and I am
certainly glad you did, because this is not a country of high
officials who are technicians. This is a country based on
character, this is a country based on having to set a standard
that others will follow.
This is Manager Fish:
Judge Claiborne's actions raise fundamental questions about
public confidence in, and the public's perception of, the
Federal court system. They serve to undermine the confidence of
the American people in our judicial system . . . Judge
Claiborne is more than a mere embarrassment. He is a disgrace--
an affront--to the judicial office and to the judicial branch
he was appointed to serve.
That is very strong language. Apparently, you agreed with
that concept because 90 of you voted to throw him out. What did
he do? He cheated on his taxes by making false statements under
oath.
Now we will talk more about public versus private. Senator
Mathias, about this idea of public versus private:
It is my opinion . . . that the impeachment power is not as
narrow as Judge Claiborne suggests. There is neither historical
nor logical reason to believe that Framers of the Constitution
sought to prohibit the House from impeaching . . . an officer
of the United States who had committed treason or bribery or
any other high crime or misdemeanor which is a serious offense
against the government of the United States and which indicates
that the official is unfit to exercise public responsibilities,
but which is an offense which is technically unrelated to the
officer's particular job responsibilities.''
This hits it head on:
Impeachable conduct does not have to occur in the course of
the performance of an officer's official duties. Evidence of
misconduct, misbehavior, high crimes, and misdemeanors can be
justified upon one's private dealings as well as one's exercise
of public office. That, of course, is the situation in this
case.
It would be absurd to conclude that a judge who had
committed murder, mayhem, rape or perhaps espionage in his
private life, could not be removed from office by the U.S.
Senate.
The point you made so well was that we are not buying this.
If you are a Federal judge and you cheat on your taxes and you
lie under oath--it is true that it had nothing to do with your
courtroom in a technical sense, but you are going to be judging
others and they are going to come before you with their fate in
your hands, and we don't want somebody like you running a
courtroom because people won't trust the results.
Judge Walter Nixon, convicted and removed from office for
what? Perjury before a grand jury. What was that about? He
tried to fix a case for a business partner's son in State
court. He went to the prosecutor who was in State court and
tried to fix the case. When they investigated the matter, he
lied about meeting with the prosecutor. He lied about doing
anything related to trying to manipulate the results. He was
convicted and he was thrown out of office by the U.S. Senate.
I guess you could say, what has that got to do with being a
Federal judge? It wasn't even in his court. It has everything
to do with being a high public official because if he stays in
office, what signal are you sending to anybody else sent to his
courtroom or anybody else's courtroom?
The question becomes, if a Federal judge can be thrown out
of office for lying and trying to fix a friend's son's case,
can the President of the United States be removed from office
for trying to fix his case? That is not a scholarly work but
that is what happened. He tried to fix his case. He tried to
turn the judicial system upside down, every way but loose. He
sent his friends to lie for him. He lied for himself. Any time
any relevant question came up, instead of taking the honorable
way out, he lied and dug a hole, and we are all here today
because of that.
I am not going to go over the facts again because you have
been bombarded with the facts. If you believe he committed
perjury and if you believe he obstructed justice, the reason he
did it was to fix his case. And you have some records to rely
upon to see what you should do with somebody like that.
Judge Hastings: This Federal judge was convicted and
removed from office by the U.S. Senate. But do you know what is
interesting about this case to me? He was acquitted before he
got here. He was accused of conspiring with another person to
take money to fix results in his own court. He gave testimony
on his own behavior. The conspirator was convicted but he was
acquitted.
Do you know what the U.S. Senate and House said? We believe
your conduct is out of bounds and we are not bound by that
acquittal. We want to get to the truth, and we don't want
Federal judges about whom we have a strong suspicion or
reasonable belief are trying to fix cases in their court.
The point I am trying to make is you don't even have to be
convicted of a crime to lose your job in this constitutional
Republic if this body determines that your conduct as a public
official is clearly out of bounds in your role. Thank God you
did that, because impeachment is not about punishment.
Impeachment is about cleansing the office. Impeachment is about
restoring honor and integrity to the office. The remedy of
prosecuting William Jefferson Clinton has no effect on the
problem you are facing here today, in my opinion.
Every case was tried before it got here with different
results. Two of them were convicted; one of them was acquitted.
You had a factual record to go upon. I urge you, ladies and
gentlemen of the U.S. Senate, that cannot happen in this case
unless we have a trial in the true sense of the word. The
evidence is compelling and overwhelming, but it has only been
half told. The learned counsel for the President will have
their chance, and they are excellent lawyers.
If this were a football game, we would be almost at half
time. Please, please wait, because I have sat where they are
sitting, dying to say something. I know there are things they
want to tell you about what we have said that may put this in a
different light. That is coming, and it ought to come.
But there is another thing that you will have to decide:
Has the factual record been developed enough that I can acquit
with good conscience or that I can convict and remove with good
conscience? In these judge cases, there was a full-blown trial.
Because we can't prosecute the President criminally, we can't
do the things that happened in the judge cases, so we don't
have that record. I just submit that to you for your wisdom.
None of this matters unless you believe he committed the
offense. And I am not going to go over that again.
You know the facts pretty well. If there is any doubt,
let's call witnesses and let's develop them fully and leave no
doubt on the table, and make sure that history will judge us
well. Everybody--the House and the President--will have a fair
shot at proving their case, that these high crimes occurred.
I don't believe, ladies and gentlemen, that when you look
at the totality of what the President did and prior precedents
of the Senate, the fact that he was told by the Supreme Court
to go into this litigation matter and he cheated so badly, that
you would consider these not to be high crimes. Because you are
not placing a burden on this office that the office can't bear,
I think that will be resolved, I hope and pray, in a bipartisan
fashion.
If we can do nothing else for this country, let us state
clearly that this conduct is unacceptable by any President.
These are, in fact, high crimes. They go to the core of why we
are all here as a Nation and to the rule of law, the rules of
litigation. He cheated, and you have to put him back in bounds,
remove him. Determining this as a high crime puts it back into
bounds.
This is a hard question. I am not going to tell you it is
not. I do not want to be where you are sitting. I think the
evidence will be persuasive that he is guilty. The logic of
your past rulings and just fundamental fairness and decency,
and helping the Supreme Court enforce their rules, if nothing
else, will lead you to a high-crime determination.
But we are asking you to remove a popular President. I
don't know why all this occurred. And we have a popular
President. I know this. The American people are fundamentally
fair, and they have an impression about this case from just
tons and tons and tons of talk, tons and tons and tons of
speaking. One in five, they tell me, are paying close attention
to this. The question you must ask is: If every American were
required to do what I have to do, sit in silence and listen to
the evidence, would it be different? You are their
representatives; they will trust you. This is a cynical age,
but I am optimistic that whatever you do, this country will get
up and go to work the next day, and they will feel good, no
matter what it is.
To set aside an election is a very scary thought in a
democracy. I do not agree with this President on most major
policy initiatives. I did not vote for this President. But he
won; he won twice. To undo that election is tough.
Let me give you some of my thoughts. How many times have
you had to go to a child, a grandchild, or somebody who works
for you, and give them a lecture that goes along the lines:
Don't do as I do, do as I say. Isn't that a miserable
experience? The problem with keeping this President in office,
in my opinion, is that these crimes can't be ignored by anybody
who looks at the evidence. They can be explained away, they can
be excused; but they have far-reaching consequences for the
law. And in his role as chief law enforcement officer of the
land, how can we say to our fellow citizens that this will not
be 20 months of ``don't do as I do, do as I say.'' What effect
will that have? I think it would be devastating.
This case is the butt of a thousand jokes. This case is
requiring parents and teachers to sit down and explain what
lying is all about. This case is creating confusion. This case
is hitting America far harder than America knows it has been
hit. It is tempting to let the clock tick, but I suggest to
you, ladies and gentlemen of the Senate, if you believe he is a
perjurer, that he obstructed justice in a civil rights lawsuit,
the question is not, Should he stay? It is, what if he stays?
If you believe this President committed perjury before a grand
jury when he was begged not to, and people in this body told
him, ``Don't do it, because your political career is at
stake,'' and if you believe he obstructed justice in a civil
rights lawsuit, don't move the bar anymore. We have moved the
bar for this case a thousand times.
Remember how you felt when you knew you had a perjurer as a
judge, when you knew you had somebody who had fundamentally run
over the law they were responsible for upholding. Remember how
you felt when you knew that judge was so out of bounds that you
could not put him back in court, even though it was unrelated
to his court, because you would be doing a disservice to the
citizens who would come before him. A judge has a duty to take
care of the individuals fairly who come before the court. The
President, ladies and gentlemen of the Senate, has a duty to
see that the law applies to everyone fairly--a higher duty in
the Constitution. You could not live with yourself, knowing
that you were going to leave a perjurer as a judge on the
bench.
Ladies and gentlemen, as hard as it may be, for the same
reasons, cleanse this office. The Vice President will be
waiting outside the doors of this Chamber. Our constitutional
system is simple and it is genius all at the same time. If that
Vice President is asked to come in and assume the mantle of
Chief Executive Officer of the land and chief law enforcement
officer of the land, it will be tough, it will be painful, but
we will survive and we will be better for it.
Thank you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Canady.
Mr. Manager CANADY. Mr. Chief Justice, distinguished
counsel, ladies and gentlemen of the Senate, I am
Representative Charles Canady of the 12th District of Florida,
and I rise now to conclude the argument that my two fellow
managers have begun and to address the fundamental question now
before the Senate: Do the offenses charged against the
President rise to the level of ``high crimes and misdemeanors''
under the Constitution?
Are these crimes--perjury before a federal grand jury and
obstruction of justice--offenses for which the President has
properly been impeached by the House of Representatives and for
which he may now properly be convicted by the Senate? Or are
these serious felony offenses for which a Chief Executive may
not constitutionally be called to account by either the House
or the Senate?
To properly answer these questions, it must be understood,
as my fellow manager Mr. Buyer has argued, that perjury and
obstruction of justice are serious offenses against the system
of justice. To properly answer these questions, it must also be
understood--as my fellow manager Mr. Graham has discussed--that
the Senate has already determined that as a serious offense
against the system of justice, perjury is proper grounds for
removal from office.
There are several additional points that I now ask you to
consider as you deliberate on the momentous issue you must
decide.
First, I will argue that restricting the impeachment
process to crimes involving the abuse of Presidential power is
contrary to common sense. This is a key point in this case. The
President's defense hinges to a large extent on his claim that
the offenses charged against him do not involve official
misconduct.
I will then review the history and purpose of the
impeachment process to show that its fundamental object is to
maintain the supremacy of law against the misconduct of public
officials. After reviewing the background of the impeachment
process, I will briefly discuss the prevailing views on the
seriousness of perjury at the time the Constitution was
adopted, and show that perjury and obstruction of justice are
akin to bribery in their purpose and effect.
To conclude, I will discuss the proper role of the Senate
in exercising the removal power--emphasizing three essential
points:
First, that the removal power is designed to preserve,
protect, and strengthen our Constitution by setting a standard
of conduct for public officers.
Second, that the Senate should not establish a lower
standard of integrity for the President than the standard it
has already established for Federal judges.
Third, that the Senate should not allow a President who has
violated his constitutional duty and oath of office, and made
himself a notorious example of lawlessness, to remain in
office.
The President's lawyers have argued that the ``Constitution
requires proof of official misconduct'' for impeachment and
conviction, and that removal from office is not proper for
crimes that do not involve an abuse of the power of office.
This view is endorsed by various academics who have signed a
letter in support of the President. The Senate must now decide
if this is a proper interpretation of the Constitution.
In deciding this question, you should be guided by common
sense and good judgment. It is by no means an abstruse and
mysterious matter of constitutional law.
Nor is it a new question before the Senate. It has been
decided in the recent judicial impeachments which Mr. Graham
has discussed. And it is a question which arose 200 years ago
in the course of the first impeachment trial conducted by the
Senate.
At that trial in January of 1799, as the Senate met in
Philadelphia, an argument was made by counsel for the
respondent, Senator Blount of Tennessee, that the impeachment
power was properly exercised only with respect to ``official
offenses.'' Although Senator Blount escaped conviction on other
grounds, the response to his claim that only official
misconduct could justify impeachment and removal remains
noteworthy. Robert Goodloe Harper of South Carolina, one of the
House managers--and who, incidentally, subsequently served as a
Member of this Senate representing the State of Maryland--
refuted that claim by asking a simple question:
``Suppose a Judge of the United States were to commit a
theft or perjury; would the learned counsel say that he should
not be impeached for it? If so, he must remain in office with
all his infamy. . . .''
Two hundred years to the month after Robert Goodloe Harper
posed that question to the Senate, a very similar question is
before the Senate today. Shall a President--if found guilty of
perjury and obstruction of justice--be removed, or must he
``remain in office with all his infamy'' ?
Although a judge who commits crimes may be subjected to
criminal penalties and prevented from discharging judicial
functions, he can be divested of his office only by impeachment
and removal. The tenure of a President will necessarily expire
with the passage of time, but most scholars of constitutional
law agree that while he remains in office he is immune from the
processes of the criminal law. So long as he is President, the
only mechanism available to hold him accountable for his crimes
is the power of impeachment and removal. Unless that power is
exercised, no matter what crime he has committed, he must
``remain in office with all his infamy.''
The argument of the President's lawyers that no criminal
act by the President subjects him to removal from office unless
the crime involves the abuse of his power is an argument
entailing consequences which--upon a moment's reflection--this
body should be unwilling to accept.
Would a President guilty of murder be immune from the
constitutional process of impeachment and removal so long as
his crime involved no misuse of official power? Would a
President guilty of sexual assault or child molesting remain
secure in office because his crime did not involve an abuse of
office?
In support of their position, the President's lawyers have
vigorously argued that a President who committed tax fraud--a
felony offense not involving official misconduct--would not be
subject to impeachment and removal. They erroneously cite the
decision of the House Judiciary Committee rejecting an article
of impeachment against President Nixon for tax fraud. The
record of the House proceedings establishes that the tax fraud
article against President Nixon was rejected due to
insufficient evidence that he was in fact guilty of tax fraud.
The House Judiciary Committee never determined that tax fraud
by a President would not be grounds for impeachment.
But, leaving aside the inaccurate characterization of the
House Judiciary Committee's action, the claim of the
President's lawyers that a President could commit tax fraud and
remain immune from impeachment and removal is quite telling. It
reveals a great deal about the sort of standard they would set
for the conduct of the President of the United States.
The claim that tax fraud--a felony--does not rise to the
level of a high crime or misdemeanor was, as you have heard,
unequivocally rejected by the Senate in 1986 in the case of
Judge Harry Claiborne, who was removed from office for filing
false income tax returns.
Then-Senator Albert Gore, Jr., summarized the judgment of
the Senate that Judge Claiborne should be removed from office.
The comments of Senator Gore bear repeating:
It is incumbent upon the Senate to fulfill its
constitutional responsibility and strip this man of his title.
An individual who has knowingly falsified tax returns has no
business receiving a salary derived from the tax dollars of
honest citizens.
Of course, the rationale expressed by Senator Gore for the
conviction of Judge Claiborne for his criminal tax offenses
applies with equal--if not greater--force to similar offenses
committed by the President of the United States. Professor
Charles Black, Jr., in his essay on the law of impeachment,
recognized the appropriate application of these principles to
the office of the Presidency. Professor Black said, ``A large-
scale tax cheat is not a viable chief magistrate.''
I respectfully submit to the Senate that the argument of
the President's lawyers concerning tax fraud by a President is
not a viable argument.
Who can seriously argue that our Constitution requires that
a President guilty of crimes such as murder, sexual assault, or
tax fraud remain in his office undisturbed? Who is willing to
set such a standard for the conduct of the President of the
United States? Who can in good conscience accept the
consequences for our system of government that would
necessarily follow? Could our Constitution possibly contemplate
such a result? What other crimes of a President will we be told
do not rise to the level of ``high crimes and misdemeanors?''
These are grave questions that must be addressed by this
Senate. The President's defense requires that these questions
be asked and answered.
Contrary to the claims of the President's lawyers, there is
not a bright line separating official misconduct by a President
from other misconduct of which the President is guilty. Some
offenses will involve the direct and affirmative misuse of
governmental power. Other offenses may involve a more subtle
use of the prestige, status and position of the President to
further a course of wrongdoing. There are still other offenses
in which a President may not misuse the power of his office,
but in which he violates a duty imposed on him under the
Constitution.
Such a breach of constitutional duty--even though it does
not constitute an affirmative misuse of governmental power--may
be a very serious matter. It does violence to the English
language to assert that a President who has violated a duty
entrusted to him by the Constitution is not guilty of official
misconduct. Common sense indicates that official misconduct has
indeed occurred whenever a President breaches any of the duties
of his office.
As we have been reminded repeatedly, the Constitution
imposes on the President the duty to ``take care that the laws
be faithfully executed.'' The charges against the President
involve multiple violations of that duty. A President who
commits a calculated and sustained series of criminal offenses
has--by his personal violations of the law--failed in the most
immediate, direct, and culpable manner to do his duty under the
Constitution.
In their defense of the President, his lawyers, in essence,
contend that a President may be removed for misusing
governmental power, but not for corruptly interfering with the
proper exercise of governmental power. This argument exalts
form over substance. It unduly focuses on the manner in which
wrongdoing is carried out and neglects to consider the actual
impact of that wrongdoing on our system of government. Whether
the President misuses the power vested in him as President or
wrongfully interferes with the proper exercise of the power
vested in other parts of the Government, the result is the
same: the due functioning of our system of government is in
some respect hindered or defeated.
There is no principled basis for contending that a
President who interferes with the proper exercise of
governmental power--as he clearly does when he commits perjury
and obstruction of justice--is constitutionally less
blameworthy than a President who misuses the power of his
office. A President who lies to a Federal grand jury in order
to impede the investigation of crimes is no less culpable than
a President who wrongfully orders a prosecutor to suspend an
investigation of crimes that have been committed. The purpose
and effect of the personal perjury and of the wrongful official
command are the same: the laws of the United States are not
properly enforced.
Although neither the Senate nor the House has ever adopted
a fixed definition of ``high crimes and misdemeanors,'' there
is much in the background and history of the impeachment
process that contradicts the narrow view of the removal power
advanced by the President's lawyers.
There is no convincing evidence that those who framed and
ratified our Constitution intended to limit the impeachment and
removal power to acts involving the abuse of official power.
The key phrase defining the offenses for which the
President, Vice President and other civil officers of the
United States may be removed--``treason, bribery or other high
crimes and misdemeanors''--simply does not limit the removal
power in the way suggested by the President's lawyers.
The truth is as we have heard already today, that treason
and bribery may be committed by an official who does not abuse
the power of his office in the commission of the offense. A
President might, for example, pay a bribe to a judge presiding
over a case to which the President is an individual party. Or a
judge might commit an act of treason without exercising any of
the powers of his office in doing so. By the express terms of
the Constitution those offenses would be impeachable. And there
is no reason to impose a restriction on the scope of ``other
high crimes and misdemeanors'' that is not imposed on treason
and bribery.
Although having a means for the removal of officials guilty
of abusing their power was no doubt very much in the minds of
the framers, the purpose of the removal power was not
restricted to that object.
To properly understand the purpose of the impeachment
process under our Constitution, consideration must be given to
use of impeachment by the English Parliament. Impeachment in
the English system did not require an indictable crime, but the
proceeding was nevertheless of a criminal nature: punishment
upon conviction could extend to imprisonment and even death. It
was a mechanism used by the Parliament to check absolutism and
to establish the supremacy of the Parliament. Through
impeachment, Parliament acted to curb the abuses of exalted
persons who would otherwise have free reign. Impeachment was
used by the Parliament to punish a wide range of offenses:
misapplication of funds; abuse of official power; neglect of
duty; corruption; encroachment on the prerogatives of the
Parliament; and giving harmful advice to the Crown. In the
English practice, ``high crimes and misdemeanors'' included all
of these.
During the impeachment of Lord Chancellor Macclesfield in
1725, Serjeant Pengelly summed up the purpose of impeachment.
It was, he said, for the ``punishment of offenses of a public
nature which may affect the nation.'' He went on to say that
impeachment was also for use in ``instances where the inferior
courts have no power to punish the crimes committed by ordinary
rules of justice . . . or in cases . . . where the person
offending is by his degree raised above the apprehension of
danger from a prosecution carried on in the usual course of
justice; and whose exalted station requires the united
accusation of all the Commons.''
In the case of Warren Hastings--which was proceeding at the
time the Constitution was framed--Edmund Burke described the
impeachment process as ``. . . a grave and important proceeding
essential to the establishment of the national character for
justice and equity.''
As the British legal historian Holdsworth has written, the
impeachment process was a mechanism in service of the ``ideal .
. . [of] government in accordance with law.'' It was a means by
which ``the greatest ministers of state could be made
responsible, like humble officials, to the law.'' According to
Holdsworth:
``. . . [T]he greatest services rendered by this procedure
to the cause of constitutional government have been, firstly,
the establishment of the doctrine of ministerial responsibility
to the law, secondly, its application to all ministers of the
crown, and thirdly and consequently the maintenance of the
supremacy of the law over all.''
Thus the fundamental purpose of the impeachment process in
England was ``the maintenance of the supremacy of the law over
all.'' Those who were impeached and called to account for
``high crimes and misdemeanors'' were those who by their
conduct threatened to undermine the rule of law.
This English understanding of the purpose of impeachment
serves as a backdrop for the work of the Framers of our
Constitution. Despite some important differences in the
functioning of impeachment in England and the United States,
the fundamental purpose of impeachment remained the same:
defending the rule of law.
The records of the proceedings of the Constitutional
Convention also shed light on the meaning of ``high crimes and
misdemeanors,'' and the underlying purpose of the impeachment
mechanism. The primary focus of the relevant discussions at the
Convention was on the need for some means of removing the
President. Early in the proceedings with respect to
impeachment, the Committee of the Whole agreed to make the
President removable ``on impeachment and conviction of
malpractice or neglect of duty,'' although concerns were
expressed that impeachment would give the legislative branch
undue control over the executive, and violate the separation of
powers.
In the course of the proceedings, James Madison stated that
``some provision was needed to defend the community against the
President if he became corrupt, incapacitated, or perverted his
administration into a scheme of peculation or oppression.''
Arguing for a means of removing the President, George Mason
said, ``No point is of more importance than that the right of
impeachment should be continued. Shall any man be above
Justice? Above all shall that man be above it, who can commit
the most extensive injustice?''
Before the Convention settled on the language that was
ultimately adopted, a proposal was considered that would have
limited impeachable offenses to treason and bribery. An effort
was made to broaden this proposal by including
``maladministration'' as an impeachable offense. Madison
objected. He objected that the inclusion of a term as ``vague''
as maladministration would result in the President having
tenure during the pleasure of the Senate. As a compromise, the
term ``maladministration'' was dropped and ``high crimes and
misdemeanors'' was substituted. From this course of proceedings
it can reasonably be concluded that poor administration--at
least if it does not involve corrupt motives--is not a
sufficient ground for impeachment.
In the debate concerning the Constitution in the various
state ratification conventions, the grounds for impeachment
were with some frequency said to include abuse or betrayal of
trust and abuse of power. ``Making a bad treaty'' was also
frequently mentioned as justifying impeachment. At the Virginia
Convention, Governor Randolph spoke of ``misbehavior'' and
``dishonesty,'' and James Madison gave two examples of
impeachable conduct: pardoning a criminal with whom the
President was in collusion, and summoning only a few Senators
to approve a treaty.
One of the most extensive recorded discussions of
impeachment occurred at the North Carolina ratification
convention in remarks made by James Iredell. Iredell, who later
served as a Justice of the Supreme Court, spoke of the
supremacy of the law under the system of government proposed by
the Constitution. He said:
No man has an authority to injure another with impunity. No
man is better than his fellow-citizens, nor can pretend to any
superiority over the meanest man in the country. If the
President does a single act, by which the people are
prejudiced, he is punishable himself. . . . If he commits any
misdemeanor in office, he is impeachable . . .
Iredell also expressed the view that impeachment may be
used only in cases where there is some corrupt motive. He said:
. . . [W]hen any man is impeached, it must be for an error
of the heart, and not of the head. . . . Whatever mistake a man
may make, he ought not to be punished for it, nor his posterity
rendered infamous. But if a man be a villain, and wilfully
abuse his trust, he is to be held up as a public offender, and
ignominiously punished. . . . According to these principles, I
suppose the only instances in which the President would be
liable to impeachment, would be where he had received a bribe,
or acted from some corrupt motive or other.
Iredell's comments buttress the view that impeachment is
not to be used as a political weapon to resolve differences of
policy between the legislative branch and the executive branch.
Impeachment is not an appropriate remedy for errors--even
serious errors--in the administration of government.
To justify impeachment, there must be ``some corrupt
motive,'' a willful ``abuse of trust,'' an ``error of the
heart.'' You will note there is nothing in Iredell's comments
to suggest that a President who engaged in a corrupt course of
conduct by obstructing justice and committing perjury would be
immune from impeachment and removal.
Another major discussion of impeachment during the debate
over ratification occurs in the Federalist No. 65, to which
reference has already been made in those proceedings, where
Alexander Hamilton describes the impeachment process as ``a
method of national inquest into the conduct of public men'' and
discusses the powers of the Senate ``in their judicial
character as a court for the trial of impeachments.''
Now, before I discuss his views of impeachment, I would
like to say a word in defense of Alexander Hamilton--who is a
widely acknowledged champion of our Constitution, widely
acknowledged as one of the most eloquent expositors and
defenders of the Constitution. Unfortunately, the reputation of
Hamilton has in recent days been traduced. It is unjust to the
memory of this great man to compare his personal sins with the
crimes of President Clinton. When Hamilton was questioned about
his affair he told the truth. He took responsibility for his
conduct. There is no evidence that he ever engaged in acts of
corruption. He never lied under oath. He never obstructed
justice. Notwithstanding the efforts of his lawyers, President
Clinton by no means benefits from a comparison with Hamilton.
In ``The Federalist,'' Hamilton writes of the Senate:
The subjects of its 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 recognized that the focus of the impeachment power
is on the ``misconduct of public men'' or the ``abuse or
violation of some public trust.'' Impeachment is a remedy
against officials for ``injuries done . . . to the society
itself.''
Despite the claims of the President's lawyers, the comments
of Hamilton do not support the view that a President can be
impeached and removed only for an abuse of power. The
``misconduct of public men,'' and ``the abuse or violation of
some public trust'' to which Hamilton refers are not restricted
to offenses involving the misuse of official power. The
``misconduct of public men'' encompasses a whole range of
wrongful deeds committed by those who hold office when those
offenses are committed. The ``public trust'' is violated
whenever a public officer breaches any duty he has to the
public. ``Injuries done . . . to the society itself'' similarly
may occur as the result of misconduct that does not involve the
misuse of the powers of office.
I submit to the Senate that the English precedents, the
records of the Constitutional Convention debates, and the
general principles set forth by Hamilton, Iredell, and others
in the debate over ratification do not provide a definitive
list of high crimes and misdemeanors. But they do provide broad
guidance concerning the scope of the impeachment power. The
theme running through all these background sources is that the
impeachment process is designed to provide a remedy for the
corrupt and lawless acts of public officials.
Not surprisingly, those who have been on the receiving end
of impeachment proceedings have been quick to argue for a
restrictive meaning of ``high crimes and misdemeanors.''
President Clinton's lawyers follow in that well-established
tradition.
They attempt to minimize the significance of the charges of
perjury and obstruction of justice against the President. In
essence, they argue that treason and bribery are the
prototypical high crimes and misdemeanors, and that the crimes
charged against the President are insufficiently similar in
both their nature and seriousness to treason and bribery.
But, as the comments of my fellow manager, Mr. Buyer, have
made clear, the crimes set forth in the articles of impeachment
are indeed serious offenses against our system of justice. They
were certainly viewed as serious offenses by those who drafted
and ratified the Constitution.
As Mr. Buyer has mentioned, in his discussion of ``offenses
against the public justice,'' Sir William Blackstone--whose
work James Madison said was in ``every man's hand'' during the
creation of the Constitution--listed the offenses of perjury
and bribery side-by-side, immediately after he listed treason.
In 1790, the First Congress adopted a statute entitled ``An Act
for the punishment of certain crimes against the United
States'' making perjury a crime punishable as a felony. Nothing
could be clearer: perjury is a crime against the United States;
it is not a private matter.
As Mr. Chabot noted yesterday, John Jay, the first Chief
Justice of the United States, said that ``there is no crime
more extensively pernicious to Society'' than perjury.
According to Jay, perjury ``discolors and poisons the Streams
of Justice, and by substituting Falsehood for Truth, saps the
Foundations of personal and public Rights. . . . [I]f oaths
should cease to be held sacred, our dearest and most valuable
Rights would become insecure.'' Given this understanding that
was current at the time the Constitution was adopted, it is
impossible to support the conclusion that perjury and the
related offense of obstruction of justice are somehow trivial
offenses that do not rise to the same level as the offense of
bribery which is enumerated in the Constitution.
Moreover, perjury and obstruction of justice are by their
very nature akin to bribery. When the crime of bribery is
committed, money is given and received to corruptly alter the
course of official action. When justice is obstructed, action
is undertaken to corruptly thwart the due administration of
justice. When perjury occurs, false testimony is given in order
to deceive judges and juries and to prevent the just
determination of causes pending in the courts. The fundamental
purpose and the fundamental effect of each of these offenses--
perjury, obstruction of justice and bribery alike--is to defeat
the proper administration of government. They all are crimes of
corruption aimed at substituting private advantage for the
public interest. They all undermine the integrity of the
functions of government.
The use of the impeachment process against misconduct which
undermines the integrity of government is a central focus of
two reports prepared in 1974 on the background and history of
impeachment, and I would humbly bring these reports to your
attention. I commend them to you for your consideration. One of
the reports was prepared by the staff of the Nixon impeachment
inquiry. The other was produced by the Bar of the City of New
York. Both of these reports have gained bipartisan respect over
the last 25 years for their balanced and judicious approach.
They provide a well-informed analysis of the key issues related
to impeachments. In doing so they stand in stark contrast to
the recent pronouncements by some academics which substitute
political opinion for scholarly analysis.
A review of these two important documents from 1974
supports the conclusion that the articles before the Senate set
forth compelling grounds for the conviction and removal of
President Clinton.
There has been a great deal of comment on the report on
``Constitutional Grounds for Presidential Impeachment''
prepared in February 1974 by the staff of the Nixon impeachment
inquiry. Those who assert that the charges against the
President do not rise to the level of ``high crimes and
misdemeanors'' have pulled some phrases from that report out of
context to support their position. In fact, the general
principles concerning grounds for impeachment and removal set
forth in that report indicate that perjury and obstruction of
justice are high crimes and misdemeanors.
Consider this key language from the staff report describing
the type of conduct which gives rise to the proper use of the
impeachment and removal power:
In the report, they said:
The emphasis has been on the significant effects of the
conduct--undermining the integrity of office, disregard of
constitutional duties and oath of office, arrogation of power,
abuse of the governmental process, adverse impact on the system
of government.
The report goes on to state:
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.
Perjury and obstruction of justice, I submit to you,
clearly ``undermine the integrity of office.'' I ask you, if
these offenses do not undermine the integrity of office, what
offenses would?
Their unavoidable consequence is to erode respect for the
office of the President and to interfere with the integrity of
the administration of justice. Such offenses are ``seriously
incompatible'' with the President's ``constitutional duties and
oath of office,'' and with the principles of our government
establishing the rule of law. Moreover, they are offenses which
have a direct and serious ``adverse impact on the system of
government.'' Obstruction of justice is by definition an
assault on the due administration of justice--which is a core
function of our system of government. Perjury has the same
purpose and effect.
The second report, to which I have referred, the thoughtful
report on ``The Law of Presidential Impeachment'' prepared by
the Association of the Bar of the City of New York in January
of 1974 also places a great deal of emphasis on the corrosive
impact of presidential misconduct on the integrity of
government. The report summarizes the proper basis for
impeachment and removal in this way. It says:
It is our conclusion, in summary, that the grounds for
impeachment are not limited to or synonymous with crimes. . . .
Rather, we believe that acts which undermine the integrity of
government are appropriate grounds whether or not they happen
to constitute offenses under the general criminal law. In our
view, the essential nexus to damaging the integrity of
government may be found in acts which constitute corruption in,
or flagrant abuse of the powers of, official position. It may
also be found in acts which, without directly affecting
governmental processes, undermine that degree of public
confidence in the probity of executive and judicial officers
that is essential to the effectiveness of government in a free
society.
Perjury and obstruction of justice--serious felony offenses
against the United States--by a President are acts of
corruption which without doubt ``undermine that degree of
public confidence in the probity of the [the President] that is
essential to the effectiveness of government in a free
society.'' Such acts are ``high crimes and misdemeanors''
because they inevitably subvert the respect for law which is
essential to the well-being of our constitutional system.
A similar point is made by a contemporary commentator who
has argued:
. . . [T]here are certain statutory crimes that, if
committed by public officials, reflect such lapses of judgment,
such disregard for the welfare of the state, and such lack of
respect for the law and the office held that the occupants may
be impeached and removed, for lacking the minimal level of
integrity and judgment sufficient to discharge the
responsibilities of office.
Such a lack of the minimal level of integrity necessary for
the proper discharge of the duties of the Presidency is
evidenced by the commission of the statutory crimes of perjury
and obstruction of justice.
Contrary to the claim that has been made by some, the issue
before the Senate is not whether the offenses of this President
will destroy our Constitution. We all know that our system of
government will not come tumbling down because of the corrupt
conduct of William Jefferson Clinton. Our Republic will survive
the crimes of this President. No one doubts that. Of course,
the same could be said of all the other Federal officials who
have been impeached and removed from office. And the same might
be said of the crimes--serious as they were--of President
Richard Nixon.
But the removal power is not restricted to offenses that
would directly destroy our Constitution or system of
government. The removal power is not so limited that it can be
brought into play only when the immediate destruction of our
institutions is threatened.
On the contrary, the removal power should be understood as
a positive grant of authority to the Senate to preserve,
protect and strengthen our constitutional system against the
misconduct of federal officials when that misconduct would
subvert, undermine, or weaken the institutions of our
government. It is a power that has the positive purpose of
maintaining the health and well-being of our system of
government.
This power--the awesome power of removal vested in the
Senate--carries with it an awesome responsibility. This power
imposes on the Senate the responsibility to exercise its
judgment in establishing the standards of conduct that are
necessary to preserve, protect, and strengthen the Constitution
which has served the people of the United States so well for
more than two centuries.
Thus, the crucial issue before the Senate is what standard
will be set for the conduct of the President of the United
States. In this case, the Senate necessarily will establish
such a standard. And make no mistake about it: the choice the
Senate makes in this case will have consequences reverberating
far into the future of our Republic. Will a President who has
committed serious offenses against the system of justice be
called to account for his crimes, or will his offenses be
regarded as of no constitutional consequence? Will a standard
be established that such crimes by a President will not be
tolerated, or will the standard be that--at least in some
cases--a President may ``remain in office with all his infamy''
after lying under oath and obstructing justice?
Regardless of the choice the Senate makes--whether it
acquits or convicts the President--a standard will be
established, and that standard will become an important part of
our constitutional law of this Nation. The institutions of our
Government will either be strengthened or weakened as a result.
And if the Senate acquits this President, the conduct of future
Presidents will inevitably be affected in ways that we cannot
now confidently predict.
I would now like to take a very few minutes to examine some
of the other specific arguments that have been made that this
is not a proper case for use of the removal power.
Some have suggested that in setting a standard in this case
the Senate should be guided by the popularity of the President.
It is urged that a popular President--regardless of the
offenses he may have committed--should not be removed from
office. Such a view finds no support however, in our
Constitution. On the contrary, the framers understood that a
popular President might be guilty of crimes requiring his
removal from office.
That is why they included the power of impeachment and
removal in the Constitution. And that, no doubt, is why they
specifically provided that an impeached official who was
convicted and removed might also be perpetually disqualified
``to hold and enjoy any office of honor, trust, or profit under
the United States.''
The potential threat posed to our institutions by
Presidential misconduct would, in fact, be heightened by the
popularity of the offending President. The harmful influence
and example of a popular President would pose a far greater
danger to the well-being of our Government than the influence
and example of an unpopular President.
Moreover, the very framework of our Constitution
establishing a representative democracy is at odds with the
notion that the institutions of our Government should respond
mechanically to the changing tides of public opinion. The
Senate, in particular, was designed to act on the basis of the
long-term best interests of the Nation rather than short-term
political considerations.
When he was tried by the Senate 130 years ago, President
Andrew Johnson was overwhelmingly unpopular. If the Senate had
used Presidential popularity as a guide in the Johnson case,
there is no doubt that he would have been convicted and removed
from office. Yet today there is widespread agreement that such
action by the Senate would have been an abuse of the
constitutional process, and those who refused to use
Presidential popularity as their guide are hailed as great
statesmen and heroes. Those Senators who then stood against the
tide of public sentiment today are revered as champions of
constitutional government.
A popular President guilty of high crimes and misdemeanors
should no more remain in office than an unpopular President
innocent of wrongdoing should be removed from office. Under the
standards of the Constitution, popularity is not a sufficient
guide.
Nor should the Senate be swayed by the claims that setting
a standard adverse to this President will weaken the
institution of the Presidency. Describing the role of
impeachment under our Constitution, Arthur M. Schlesinger,
Jr.--who I will candidly admit takes a different view of the
matter today--wisely observed that:
The genius of impeachment lay in the fact that it could
punish the man without punishing the office. For, in the
Presidency as elsewhere, power was ambiguous: the power to do
good meant also the power to do harm, the power to serve the
republic also the power to demean and defile it.
Rather than weakening the Presidency, the removal from
office of a President who has violated his constitutional duty
and oath of office will reestablish the integrity of the
Presidency. Setting a standard against the acts of perjury and
obstruction of justice committed by President Clinton will
reaffirm the dignity and the honor of the Office of Chief
Executive under our Constitution. That will strengthen--not
weaken--the institution of the Presidency.
It has even been argued that the impeachment and removal of
President Clinton would result in the virtual alteration of our
system of government. It is contended that following the
constitutional process in this case would move us toward a
transformation of our Constitution: a quasi-parliamentary
system, with the President serving at the pleasure of the
legislative branch, would replace the framework based on the
separation of powers.
I am, frankly, reluctant to dignify this argument by
responding to it. President Nixon was driven from office for
his crimes under threat of impeachment and removal. The
disruption of the framework of our Government did not ensue.
President Clinton may be removed from office for his crimes.
The constitutional system will remain sound.
Who has so little confidence in the durability of the
institutions of our Government that he would allow a President
guilty of perjury and obstruction of justice to remain in
office simply on the basis of a fanciful and irrational fear of
the supposed consequences of his removal?
The Constitution contains wise safeguards against the
misuse of the impeachment and removal power. As a practical
matter, as we all know, the requirement of a two-thirds vote
for conviction virtually ensures that a President will only be
removed when a compelling case for removal has been made. And
the periodic accountability to the people of Members of both
the House and the Senate serves as a check on the improvident
use of the impeachment power for unworthy or insubstantial
reasons. Those who would abuse the power of impeachment and
removal will be deterred by the certain knowledge that they
ultimately must answer to the people.
But, of course, the ultimate safeguard against the abuse of
this power is in the sober deliberation and sound judgment of
the Senate itself. The framers of the Constitution vested the
removal power and responsibility in the Senate because, as
Hamilton observed, they ``thought the Senate the most fit
depositary of this important trust.'' The Senate was, in the
view of the framers, uniquely qualified to exercise the ``awful
discretion, which a court of impeachment must necessarily
have.'' As Hamilton explained:
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.
Ladies and gentlemen of the Senate, this is the great trust
which the Constitution has reposed in you. It is a trust you
exercise not only for those who elected you but for all other
Americans, including generations yet unborn.
As you carry out this trust, we do not suggest that you
hold this President or any President to a standard of
perfection. We do not assert that this President or any
President be called to account before the Senate for his
personal failings or his sins. We will leave the President's
sins to his family and to God. Nor do we suggest that this
President or any President should be removed from office for
offenses that are not serious and grave.
But we do submit that when this President, or any
President, has committed serious offenses against the system of
justice--offenses involving the stubborn and calculated choice
to place personal interest ahead of the public interest--he
must not be allowed to act with impunity.
Mr. Manager Graham has reviewed the recent precedents of
the Senate, establishing that offenses such as those committed
by this President are grounds for removal from office. Those
precedents, which were set in the impeachment trials of Federal
judges, are rejected as totally irrelevant by the President's
lawyers. They urge that a lower standard of integrity be
established in this case for the President of the United States
than the standard which the Senate has already established for
Federal judges.
But the Constitution contains a single standard for the
exercise of the impeachment and removal power. You have heard
it before, but I will repeat. Article II, section 4, provides:
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.
And there is nothing in the Constitution suggesting that
criminal offenses which constitute high crimes and misdemeanors
if committed by one Federal official will not be high crimes
and misdemeanors if committed by another Federal official.
There is nothing in the Constitution to suggest that the
President should be especially insulated from the just
consequences of his criminal conduct.
Justice Joseph Story warned long ago against countenancing
``so absolute a despotism of opinion and practice, which might
make that a crime at one time, or in one person, which would be
deemed innocent at another time, or in another person.''
The Senate should heed the warning of Justice Story and
refuse to arbitrarily establish a different standard for
judging William Jefferson Clinton than the standard it has
imposed already on others brought before the bar of the Senate
sitting as a Court of Impeachment.
The Senate has never accepted the view that a separate
standard applies to the impeachment and removal of Federal
judges. Indeed, the Senate has specifically rejected attempts
to establish such a separate standard for judicial officers.
Every judge who has been impeached and removed from office has
been found guilty of treason, bribery, or other high crimes and
misdemeanors.
Contrary to the argument advanced by some, the
constitutional provision that judges ``shall hold their offices
during good Behaviour'' does not establish any authority to
remove a judge for misconduct other than for those offenses
involving treason, bribery, or other high crimes and
misdemeanors. Rather than establishing a standard for removal,
the ``good behavior'' clause simply provides for life tenure
for all article III judges. To accept the ``good behavior''
clause, I would caution you to accept it as a separate basis
for the removal of Federal judges would pose a serious threat
to the independence of the judiciary under our Constitution.
Members of the Senate, the integrity of the administration
of justice depends not only on the integrity of judges, but
also on the integrity of the President. A President who has
committed perjury and obstruction of justice is hardly fit to
oversee the enforcement of the laws of the United States. As
Professor Jonathan Turley has pointed out:
As Chief Executive the President stands as the ultimate
authority over the Justice Department and the Administration's
enforcement policies. It is unclear how prosecutors can
legitimately threaten, let alone prosecute, citizens who have
committed perjury or obstruction of justice under circumstances
nearly identical to the President's. Such inherent conflict
will be even greater in the military cases and the President's
role as Commander-in-Chief.
It would indeed be anomalous for the Senate to now hold the
President of the United States to a lower standard of integrity
than the standard applied to members of the judiciary. There is
no sensible constitutional rationale for such a lower standard.
Who could successfully defend the view that in the
framework established by our Constitution the integrity of the
Chief Executive is of less importance than the integrity of any
one of the hundreds of Federal judicial officers? It is the
President who appoints Justices of the Supreme Court and all
other Federal judges. It is the President who appoints the
Attorney General. It is the President who appoints the Director
of the Federal Bureau of Investigation. It is the President who
has the unreviewable power to grant pardons.
The power of the President far surpasses the power of any
other individual under our Constitution. The authority and
discretion vested in him under the Constitution and laws is
great and wide-ranging. The requirement that he act with
integrity and that he be a person of integrity is essential to
the integrity of our system of government.
Soon after the adoption of the Constitution, Alexander
Hamilton wrote that ``an inviolable respect for the
Constitution and the Laws'' is the ``most sacred duty and the
greatest source of security in a Republic.'' Hamilton
understood that respect for the Constitution itself grows out
of a general respect for the law. And he understood the
essential connection between respect for the law and the
maintenance of liberty in a Republic. Without respect for the
law, the foundation of our Constitution is not secure. Without
respect for the law, our freedom is at risk. Thus, according to
Hamilton, those who ``set examples which undermine or subvert
the authority of the laws lead us from freedom to slavery. . .
.''
Early in this century, Justice Brandeis spoke of the harm
to our system of Government which occurs when officials of the
Government act in a lawless manner. Justice Brandeis said:
Decency, security and liberty alike demand that government
officials shall be subjected to the same rules of conduct that
are commands to the citizens. In a government of laws,
existence of the government will be imperilled if it fails to
observe the law scrupulously. Our Government is the potent, the
omnipresent teacher. For good or 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.
To conclude, I would observe in the case before it now, the
Senate must decide if William Jefferson Clinton as President
will be ``subjected to the same rules of conduct that are
commands to the citizens.'' It is no answer that he may one day
after leaving office perhaps be called to account in a criminal
court proceeding somewhere. Justice delayed is justice denied.
Because he has taken and violated the oath as President,
William Jefferson Clinton is answerable for his crimes to the
Senate here and now.
Will he as President be vindicated by the Senate in the
face of crimes for which other citizens are adjudicated felons
and sent to prison? Or will this Senate, acting in accordance
with the provisions of the Constitution, bring him as President
into submission to the commands of the law? Will the Senate
give force to the constitutional provision for impeachment and
removal which Justice Story said ``compels the chief
magistrate, as well as the humblest citizen, to bend to the
majesty of the laws''?
``For good or ill'' William Jefferson Clinton ``teaches the
whole people by [his] example'' as President. The President is
not only the head of Government but also the head of State. As
President he has a unique ability to command the attention of
the whole Nation. In his words and his deeds he represents the
American people and the system of government in a way that no
other American can. Great honor and respect accrue to him by
virtue of the high office he holds. The influence of his
example is far-reaching and profound.
By his conduct, President William Jefferson Clinton has set
an example the Senate cannot ignore. By his example he has set
a dangerous and subversive standard of conduct. His calculated
and stubbornly persistent misconduct while serving as President
of the United States has set a pernicious example of
lawlessness--an example which by its very nature subverts
respect for the law. His perverse example has the inevitable
effect of undermining the integrity of both the office of
President and the administration of justice.
Ladies and gentlemen of the Senate, I humbly submit to you
that his harmful example as President must not stand. The
maintenance in office of a President guilty of perjury and
obstruction of justice is inconsistent with the maintenance of
the rule of law.
In light of the historic purpose of impeachment, the
offenses charged against the President demand that the Senate
convict and remove him. He must not ``remain in office with all
his infamy.'' Our Constitution requires that this President who
has shown such disrespect for the truth, such disrespect for
the law, and such disrespect for the dignity of his high office
be brought to justice for his high crimes and misdemeanors.
Thank you.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
recess
Mr. LOTT. Mr. Chief Justice, if there is no objection, I
ask unanimous consent that the court of impeachment proceedings
stand in recess for one hour. We will return at 2:10 p.m.
There being no objection, at 1:08 p.m., the Senate recessed
until 2:11 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to
proceed now with the next manager. I believe it is Mr. Manager
Gekas.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Gekas.
Mr. Manager GEKAS. Mr. Chief Justice, the President's
counsel, Members of the House who form our group of managers,
and Members of the Senate, we bring you to what now may be the
culmination of the work and effort of the managers and of the
House of Representatives for, and what is fast closing in to
be, your final consideration. And that is true--the moment of
truth is fast approaching.
That moment of truth will swoop down on you at some point
in the near future, at which time the millions of words that
have been spoken thus far, the thousands of pages of documents,
hundreds of exhibits, and dozens of individuals who have been
involved in the preparation, annotation, and accumulation of
all the data and evidence--all of that will be funneled into
that last moment you will have right before you cast that final
vote. That is an awesome moment in the history of this Chamber,
in the personal history of your own careers in public service,
and of your own life, as well, your personal life, your
surroundings, your family, all that means anything and
everything to you. That moment of truth encompasses all of that
in one fell swoop at that final time that is upon us.
We would not have even had to contemplate this, nor would
you have had to, if very early on in the factual situation that
arose in this case President Clinton had faced his moment of
truth. As I pointed out yesterday, that first moment of truth
that faced the President in the legal proceedings that were to
engulf him at a later point was his answers, the answers that
affixed to that first set of interrogatories under oath. The
moment of truth was staring him right in the face, and if he
would have acknowledged it at that moment, had paid faith and
allegiance to that moment, we would not be arguing here today,
nor would we have even heard of a possible impeachment inquiry.
But the President chose to sweep away that moment of truth that
was at hand and proceeded down the course that has led us to
this moment.
In the words of our colleagues who made magnificent
presentations of the facts and law to you, the words ``truth''
and ``fairness'' were some of the strongest and most profound
that we heard in various degrees in touching upon various
subjects that were important to our presentation. When I heard
my colleagues emphasize those words, it dawned on me that the
element of fairness is something which I submit to you and
certify to you that these managers, the members of the
committee who prepared this case, exalted in making certain
would apply to their endeavors and to all that we would present
to you--fairness.
When the record of the independent counsel, the referral,
reached our doorsteps back in September of 1997 and we first
read the details and allegations contained therein, we did not,
as some people began to accuse and to orate, adopt 100 percent
of what the independent counsel said were the allegations and
accept them as fact, and then move on and skip from September
to this moment, not having used our intellect, our sympathies,
our sense of right, our sense of wrong, our sense of fairness,
our elements of truth, our experience, our own intellect, and
our own consciences. We didn't set all of those aside and take
the referral of Kenneth Starr and make that the final moment
that precedes your moment of truth. Everyone should know that.
But it is not recognized. We have been pilloried many times
over the course of these proceedings on the notion that we
simply adopted that referral and walked with it into the Senate
Chamber.
One thing has to be said right at the outset. When I saw
one allegation of the independent counsel that was encompassed
around the question of executive privilege, an allegation that
the assertion by President Clinton of executive privilege in
the context of all that had transpired in this case constituted
an abuse of power, I must tell you that that hit me right
between the eyes. I could not, by even just reading it, accept
it at face value. From that moment until this, I had serious,
grave doubts that we should embark upon a course in which we
would somehow denigrate the issue and privilege known as
``executive privilege.''
As I worried about this and as I moved on through the
process, trying to do my duty, along with everyone else, there
came a time in the deliberations of our committee, our managers
group, that we felt--and we acted on that feeling--that
executive privilege is something that is owed to the President,
and that we cannot fairly strip that away from him or in any
way diminish the power and the usability of executive
privilege. We felt that that was a trapping and a power of the
Executive, of the President of the United States, which, no
matter how it is exerted, or thereafter possibly set aside by
the court, which is always a possibility, and history has shown
that it has occurred.
Nevertheless, the exertion of it, the assertion of it, the
use of it, the feel for it that the President of the United
States must have and should have in the first instance, to
assert it, should not be a part of our criticism, our
projection of this case.
We felt pretty strongly about it, and we took action on
that front by deciding among ourselves that one of the proposed
articles--and that was bound to reach you if we had not acted
as we did--we decided that we were going to remove that from
the allegations in any of the articles of impeachment and not
refer to it, except in the context in which I am referring to
it, which is reporting to you what happened with that
particular issue.
We did that in the face of the knowledge that in all our
readings, in all our literature, we noted that when President
Nixon attempted to use executive privilege, it was soundly
criticized, and part of the impeachment process carried his
alleged abuse of executive privilege as one of the tenets of
that proceeding. And the report shows executive privilege as
being ill-used by President Nixon.
But here is the point. The managers and I and every Member
of the Senate, every individual who is with us here today
reveres the Office of the Presidency. We respect the Office of
the Presidency. The Presidency is we. The Presidency is
America. The Presidency is the banner under which we all work
and live and strive in this Nation. We revere the Presidency.
Any innuendo, or any kind of impulse that anyone has to
attribute any kind of motivation on the part of these men of
honor who have prepared this case for you today on any whim on
their part other than to do their constitutional duty should be
rebuffed at every conversation, at every meeting, at every
writing that will ultimately flow from the proceedings upon
which we have embarked. We revere the Presidency. As a matter
of fact, when next week we face the prospect of the President
of the United States entering the House of Representatives to
deliver his State of the Union message, we will greet the
President. We will accord him the respect for the office which
he holds. He is our President. He occupies the Presidency. And
we will honor that. And so should we all.
But we are capable of and must, in the face of the solemn
duty that we have, compartmentalize in the purest sense in
greeting the President and applauding his entrance into the
State of the Union message. As we will accord him that
privilege, we do not set aside the impeachment inquiry. We do
not set aside the serious charges that are hoisted against him
at that juncture, because we will resume the consideration of
them in due course. But in the meantime, we compartmentalize
ourselves as Americans recognizing that he holds the most
powerful, most respected, and most admired office on the face
of the globe. That is part of our duty, as it is our duty to
impart our knowledge and our work, our theories, and our
analysis to the impeachment proceedings which are at hand.
``These are times that try men's souls,'' someone said. It
was not my mother. And it is true. But anyone who can feel that
the final votes that will take place on the part of each
individual Member of the Senate, that a vote for conviction is
based on a distaste for Bill Clinton, hatred of Bill Clinton--
that kind of vote for conviction should never be recognized or
countenanced, and history will condemn any individual who does
that. And if the votes at the last moment, at this moment of
truth, are based on an admiration of President Clinton, of
friendship with President Clinton, a deep tie to and with the
President, on family and community and national matters, a vote
of acquittal should not be based on that. But only the Senate
and each individual conscience will determine how that final
vote is cast.
We cannot account for the friendship or enmity that might
exist with and for President Clinton. All we can do is to do
the job that was thrust upon us, that was placed in our hands
by a statute that this Congress created--that independent
counsel statute. The Congress said that we had to listen to the
referral, to accept the referral. The Congress said that we
must look towards whatever recommendations might be contained
in that. It was the Congress, our Congress--many of you who
voted for that statute--which mandated that we consider all of
this. We did not simply walk around one day and seize upon a
moment of deep thought and say: Let's impeach the President;
let's find something upon which we can base a full 6 months'
inquiry into the President's actions in front of a court.
This was a duty, much as it is your duty to stay here and
listen to what I am saying. The duty I have of presenting it to
you and speaking to you is born of the same statute and of the
same process and of the same constitutional background that we
all share.
So it worries me and us that any awkward motivation would
be attributed to any one of us or collectively to us. And once
you render your vote, I am not going to question whether it was
done out of blind loyalty or enmity or friendship with the
President; I am going to judge it as an American citizen, a
Member of the House of Representatives, a Member of Congress,
an interested community leader, and, last but not least, as a
pure American citizen eager to do one's duty.
As the moment of truth approaches, there is only one
speaker left for us in the Senate Chamber here to contemplate,
and that is the summation to be given by the esteemed chairman
of our committee. You should know, as we all feel, that the
most stringent duty that he ever performed, the gentleman from
Illinois, was to manage the managers. But he did that just as
well and as profoundly as he has approached every single facet
of this case. For as he sums up, know for a certainty that he
brings to the podium our collective thoughts, our collective
emotions, our passions for our work and our duty, and with an
eye towards serving you, as we serve our constituents, as we
serve the Congress, as we serve America. We are 20 minutes
closer now to that moment of truth. Keep in mind your own
histories, the history of your relationship with your
colleagues in the Congress, and above all, the duty to the
United States.
Mr. Hyde.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Hyde.
Mr. Manager HYDE. Mr. Chief Justice, counsel for the
President, distinguished Members of the Senate, 136 years ago,
at a small military cemetery in Pennsylvania, one of Illinois'
most illustrious sons asked a haunting question--whether a
nation conceived in liberty and dedicated to the proposition
that all men are created equal can long endure. America is an
experiment never finished. It is a work in progress. And so
that question has to be answered by each generation for itself,
just as we will have to answer whether this Nation can long
endure.
This controversy began with the fact that the President of
the United States took an oath to tell the truth in his
testimony before the grand jury, just as he had on two prior
occasions sworn a solemn oath to preserve, protect, and defend
the Constitution and to faithfully execute the laws of the
United States.
One of the most memorable aspects of this proceeding was
the solemn occasion wherein every Senator in this Chamber took
an oath to do impartial justice under the Constitution.
But I must say, despite massive and relentless efforts to
change the subject, the case before you Senators is not about
sexual misconduct, infidelity or adultery--those are private
acts and none of our business. It is not even a question of
lying about sex. The matter before this body is a question of
lying under oath. This is a public act.
The matter before you is a question of the willful,
premeditated, deliberate corruption of the Nation's system of
justice, through perjury and obstruction of justice. These are
public acts, and when committed by the chief law enforcement
officer of the land, the one who appoints every United States
district attorney, every Federal judge, every member of the
Supreme Court, the Attorney General--they do become the concern
of Congress.
That is why your judgment, respectfully, should rise above
politics, above partisanship, above polling data. This case is
a test of whether what the Founding Fathers described as
``sacred honor'' still has meaning in our time: two hundred
twenty-two years after those two words--``sacred honor''--were
inscribed in our country's birth certificate, our national
charter of freedom, our Declaration of Independence.
Every school child in the United States has an intuitive
sense of the ``sacred honor'' that is one of the foundation
stones of the American house of freedom. For every day, in
every classroom in America, our children and grandchildren
pledge allegiance to a nation ``under God.'' That statement is
not a prideful or arrogant claim. It is a statement of
humility: all of us, as individuals, stand under the judgment
of God, or the transcendent truths by which we hope, finally,
to be judged.
So does our country.
The Presidency is an office of trust. Every public office
is a public trust, but the Office of President is a very
special public trust. The President is the trustee of the
national conscience. No one owns the Office of President, the
people do. The President is elected by the people and their
representatives in the electoral college. And in accepting the
burdens of that great office, the President, in his inaugural
oath, enters into a covenant--a binding agreement of mutual
trust and obligation--with the American people.
Shortly after his election and during his first months in
office, President Clinton spoke with some frequency about a
``new covenant'' in America. In this instance, let us take the
President at his word: that his office is a covenant--a solemn
pact of mutual trust and obligation--with the American people.
Let us take the President seriously when he speaks of
covenants: because a covenant is about promise-making and
promise-keeping. For it is because the President has defaulted
on the promises he made--it is because he has violated the
oaths he has sworn--that he has been impeached.
The debate about impeachment during the Constitutional
Convention of 1787 makes it clear that the Framers of the
Constitution regarded impeachment and removal from office on
conviction as a remedy for a fundamental betrayal of trust by
the President. The framers had vested the Presidential office
with great powers. They knew that those powers could be--and
would be--abused if any President were to violate, in a
fundamental way, the oath he had sworn to faithfully execute
the Nation's laws.
For if the President did so violate his oath of office, the
covenant of trust between himself and the American people would
be broken.
Today, we see something else: that the fundamental trust
between America and the world can be broken, if a Presidential
Perjurer represents our country in world affairs. If the
President calculatedly and repeatedly violates his oath, if the
President breaks the covenant of trust he has made with the
American people, he can no longer be trusted. And, because the
Executive plays so large a role in representing the country to
the world, America can no longer be trusted.
It is often said that we live in an age of increasing
interdependence. If that is true, and the evidence for it is
all around us, then the future will require an even stronger
bond of trust between the President and the Nation because with
increasing interdependence comes an increased necessity of
trust.
This is one of the basic lessons of life. Parents and
children know this. Husbands and wives know it. Teachers and
students know it, as do doctors and patients, suppliers and
customers, lawyers and clients, clergy and parishioners: the
greater the interdependence, the greater the necessity of
trust; the greater the interdependence, the greater the
imperative of promise-keeping.
Trust, not what James Madison called the ``parchment
barriers'' of laws, is the fundamental bond between the people
and their elected representatives, between those who govern and
those who are governed. Trust is the mortar that secures the
foundations of the American house of freedom. And the Senate of
the United States, sitting in judgment in this impeachment
trial, should not ignore, or minimize, or dismiss the fact that
the bond of trust has been broken, because the President has
violated both his oaths of office and the oath he took before
his grand jury testimony.
In recent months, it has often been asked--so what? What is
the harm done by this lying under oath, by this perjury? Well,
what is an oath? An oath is an asking almighty God to witness
to the truth of what you are saying. Truth telling--truth
telling is the heart and soul of our justice system.
I think the answer would have been clear to those who once
pledged their sacred honor to the cause of liberty. The answer
would have been clear to those who crafted the world's most
enduring written constitution.
No greater harm can be done than breaking the covenant of
trust between the President and the people; among the three
branches of our Government; and between the country and the
world.
For to break that covenant of trust is to dissolve the
mortar that binds the foundation stones of our freedom into a
secure and solid edifice. And to break that covenant of trust
by violating one's oath is to do grave damage to the rule of
law among us.
That none of us is above the law is a bedrock principle of
democracy. To erode that bedrock is to risk even further
injustice. To erode that bedrock is to subscribe, to a ``divine
right of kings'' theory of governance, in which those who
govern are absolved from adhering to the basic moral standards
to which the governed are accountable. We must never tolerate
one law for the ruler and another for the ruled. If we do, we
break faith with our ancestors from Bunker Hill, Lexington and
Concord to Flanders Field, Normandy, Iwo Jima, Panmunjom,
Saigon and Desert Storm.
Let us be clear: The vote that you are asked to cast is, in
the final analysis, a vote about the rule of law.
The rule of law is one of the great achievements of our
civilization. For the alternative to the rule of law is the
rule of raw power. We here today are the heirs of 3,000 years
of history in which humanity slowly, painfully and at great
cost, evolved a form of politics in which law, not brute force,
is the arbiter of our public destinies.
We are the heirs of the Ten Commandments and the Mosaic
law: a moral code for a free people who, having been liberated
from bondage, saw in law a means to avoid falling back into the
habit of slaves. We are the heirs of Roman law: the first legal
system by which peoples of different cultures, languages,
races, and religions came to live together in a form of
political community. We are the heirs of the Magna Carta, by
which the freeman of England began to break the arbitrary and
unchecked power of royal absolutism. We are the heirs of a long
tradition of parliamentary development, in which the rule of
law gradually came to replace royal prerogative as the means
for governing a society of free men and women. Yes, we are the
heirs of 1776, and of an epic moment in human affairs when the
founders of this Republic pledged their lives, fortunes and,
yes, their sacred honor, to the defense of the rule of law. We
are the heirs of a tragic civil war, which vindicated the rule
of law over the appetites of some for owning others. We are the
heirs of the 20th century's great struggles against
totalitarianism, in which the rule of law was defended at
immense cost against the worst tyrannies in human history. The
``rule of law'' is no pious aspiration from a civics textbook.
The rule of law is what stands between all of us and the
arbitrary exercise of power by the state. The rule of law is
the safeguard of our liberties. The rule of law is what allows
us to live our freedom in ways that honor the freedom of others
while strengthening the common good.
Lying under oath is an abuse of freedom. Obstruction of
justice is a degradation of law. There are people in prison for
just such offenses. What in the world do we say to them about
equal justice if we overlook this conduct in the President?
Some may say, as many have said in recent months, that this
is to pitch the matter too high. The President's lie, it is
said, was about a ``trivial matter;'' it was a lie to spare
embarrassment about misconduct on a ``private occasion.''
The confusing of what is essentially a private matter, and
none of our business, with lying under oath to a court and a
grand jury has been only one of the distractions with which we
have had to deal.
Senators, as men and women with a serious experience of
public affairs, we can all imagine a situation in which a
President might shade the truth when a great issue of the
national interest or the national security was at stake. We
have all been over that terrain. We know the thin ice on which
any of us skates when blurring the edges of the truth for what
we consider a compelling, demanding public purpose.
Morally serious men and women can imagine circumstances, at
the far edge of the morally permissible, when, with the gravest
matters of national interest at stake, a President could shade
the truth in order to serve the common good. But under oath,
for a private pleasure?
In doing this, the Office of President of the United States
has been debased and the justice system jeopardized.
In doing this, he has broken his covenant of trust with the
American people.
The framers also knew that the Office of President of the
United States could be gravely damaged if it continued to be
unworthily occupied. That is why they devised the process of
impeachment by the House and trial by the Senate. It is, in
truth, a direct process. If, on impeachment, the President is
convicted, he is removed from office--and the office itself
suffers no permanent damage. If, on impeachment, the President
is acquitted, the issue is resolved once and for all, and the
office is similarly protected from permanent damage.
But if, on impeachment, the President is not convicted and
removed from office despite the fact that numerous Senators are
convinced that he has, in the words of one proposed resolution
of censure, ``egregiously failed'' the test of his oath of
office, ``violated the trust of the American people,'' and
``dishonored the office which they entrusted to him,'' then the
Office of the Presidency has been deeply and perhaps
permanently damaged.
And that is a further reason why President Clinton must be
convicted of the charges brought before you by the House and
removed from office. To fail to do so, while conceding that the
President has engaged in egregious and dishonorable behavior
that has broken the covenant of trust between himself and the
American people, is to diminish the Office of President of the
United States in an unprecedented and unacceptable way.
Senators, please permit me a word on my own behalf and on
behalf of my colleagues of the House. It is necessary to
clarify an important point.
None of us comes to this Chamber today without a profound
sense of our own responsibilities in life, and of the many ways
in which we have failed to meet those responsibilities, to one
degree or another. None of us comes before you claiming to be a
perfect man or a perfect citizen, just as none of you imagines
yourself perfect. All of us, Members of the House and Senate,
know that we come to this difficult task as flawed human
beings, under judgment.
That is the way of this world: flawed human beings must,
according to the rule of law, judge other flawed human beings.
But the issue before the Senate of the United States is not
the question of its own Members' personal moral condition. Nor
is the issue before the Senate the question of the personal
moral condition of the Members of the House of Representatives.
The issue here is whether the President has violated the rule
of law and thereby broken his covenant of trust with the
American people. This is a public issue, involving the gravest
matter of the public interest. And it is not affected, one way
or another, by the personal moral condition of any Member of
either House of Congress, or by whatever expressions of
personal chagrin the President has managed to express.
Senators, we of the House do not come before you today
lightly. And, if you will permit me, it is a disservice to the
House to suggest that it has brought these articles of
impeachment before you in a mean-spirited or irresponsible way.
That is not true.
We have brought these articles of impeachment because we
are convinced, in conscience, that the President of the United
States lied under oath; that the President committed perjury on
several occasions before a Federal grand jury. We have brought
these articles of impeachment because we are convinced, in
conscience, that the President willfully obstructed justice and
thereby threatened the legal system he swore a solemn oath to
protect and defend.
These are not trivial matters. These are not partisan
matters. These are matters of justice, the justice that each of
you has taken a solemn oath to serve in this trial.
Some of us have been called ``Clinton-haters.'' I must tell
you, distinguished Senators, that this impeachment is not, for
those of us from the House, a question of hating anyone. This
is not a question of whom we hate. It is a question of what we
love. And among the things we love is the rule of law, equal
justice before the law, and honor in our public life. All of us
are trying as hard as we can to do our duty as we see it--no
more and no less.
Senators, this trial is being watched around the world.
Some of those watching, thinking themselves superior in their
cynicism, wonder what it is all about. But others know.
Political prisoners know that this is about the rule of
law--the great alternative to arbitrary and unchecked state
power.
The families of executed dissidents know that this is about
the rule of law--the great alternative to the lethal abuse of
power by the state.
Those yearning for freedom know that this is about the rule
of law--the hard-won structure by which men and women can live
by their God-given dignity and secure their God-given rights in
ways that serve the common good.
If they know this, can we not know it?
If, across the river in Arlington Cemetery, there are
American heroes who died in defense of the rule of law, can we
give less than the full measure of our devotion to that great
cause?
I wish to read you a letter I recently received that
expresses my feelings far better than my poor words:
Dear Chairman Hyde: My name is William Preston Summers. How are you
doing? I am a third grader in room 504 at Chase Elementary School in
Chicago. I am writing this letter because I have something to tell you.
I have thought of a punishment for the president of the United States
of America. The punishment should be that he should write a 100 word
essay by hand. I have to write an essay when I lie. It is bad to lie
because it just gets you in more trouble. I hate getting in trouble.
It is just like the boy who cried wolf, and the wolf ate the boy.
It is important to tell the truth. I like to tell the truth because it
gets you in less trouble. If you do not tell the truth people do not
believe you.
It is important to believe the president because he is a important
person. If you can not believe the president who can you believe. If
you have no one to believe in then how do you run your life. I do not
believe the president tells the truth anymore right now. After he
writes the essay and tells the truth, I will believe him again.
William Summers.
Then there is a P.S. from his dad:
Dear Representative Hyde: I made my son William either write you a
letter or an essay as a punishment for lying. Part of his defense for
his lying was the President lied. He is still having difficulty
understanding why the President can lie and not be punished.
Bobby Summers.
Mr. Chief Justice and Senators, on June 6, 1994, it was the
50th anniversary of the Americans landing at Normandy. I went
ashore at Normandy, walked up to the cemetery area, where as
far as the eye could see there were white crosses, Stars of
David. And the British had a bagpipe band scattered among the
crucifixes, the crosses, playing ``Amazing Grace'' with that
peaceful, mournful sound that only the bagpipe can make. If you
could keep your eyes dry you were better than I.
But I walked to one of these crosses marking a grave
because I wanted to personalize the experience. I was looking
for a name but there was no name. It said, ``Here lies in
Honored Glory a Comrade in Arms Known but to God.''
How do we keep faith with that comrade in arms? Go to the
Vietnam Memorial on the National Mall and press your hands
against a few of the 58,000 names carved into that wall, and
ask yourself, How can we redeem the debt we owe all those who
purchased our freedom with their lives? How do we keep faith
with them? I think I know. We work to make this country the
kind of America they were willing to die for. That is an
America where the idea of sacred honor still has the power to
stir men's souls.
My solitary--solitary--hope is that 100 years from today
people will look back at what we have done and say, ``They kept
the faith.''
I am done.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
------
ADJOURNMENT UNTIL 9:30 A.M. TUESDAY, JANUARY 19, 1999
Mr. LOTT. Mr. Chief Justice, pursuant to the previous
consent agreement, I now ask unanimous consent that the Senate
stand in adjournment under that order.
The CHIEF JUSTICE. Without objection, it is so ordered. The
Senate, under the previous order, stands adjourned until 9:30
a.m., Tuesday, January 19, at which time it will reconvene in
legislative session. Under that same order, the Senate will
next convene as a Court of Impeachment on Tuesday, January 19,
at 1 p.m. The Senate stands adjourned.
Thereupon, at 2:53 p.m., the Senate, sitting as a Court of
Impeachment, adjourned to reconvene in legislative session on
Tuesday, January 19, 1999, at 9:30 a.m.
------
Tuesday, January 19, 1999
[From the Congressional Record]
The Senate reconvened sitting as a Court of Impeachment at
1 p.m.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the Articles of
Impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Mr. Chief Justice, it is my understanding that
the White House presentation today will last approximately 2\1/
2\ hours--maybe a little more, maybe a little less. I therefore
suggest that a short recess be taken in approximately an hour,
around 2 o'clock, to allow the Chief Justice and all Members to
have a brief break.
I remind all Senators to remain standing at their desk each
time the Chief Justice enters or departs the Chamber. If there
is a need for another break, I will keep an eye on the White
House counsel to see if they need a break, and we will act
accordingly.
Of course, I remind Senators again, tonight please be in
the Chamber at 8:35 so we can proceed to the joint session.
I thank my colleagues and yield the floor. I believe we are
ready to begin.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, the
counsel for the President have 24 hours to make the
presentation of their case. The Senate will now hear you. The
Chair recognizes Mr. Counsel Ruff to begin the presentation of
the case for the President.
Mr. Counsel RUFF. Mr. Chief Justice, Members of the Senate,
distinguished managers, William Jefferson Clinton is not guilty
of the charges that have been preferred against him. He did not
commit perjury; he did not obstruct justice; he must not be
removed from office.
Now, merely to say those words brings into sharp relief
that I and my colleagues are here today in this great Chamber
defending the President of the United States. For only the
second time in our Nation's history, the Senate has convened to
try the President of the United States on articles of
impeachment.
There is no one who does not feel the weight of this
moment. Nonetheless, our role as lawyers is much as it would be
in any other forum. We will not be able to match the eloquence
of the 13 managers who spoke to you last week. We will try,
however, to respond to the charges leveled against the
President as directly and candidly as possible, and to present
his defense as clearly and as cogently as we are able. We seek
on his behalf no more than we know you will give us--a fair
opportunity to be heard, a fair assessment of the facts and the
law, and a fair judgment. We will defend the President on the
facts and on the law and on the constitutional principles that
must guide your deliberations. Some have suggested that we fear
to do so. We do not.
I begin with a recitation of some of the events that have
brought us here today. Although many of them may be familiar,
they merit some discussion because they form the backdrop
against which you must assess the evidence.
I will then move to a discussion of the constitutional
principles that, we submit, should guide your consideration of
these matters and, finally, to an overview of the allegations
contained in the articles, with a view toward focusing your
attention on what we believe to be the principal legal and
factual flaws in the case presented by the managers.
My colleagues will follow tomorrow and the following day
with a more detailed analysis of the facts underlying the
articles. At the end of our presentation, we will have
demonstrated beyond any doubt that there is no basis on which
the Senate can or should convict the President of any of the
charges brought against him.
Let me begin with a brief recital of the essential events
in the Paula Jones litigation which underlie so much of what we
have been discussing for the last week.
On May 6, 1994, Paula Jones sued President Clinton in the
U.S. District Court for the Eastern District of Arkansas. She
claimed that then-Governor Clinton had made, in 1991, some
unwelcomed overture to her in an Arkansas hotel room and that
she suffered adverse employment consequences and was
subsequently defamed.
After the Supreme Court decided in May 1997 that civil
litigation against the President could go forward while he was
in office, the case was remanded to the district court, and
over the fall and winter of 1997, the Jones lawyers deposed
numerous witnesses. And inevitably, despite the strict
protective order entered by Judge Wright, and continuing
exhortation to counsel not to discuss any aspect of the case
with the press, information flowed from those depositions into
the public forum clearly with only one purpose--to embarrass
the President.
The principal focus of the discovery being conducted by the
Jones lawyers during this period was not on the merits of their
client's case. They devoted most of their time and their energy
to attempt to pry into the personal life of the President. Mr.
Bennett, the President's counsel, objected to those efforts on
the grounds they had no relevance to Ms. Jones' claims and
intended to do nothing other than to advance the agenda of
those who were supporting the Jones lawsuit. The Jones lawyers,
however, pursued their efforts to inquire into the President's
relations with other women, and on December 11, 1997, Judge
Wright issued an order allowing questioning regarding only
``any individuals with whom the President had sexual relations
or proposed or sought to have sexual relations and who were
during the relevant timeframe a State or Federal employee.''
Then on December 5, 1997, the Jones lawyers placed on their
witness list the name of Monica Lewinsky. And on December 19,
she was served with a subpoena for her deposition to be
scheduled in January.
Consistent with rulings issued by Judge Wright in
connection with the Jones lawyers' efforts to secure the
testimony of a number of other women, some have sought to avoid
testifying by submitting affidavits to the effect that they had
no knowledge relevant to Ms. Jones' lawsuit, or that they
otherwise do not meet the test that Judge Wright had
established before permitting this invasive discovery to go
forward.
On January 7, 1998, Ms. Lewinsky did execute such an
affidavit, and her lawyer provided copies to the lawyers for
Ms. Jones and for the President on January 15.
The Jones lawyers deposed the President on January 17,
1998. They began the deposition by proffering to him a
multiparagraph definition of the term ``sexual relations'' that
they intended to use in questioning him. There followed an
extended debate among counsel and the court concerning the
propriety and the clarity of that definition. Mr. Bennett
objected to its use, arguing that it was unclear, that it would
encompass conduct wholly irrelevant to the case, and that it
was unfair to require the President to apply a definition that
he had never seen before to each question he was asked. Indeed,
Mr. Bennett urged the lawyers for Ms. Jones to ask the
President specific questions about the conduct, but they
declined to do so.
Judge Wright acknowledged the overbreadth of the
definition, but she ultimately determined that the Jones
lawyers could use the heavily edited version of the definition
that left in place only the two lines of paragraph 1, of which
you are already familiar. Immediately after the extended legal
skirmishing, the Jones lawyers began asking him about Monica
Lewinsky.
Mr. Bennett objected, questioning whether counsel had a
legitimate basis for their inquiry in light of Ms. Lewinsky's
affidavit denying a relationship with the President. Judge
Wright overruled that objection and permitted the Jones lawyers
to pursue their inquiry. Four days later, the independent
counsel's investigation became a public matter.
On January 29, responding to a request by independent
counsel to bar further inquiry related to Ms. Lewinsky, Judge
Wright ruled that evidence relating to her relationship with
the President would be excluded from the trial. She reaffirmed
this ruling on March 9, stating that the evidence was not
``essential to the core issues in this case of whether the
plaintiff herself was the victim of sexual harassment, hostile
work environment, or intentional infliction of emotional
distress.'' On April 1, 1998, Judge Wright--
I apologize for the logistical problem. Why don't I just
hold it.
On April 1, 1998, Judge Wright granted summary judgment in
favor of President Clinton dismissing the Jones suit in its
entirety. She ruled that no evidence that Ms. Jones had offered
or that her lawyers had discovered made out any viable claim of
sexual harassment or intentional infliction of emotional
distress. Importantly, Judge Wright ruled that evidence of any
pattern or practice of comparable conduct by the President was
not important to the case.
I want to take just a moment to read the relevant portions
of Judge Wright's opinion, not to demean in any sense
plaintiff's claims of sexual harassment or to suggest that we
must be other than vigilant to protect the rights of all
citizens, but simply to bring into slightly sharper focus the
role that the President's deposition played in the real Jones
litigation. Judge Wright wrote:
Whatever relevance such evidence may have to prove other
elements of plaintiff's case, it does not have anything to do
with the issue presented by the President's and Ferguson's
motions for summary judgment--i.e. whether plaintiff herself
was the victim of alleged quid pro quo or a hostile work
environment or sexual harassment; whether the President and
Ferguson conspired to deprive her of her civil rights or
whether she suffered emotional distress so severe in nature
that no reasonable person could be expected to endure it.
Whether other women 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.
Ms. Jones appealed Judge Wright's decision to the Eighth
Circuit. Arguments were heard on October 20, 1998, and on
November 13, 1998, before the decision was rendered, Ms. Jones
and the President settled the case.
Briefly then, to what was happening on the front of the
independent counsel's office. In mid-January 1998, Linda Tripp
had brought to the independent counsel information that she had
been gathering surreptitiously for months about Ms. Lewinsky's
relationship with the President and her involvement in the
Jones case. And thus, began the penultimate chapter.
As you will see, Ms. Tripp's relationship with Ms. Lewinsky
and her role in these matters was more than merely a backdrop
to the succeeding events. Independent counsel met with Ms.
Tripp and formally granted her immunity from Federal
prosecution and promised to assist her in securing immunity
from State prosecution where she had been illegally taping the
telephone calls with Ms. Lewinsky. On January 13, Ms. Tripp
agreed to tape a conversation with Ms. Lewinsky under FBI
auspices. And on January 15, armed with that tape, the
independent counsel's office first contacted the Department of
Justice to seek permission from the Attorney General to expand
its jurisdiction to cover the investigation that had already
begun. On January 16, that permission was granted by the
special division of the court of appeals.
Now, the President's deposition was scheduled to take place
the very next day--Saturday, January 17. On the 16th, Ms. Tripp
invited Ms. Lewinsky to have lunch with her at the Pentagon
City Mall. There she was greeted by four FBI agents and
independent counsel lawyers and taken to a hotel room where she
spent the next several hours. Ms. Tripp was in the room next
door for much of that time. When she left that evening, she
went home to meet with the Jones lawyers with whom we know she
had been in contact for many months in order to brief them
about her knowledge of the relationship between Ms. Lewinsky
and the President so that they, in turn, could question the
President the next morning.
As the independent counsel himself has acknowledged, Ms.
Tripp was able to play this oddly multifaceted role. Because it
was part of her immunity agreement, the OIC could have
prevented her from talking about Ms. Lewinsky. They
inexplicably chose not to.
The existence of the OIC investigation was made public on
January 21 in an edition of the Washington Post with the all-
consuming focus of media coverage for the ensuing 8 months.
On August 17, the President's deposition was taken by the
independent counsel for use by the grand jury, and on September
9, there was delivered to the House of Representatives a
referral of Independent Counsel Starr containing what purported
to be the information concerning acts ``that may constitute
grounds for impeachment.'' The referral was accompanied by some
19 boxes of documents, grand jury transcripts, and a videotape
of the grand jury testimony.
The referral was made public by the House on September 11.
On September 21, additional materials were released, along with
the President's grand jury videotape that was then played
virtually nonstop on every television station in the country
during that day.
The committee held a total of 4 days of hearings, one for
preliminary presentations by the majority and minority counsel,
one for testimony by Independent Counsel Starr, and two in
which the President was permitted to call witnesses and present
his defense.
In addition, the constitutional subcommittee held the one
hearing on the standards for impeachment, and the committee
convened in its oversight capacity to hear witnesses on the
meaning of perjury. The committee called no fact witnesses.
Despite numerous efforts to extract from the committee some
description of the specific charges against which the President
would have to defend himself, it was not until approximately
4:30 on December 9, as I was completing my testimony before the
committee, that any such notice was provided, and then it came
in the form of four draft articles of impeachment.
Three days later, the committee reported out those
articles, and on December 9 the House completed its action,
referring to the Senate article I, the charge of perjury in the
grand jury; defeated article II, which alleged perjury in the
Jones deposition; exhibited article III, which charged
obstruction of justice; and defeating article IV, which alleged
false statements to the House of Representatives.
And so we are here. But before moving on, let me pause on
an important procedural point. Although the Senate has asked
that the parties address the issue of witnesses only after
these presentations are completed, the managers spent much of
their time last week explaining to you why, if only witnesses
could be called, you would be able to resolve all of the
supposed conflicts in the evidence. Tell me, then, how is it
that the managers can be so certain of the strength of their
case? They didn't hear any of these witnesses. The only witness
they called, the independent counsel himself, acknowledged that
he had not even met any of the witnesses who testified before
the grand jury. Yet, they appeared before you to tell you that
they are convinced of the President's guilt and that they are
prepared to demand his removal from office.
Well, the managers would have you believe that the
Judiciary Committee of the House were really nothing more than
grand jurors, serving as some routine screening device to sort
out impeachment chaff from impeachment wheat. Thus, as they
would have it, there was no need for anything more than a
review of the cold record prepared by the independent counsel;
no need for them to make judgments about credibility or
conflicts. Indeed, they offered you a short lesson in grand
jury practice, telling you that U.S. attorneys do this thing
all the time, that calling real, live witnesses before a grand
jury is the exception to the rule. Well, it has been a few
years since I served as U.S. attorney for the District of
Columbia, so there may have been a change in the way
prosecutors go about their business, but I don't think so.
And so what lesson can be learned from the process followed
by the House? I suggest that what you have before you is not
the product of the Judiciary Committee's well-considered,
judicious assessment of their constitutional role. No, what you
have before you is the product of nothing more than a rush to
judgment.
And so how should you respond to the managers' belated plea
that more is needed to do justice? You should reject it. You
have before you all that you need to reach this conclusion:
There was no basis for the House to impeach, and there is no,
and never will be any, basis for the Senate to convict.
Now, the managers have not shown, and could not on this
record or any record prove, that the President committed any of
the offenses alleged in any of the articles. But even if they
could, these offenses would not warrant your deciding to remove
the President from office.
In this regard, an impeachment trial is unlike any other.
You are the judges of the law and the facts and the appropriate
sanctions. Before casting a vote of guilty or not guilty, you
must decide not only whether the President committed the acts
with which he is charged but whether those acts so seriously
undermined the integrity of our governmental structure that he
must be removed from office.
I want to deal here for just a moment with an argument that
was advanced in the press by one of the managers, and that is
that the question whether the offenses described in the
articles are impeachable is not really before you, that it has
already been decided by the House. As the manager put it in a
press interview, ``Are these impeachable offenses, which I
think has already been resolved by the House? I think
constitutionally that's our job to do.''
Now, I trust, in light of last week's extended discussion,
that the managers no longer press that notion, for it was
remarkable in at least three respects. First, it is entirely
inconsistent with the ``don't worry about it; this is just a
routine procedural process; leave the difficult decisions to
the Senate'' argument so frequently heard during the
proceedings in the House. Second, it is an argument that rings
hollow coming from those who did not even debate the
constitutional standards or seek any consensus on what those
standards should be. And third, and most importantly, it
arrogates to the House the critical constitutional judgment
which is yours alone.
Far be it for me, or indeed anyone else, to instruct this
body on its constitutional role, but I do think it would help
us all to be reminded of the words of Alexander Hamilton in
Federalist No. 65, because impeachment necessarily deals with
injuries done immediately to society. Alexander Hamilton wrote:
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.
In many cases it will connect itself with the preexisting
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 demonstrations of innocence or
guilt.
The delicacy and magnitude of a trust which so deeply
concerns the political reputation and existence of every man
engaged in the administration of public affairs speak for
themselves. The difficulty of placing it rightfully in a
government resting entirely on the basis of periodical
elections will as readily be perceived, when it is considered
that the most conspicuous characters in it will, from that
circumstance, be too often the leaders or the tools of the most
cunning or the most numerous faction, and on this account can
hardly be expected to possess the requisite neutrality towards
those whose conduct may be the subject of scrutiny.
And then:
The convention, it appears, thought the Senate the most fit
depositary of this important trust.
Now, the President may be removed from office only upon
impeachment for and conviction of treason, bribery or other
high crimes and misdemeanors. The offenses charged here, even
if supported by the evidence, do not meet that lofty standard,
a standard that the framers intentionally set at this
extraordinarily high level to ensure that only the most serious
offenses and in particular those that subverted our system of
government would justify overturning a popular election.
Impeachment is not a remedy for private wrongs. It is a method
of removing someone whose continued presence in office would
cause grave danger to the Nation. Listen to the words of 10
Republican Members of the 1974 Judiciary Committee, one of whom
now sits in this body.
After President Nixon's resignation, in an effort to
articulate a measured and a careful assessment of the issues
they had confronted, they reviewed the historical origins of
the impeachment clause and wrote:
It 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 established by the Constitution. Absent the element
of danger to the State, we believe the delegates to the Federal
convention of 1787, in providing that the President should
serve for a fixed elective term rather than during good
behavior or popularity, struck the balance in favor of
stability in the executive branch.
Where did this lesson in constitutional history come from?
It came directly from the words of the framers in 1787.
Impeachment was no strange, arcane concept to them. It was
familiar to them as part of English constitutional practice and
was part of many State constitutions. It is therefore not
surprising that whether to make provision for impeachment of
the President became the focus of contention, especially in the
context of concern whether in our new republican form of
government the legislature ought to be entrusted with such a
power. On this latter point, perhaps foretelling the notion
that impeachment ought to be a matter of constitutional last
resort, Benjamin Franklin noted that it at least had the merit
of being a peaceful alternative to revolution.
Governor Morris, one of the principal moving forces behind
the language that ultimately emerged from the convention,
believed that provision for impeachment should be made but that
the offenses must be limited and carefully defined. His concern
was very clearly for the corrupt President who may be bribed by
a greater interest to betray his trust, as he wrote, and ``no
one ought to say that we ought to expose ourselves to the
danger of seeing the first magistrate in foreign pay without
being able to guard against it by displacing him.''
Drafts as they emerged from the convention moved through
one that authorized impeachment for treason or bribery or
corruption, and then the more limited treason or bribery, until
the critical debate of December 8, 1787, when, pointing to
their then-current example of the impeachment of Warren
Hastings, George Mason moved to add the word
``maladministration'' to that definition. It was in the face of
objections from James Madison and Morris, however, that this
term was too vague and would be the equivalent to tenure during
the pleasure of the Senate, that Mason withdraw his proposal
and the convention then adopted the language ``other high
crimes and misdemeanors against the State.'' As Morris put it,
``an election every 4 years will prevent maladministration.''
There is no question that the framers viewed this language
as responsive to Morris' concerns that the impeachment be
limited and well defined. To argue, then, as the managers do,
that the phrase ``other crimes and misdemeanors'' was really
meant to encompass a wide range of offenses that one might find
in a compendium of English criminal law simply flies in the
face of the clear intent of the framers who carefully chose
their language, knew exactly what those words meant, and knew
exactly what risks they intended to protect against.
Looking back on this drafting history, the 1974 minority
report described the purpose of the framers in these words:
They were concerned with preserving the Government from
being overthrown by the treachery or corruption of one man.
Now, the managers have made fun of the notion that hundreds
of distinguished scholars and historians expressed their
opinion that the offenses with which the President has been
charged are not high crimes or misdemeanors. Indeed they
suggested--not too subtly--that they must have signed those
letters because they were political supporters of the
President. To quote them, ``You go out and obtain from your
political allies and friends in the academic world--to sign a
letter saying the offenses alleged in the articles of
impeachment do not rise to the level of impeachable offenses.''
Well, as I understand the managers' position, it is that
Garry Wills sold his intellectual soul because he is a
political supporter of the President; Stephen Ambrose sold his
political soul--his intellectual soul--because he is a
political supporter of the President; C. Vann Woodward sold his
intellectual soul because he is a political supporter of the
President.
Is it possible, instead, that distinguished scholars of all
political persuasions thought it important to offer their
professional opinion on a matter of the greatest historical and
legal import because they cared about our country? Because they
cared that the constitutional process not be debased?
Perhaps, if the majority members of the full Judiciary
Committee had paused for even a moment to consider these
issues, if they had taken even a few hours to debate the
question of what constitutional standards apply, one might now
give greater credence to the belated constitutional exposition
that they have offered here. Instead, perhaps the majority was
convinced by their own rhetoric, by the oft-repeated mantra
that impeachment is merely a preliminary step in the process
and that the House need not be concerned with its weighty
constitutional duty and saw little reason to explore the
constitutional underpinning of that duty. Or perhaps they
understood that a full and candid explanation would reveal that
the proposed articles had no constitutional underpinning at
all.
Now, the central premise of the managers' argument appears
to be this: Perjury is an impeachable offense no matter the
forum or the circumstances in which it is committed. Second,
judges have recently been convicted and removed on the basis of
articles charging that they committed perjury. The President
committed perjury, therefore the President must be removed as
well.
That premise is simple but wrong. The first leg on which it
rests was removed by the House itself when it voted to defeat
article II, alleging perjury in a civil deposition, and the
House thus rejected the committee's core argument that perjury
in a civil deposition warrants impeachment as much as perjury
in any other setting. Thus, as to the committee's view that the
constitutional standard for impeachment requires that all
perjury be treated alike, the House concluded no, and properly
so.
And as to the committee's view that it makes no difference
whether perjury occurs in one forum or another, in a private or
an official proceeding, again the House said no, and properly
so.
What, then, of the managers' argument that the Senate's
recent conviction of three judges requires a conviction on the
articles before you today? Again, they simply have it wrong,
both as a matter of Senate precedent and as a matter of
constitutional analysis. They argue that because a judge is
obliged to faithfully carry out the law just as the President
is, each must be removed if he commits perjury or obstructs
justice. Judges and Presidents, and one would presume, all
other civil officers if you follow their argument to its
logical conclusion, including Assistant Secretaries and others,
must in their view be removed from office if the Senate finds
that they committed either offense--removed without a second
thought. But judges are different. Indeed, every civil officer
other than the President of the United States is different.
They are different because before deciding whether to impose
the ultimate sanction of removal the Senate must weigh in the
balance dramatically different considerations.
First, the answer to the ultimate impeachment question--
that is, whether the conduct charged so undermines the
official's capacity to perform his constitutional duties that
removal is required despite the institutional trauma it may
cause--must be very different for one of 900 or 1,000 judges
with lifetime tenure who can only be removed by impeachment
than it is for one person elected every 4 years by the people
to serve as the head of the executive branch. Surely the
managers recognize that the Senate here faces a far different
question, a far different constitutional issue than it did, for
example, when it asked whether Judge Nixon, convicted and
imprisoned for perjury, should be permitted to retain his
office; or whether Judge Hastings, who lied about taking a
bribe to fix a case before him, should remain on the bench.
Indeed, a telling rejoinder to the House managers' argument
comes from President Ford. On many occasions, we have all seen
cited his statement in 1970, in connection with the proposal to
impeach Associate Justice William O. Douglas, that impeachment
is, in essence, whatever the majority of the House of
Representatives considers it to be. But no one really notes the
more important part of President Ford's statement 29 years ago.
I am going to read it to you:
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. To remove them in midterm--
it has been tried only twice and never done--would, indeed,
require crimes of the magnitude of treason and bribery.
The Senate must ask here whether the conduct charged
against President Clinton would, in its nature, be inconsistent
with a decision to allow him to continue to perform the duties
of his office, just as you would ask, if you had a judge before
you or another civil officer before you, whether the charges
are similarly inconsistent with the notion that he or she
should be allowed to continue to perform those duties.
As former House Judiciary Committee Chairman Peter Rodino,
who surely understood the difference between impeaching a
President and impeaching a judge, explained during the
Claiborne proceedings before this body:
The judges of our Federal courts occupy a unique position
of trust and responsibility in our government. They are the
only members of any branch that hold their office for life.
They are purposely insulated from the immediate pressures and
shifting currents of the body politic. But [he said] with the
special prerogative of judicial independence comes a most
exacting standard of public and private conduct.
A similar theme can be found running through the debate in
very recent years over a proposal to establish a process other
than impeachment for the removal of judges who fail to live up
to the good behavior standard. Both the proponents of the
proposal and the legal opinion offered in support of it
emphasize that the standard to which judges must adhere is
stricter than the impeachment standard, noting 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.''
Thus, whether weighing the constitutional or governmental
implications of removal or asking whether the accused can be
expected to perform his duties, the Senate has always
recognized that the test will be different depending on the
office that the accused holds.
This analysis is wholly consistent with the framers' intent
in drafting the impeachment clause that removal of a President
by the legislature must be an act of last resort when the
political process can no longer protect the Nation. Nothing in
the cases brought before the Senate in the last 210 years
suggests a different result.
The managers also attribute to the President the argument
that impeachment can never reach personal conduct. That is not
our position. As I told the Judiciary Committee on December 9
when I testified before them, not all serious misconduct
flowing from one of the President's official roles is
impeachable; neither is all serious misconduct flowing from his
personal conduct immune from impeachment. Judgments must be
made and they must be based on the core principles that inform
the framers' decision.
But the managers would, in effect, ask you to eschew making
these judgments. They speak of perjury and obstruction of
justice in general terms and they argue that they are offenses
inimical to the system of justice.
No one here would dispute that simplistic proposition. But
the managers will not walk with you down the difficult path.
They will not speak of facts, of differing circumstances and
differing societal interests. They will not because they do not
appear to recognize that those questions must be asked.
Perhaps the one exception to this was in the very last
moment of Chairman Hyde's closing when he suggested, with what
might to many seem almost an inverted logic, that a lie to
spare embarrassment about misconduct on a private occasion is
more deserving of removal than a lie about, as he described it,
important matters of state.
Although I submit that conclusion might have struck the
framers as somewhat odd, one can certainly conceive of acts
arising out of personal conduct that would warrant conviction
and removal, but you cannot ignore the circumstances in which
the conduct occurs or abandon the core principle that
impeachment should be reserved for those cases in which the
President's very capacity to govern is called into question.
Perjury about some official act may indeed be a
constitutionally acceptable basis for impeachment. Perjury
about a purely private matter should, at the very least, lead
this body to question whether, no matter how seriously we take
the person's violation, for example, of the witness' oath, the
drastic remedy of removal from office is the proper response.
Indeed, in a sense, that is the message sent by the House when
it defeated article II.
The principle that guides your deliberations, I suggest,
must not only be faithful to the intent of the framers, it must
be consistent with the governmental structure that they gave us
and the delicate relationship between the legislative branch
and the executive branch that is the hallmark of that
structure. It must, above all, reflect the recognition that
removal from office is an act of extraordinary proportions, to
be taken only when no other response is adequate to preserve
the integrity and viability of our democracy.
On this point--and here I will fend off the wrath or maybe
the scorn of the managers by quoting not a scholar or a
professor but, rather, a witness called by the majority members
of the Judiciary Committee to testify as an expert on the issue
of perjury, a witness who had served on the Judiciary Committee
in 1974. Judge Charles Wiggins told the members of the
committee this:
When you are called upon, as I think you will be called
upon, to vote as a Member of the House of Representatives, your
standard should be the public interest. And I confess to you
[said Judge Wiggins] that I would recommend that you not vote
to impeach the President.
Beyond the impression of what constitutes an impeachable
offense, each Senator must also confront the question of what
standard the evidence must meet to justify a vote of guilty.
We recognize that the Senate has chosen in the Claiborne
proceedings, and elsewhere, not to impose on itself any single
standard of proof, but rather to leave that judgment to the
conscience of the individual Senator. Many of you were present
for debate on that issue and chose a standard for yourselves.
Many of you come to the issue afresh. And none of you,
thankfully, has had to face the issue in the setting of a
Presidential impeachment.
Now, we argued before the Judiciary Committee that it must
treat a vote to impeach as a vote to remove and that that
judgment ought not be based on anything less than a clear and
convincing standard, a standard, indeed, adopted by the
Watergate committee 25 years ago. Surely no lesser standard
should be applied here. Indeed, we submit to you that given the
gravity of the decision you must reach, each of you should go
further and ask whether the House has established guilt beyond
a reasonable doubt. And this submission is made even more
compelling by the managers' own position in which they made
clear to you last week that proof of criminal conduct, in their
view, was required to justify conviction.
Now, lawyers and laymen too often, I think, treat the
standard of proof as meaningless legal jargon, with no real
application to the world of difficult decisions. But I suggest
to you that it is much more than that. It is the guidepost that
shows you the way through the labyrinth of conflicting
evidence. It tells you to look within yourself and ask, Would I
make the most important decisions of my life based on the level
of certainty I have about these facts, and in the unique legal
political setting of an impeachment setting that protects
against partisan overreaching and it assures the public that a
grave decision is being made with due care? It is the
disciplining force I think that you will carry with you into
your deliberations.
And let me say that even if the clear and convincing
standard is that which you apply for judicial impeachments, it
does not follow that it should be applied where the Presidency
itself is at stake. With judges, the Senate must weigh and
balance its concern for the independence of the judiciary
against the recognition that, because a judge is appointed for
life, impeachment is the only available method for removing
from office those who are corrupt.
On the other hand, when a President is on trial, the
balance is very different. Here you are asking, in effect, to
overturn the will of the electorate, to overturn the results of
an election held 2 years ago in which the American people
selected the head of one of the three coordinate branches of
Government.
Moreover, you have been asked to take this action in
circumstances where, even taking the darkest view of the
managers' position, there is no suggestion of corruption or
misuse of office or any other conduct that places our system of
Government at risk in the 2 remaining years of this President's
term, when once again the people will get the chance to decide
who should lead them. In this setting, we submit, you should
test the evidence by the strictest standard you know.
I want to talk for a few minutes about what we see as the
constitutional deficiency of the articles you have before you.
When the framers took from English practice the parliamentary
weapon of impeachment, they recognized that the form of the
Government that they had created, with its finely tuned balance
among the branches, was inconsistent with the parliamentary
dominance inherent in the English model. They chose, therefore,
to build a quasi-judicial impeachment process, one that had,
admittedly, political overtones but that carried with it the
basic principles of due process embodied in the Constitution
they had written.
Among those principles is the sixth amendment's guarantee
that the accused shall have the right to be informed of the
nature and cause of the accusation against him. That right has
been recognized to have special force in perjury cases, where
it is the rule uniformly enforced by the courts that an
indictment must inform the defendant specifically what false
statement he is alleged to have made.
This is not some mere technicality; it is the law. It is
the law because our courts have recognized that if a criminal
charge is to be based on the words uttered by a fallible human
being, he must be allowed to defend the truthfulness of the
specific words he used and not be convicted on the basis merely
of some prosecutor's summary or interpretation. This is not
some legal nicety that the House of Representatives can ignore,
as it has many other elements of due process. This is not an
argument we raise with this body merely in passing as a
lawyer's gambit. This is an important principle of our
jurisprudence. And I suggest that it is one that this body must
honor. There is not a court anywhere--from highest to lowest--
that would hesitate, if they were confronted with an indictment
written like these articles, to throw it out.
Indeed, if you want some evidence of how others have
perceived this issue, look to the Hastings and Nixon cases, in
both of which, the articles charging impeachment specifically
stated the false statements that they were accused of having
made.
Why, if the House understood the importance of specificity
in those cases, did it not understand the, if anything, greater
importance of telling the President of the United States what
he was charged with? If you compare the closing argument of
majority counsel and the majority report filed by the committee
and the trial brief filed by the House and the presentation of
the managers last week, you will begin to understand what has
happened here.
I challenge any Member of the Senate--indeed, any manager--
to identify the charges that the House authorized them to
bring. Just to take one example, we do not know to a certainty
that the House decided--or we do know with certainty that the
House decided not to charge perjury in the civil deposition.
Yet, to listen to the managers' presentation last week, one
would be hard put to conclude that they understood that. They
have, in essence, treated these articles as empty vessels, to
be filled with some witch's brew of charges considered, charges
considered and abandoned, and charges never considered at all.
Both article I and article II are constitutionally
deficient for other reasons as well. In particular, each
charge's multiple offenses is therefore void, in the criminal
justice vernacular, for duplicity because in a criminal case,
and here as well, lumping multiple offenses together in one
charging document creates a risk that a verdict may be based
not on a unanimous finding of guilt as to any particular charge
but, instead, may be composed of multiple individual judgments.
And that risk is in direct violation of the requirement of the
Constitution that this body agree by a two-thirds majority
before the President may be removed.
Now, the House responds to the President's concerns in this
regard by arguing that, well, the amendment of Senate rule 23,
which prohibits division of the articles, somehow addresses
this concern and that our argument would undermine the Senate's
own rules. But that is not so. Rule 23 was approved to permit
the most judicious and effective handling of the questions
presented to the Senate. It cannot be that the Senate, in
passing that rule--and you know surely better than I--decided
to purchase efficiency in impeachment proceedings at the price
of violating the Constitution, the mandate to ensure a two-
thirds vote for removal.
Now, 3 years after the revision of rule 23, in the trial of
Judge Nixon, this very issue was presented. And Senator Kohl
captured that problem. Although the first and second articles
of impeachment alleged that Judge Nixon had committed specific
violations of the perjury statute, the third article was a
catchall, alleging that he made ``one or more'' of 14 different
false statements. And I would note for you that that language,
``one or more,'' was identical to the language specifically
inserted into article I at the request of Congressman Rogan
during the Judiciary Committee proceedings.
In addressing the propriety of such a charging device,
Senator Kohl said:
The managers should not be allowed to use a shotgun or
blunderbuss. We should send a message to the House. Please do
not bunch up your allegations. Charge each act of wrongdoing in
a separate count. Such a change would clarify things and allow
for a cleaner vote on guilt or innocence.
Senator Dole, who surely knew something about Senate rules
and precedent, certainly didn't think that rule 23 bound the
result in that Nixon case. He first voted to dismiss article
III and then later voted to acquit Judge Nixon because it was
redundant, complex, and confusing. Thirty-three Senators joined
Senator Dole in voting to dismiss the article, and a total of
40 voted to acquit when it came to a judgment of guilt or
innocence.
Senators Kohl, Biden, and Murkowski each spoke about the
danger posed by this formulation. And I will look once more to
Senator Kohl:
This wording presents a variety of problems. First of all,
it means that Judge Nixon can be convicted even if two-thirds
of the Senate does not agree in which his political statements
were false. The House is telling us that it is OK to convict
Judge Nixon on article III even if we have different visions of
what he did wrong. But that is not fair to Judge Nixon, to the
Senate, or to the American people.
Those Senators were not acting in derogation of Senate
Rules or precedents. They were acting in the spirit of fairness
to the accused and in the very best tradition of American due
process.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
recess
Mr. LOTT. Mr. Chief Justice, I believe that counsel has
indicated he is ready to take a break, so I ask unanimous
consent that we take a brief 15-minute recess.
There being no objection, at 2:02 p.m., the Senate recessed
until 2:21 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we will continue now
with a further statement from Counsel Ruff.
The CHIEF JUSTICE. The Chair recognizes Mr. Counsel Ruff to
continue his presentation.
Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
My first question is: Is it working?
Thank you, very much. I apologize for the mechanical
difficulties earlier. I could quickly go back over the first
hour. [Laughter.]
I want now to move to an overview of the articles of
impeachment themselves. As I said, as I came to the end of the
first hour, these articles are constitutionally defective. They
are also unsupported by the evidence. As we have noted, both
articles are framed in the broadest generalities and pose
multiple different defenses. Nothing contained in the Judiciary
Committee's majority report, or in the trial brief, or in the
presentation of the managers, cures the constitutional
infirmity that infects these articles. Nonetheless, in framing
our defense, they provide the only way through this uncharted
landscape.
We have divided our substantive response to the articles
into three parts.
Tomorrow, Mr. Craig will address the charges in Article I--
that the President committed perjury before the grand jury.
Second, Ms. Mills will address those parts of Article II
that charge the President with obstructing justice by causing
concealment of gifts he had given to Ms. Lewinsky, and that he
engaged in witness tampering in his conversations with Ms.
Currie.
Third, Mr. Kendall will address the remaining allegations
of obstruction on Thursday, and then we will close by hearing
from Senator Bumpers.
Before I move to an overview of the articles and the
response that you will hear over the next couple of days, I
want to suggest to you an approach to one of the most difficult
questions that you face: How does one sitting in judgment on a
case like this test the reliability of what he or she hears in
the proceedings? Let me offer one test.
Those of you who have practiced on one side or the other in
the criminal justice system know that the system places a
special responsibility on a prosecutor--a burden to be open,
candid, and forthcoming in his arguments, and most importantly,
in representing the facts so that when a prosecutor recites the
facts he is not expected to ignore the unfavorable ones. He is
expected to be open with judge and jury. Of course, he can make
an argument as to why a particular fact is really not so
important, but he can neither conceal it nor misrepresent it.
When you hear a prosecutor, or a team of prosecutors, misstate
a fact or not tell you the whole story, you should wonder why.
You should ask yourself whether the misstatement is an error,
or whether it signals some underlying flaw in the prosecution's
case, or some problem that they are trying to conceal. And you
ought to be particularly skeptical when the fact that is
concealed or isn't fully revealed is claimed by the prosecutors
themselves to be crucial to their case.
We all sometimes speak with less than complete care, and we
are justly criticized when we make mistakes. If I tell you
something inadvertently that proves to be wrong, I expect to be
held to account for that. And similarly, we must hold the
managers accountable for their mistakes.
Last week, for example, you will recall that Mr. Manager
Sensenbrenner told you that during my coming before the
Judiciary Committee, in his words,
Charles Ruff was asked directly: Did the President lie
during his sworn grand jury testimony? And Mr. Ruff could have
answered that question directly. He did not, and his failure to
do so speaks 1,000 words.
Just to be certain that the record is straight, let me read
to you from the transcript of that Judiciary hearing.
Representative Sensenbrenner: The oath that witnesses take
require them to tell the truth, the whole truth, and nothing
but the truth. I seem to recall that there were a lot of
people, myself included, when asked by the press what advice
would we give to the President when he went to the grand jury,
was to just tell the truth, the whole truth, and nothing but
the truth.
Mr. Ruff: He surely did.
Representative Sensenbrenner: Did he tell the truth, the
whole truth, and nothing but the truth when he was in the grand
jury?
Mr. Ruff. He surely did.
I am certain that Mr. Sensenbrenner would not intentionally
mislead the Senate. But his error was one of inadvertence. But,
in any event, now the record is clear.
Of considerably more importance than this momentary lapse
are the many substantive flaws that we will point out to you in
the coming days--sometimes pure errors of fact, sometimes
errors of interpretation, sometimes unfound speculation. My
colleagues will deal with many of these flaws at greater length
as they discuss the specific charges against the President. But
I will give you some examples as I read appropriate points in
my overview today, because I want you to have in mind
throughout our presentation, and indeed throughout the rest of
the proceedings, this one principle: Beware of the prosecutor
who feels it necessary to deceive the court.
Let me begin with article I.
Our system of justice recognizes the difficulties inherent
in testifying under oath, and it affords important protections
for the witness who may be charged with perjury, and thus the
Judiciary Committee's dissatisfaction with the President's
answers because they thought they were narrow, or even
hairsplitting, in some sense reflect the dissatisfaction with
the rules that have been applied for centuries in prosecuting
this offense.
Further, it requires proof that a defendant knowingly made
a false statement about a material fact. The defendant must
have had a subjective intent to lie. The testimony that is
provided as a result of confusion, mistake, faulty memory, or
carelessness, or misunderstanding is not perjury. The mere fact
that the recollection of two witnesses may differ does not mean
that one is committing perjury. Common sense and the stringent
requirements of the law dictate what law is required. As the
Supreme Court has noted,
Equally honest witnesses may well have different
recollections of the same event, and thus, a conviction for
perjury ought not to rest entirely upon an oath against an
oath.
This is the rationale for the common practice of
prosecutors to require significant corroborating evidence
before they bring a perjury case. Indeed, the Department of
Justice urges that its prosecutors seek independent
corroboration, either through witnesses or corroborating
evidence of a quality to assure that a guilty verdict is really
well founded.
This isn't merely the argument we make as we are acting for
the President. The bipartisan and former Federal prosecutors
from whom you will hear will testify that neither they nor any
reasonable prosecutor could charge perjury based upon the facts
in this case.
Tom Sullivan, former U.S. Attorney for the Northern
District of Illinois, told the committee that the evidence set
out would not be prosecuted as a criminal case by a responsible
Federal prosecutor.
Richard Davis, a former colleague of mine on the Watergate
special prosecution force, testified that no prosecutor would
bring this case of perjury because the President acknowledged
to the grand jury the existence of an improper relationship and
argued with prosecutors questioning him that his acknowledged
conduct was not a sexual relationship as he understood the
definition of that term used in the Jones deposition. And that
is where you need to begin your focus as you look at the charge
that the President perjured himself in the grand jury in August
of last year.
Any assessment of that testimony must begin with one
immutable fact. He admitted that he had, in his words,
inappropriate, intimate contact with Monica Lewinsky. No one
who was present for that testimony, has read the transcript, or
watched the videotape could come away believing anything other
than that the President and Ms. Lewinsky engaged in sexual
conduct. Indeed, even the prosecutors, who surely cannot be
accused of being reluctant to find Presidential misconduct,
contended not that the President had lied about the nature of
his relationship but only about the details. Yet, the managers,
in their eagerness to find misconduct where none had found it
before, have searched every nook and cranny of the grand jury
transcript and sent forward to you a shopping list of alleged
misstatements, obviously in the hope that among them you will
find one with which you disagree. But they hope in vain. The
record simply will not support a finding that the President
perjured himself before the grand jury.
Now, much of the questioning by the prosecutors and much of
the grand jury testimony about which the House now complains so
vociferously dealt with the President's efforts to explain why
his answers in the Jones deposition, certainly not pretty,
were, in his mind, truthful, albeit narrowly and artfully
constructed.
We are not here to talk to you today about the President's
testimony in the Jones deposition. We do seek to convince you
that before the grand jury the President was open, candid,
truthful.
Now, the managers begin by asking you to look at the
prepared statement that the President offered at the very
beginning of his grand jury appearance. Before the President
actually began his testimony, his lawyer, Mr. Kendall, spoke to
Mr. Starr and told him that at the first moment at which there
was an inquiry concerning the detailed nature of the
relationship with Ms. Lewinsky, he wished to make a prepared
statement, and he was permitted to do so. That statement
acknowledged the existence of an intimate relationship, but it
did not discuss the specific physical details in what I think
we will all understand to have been an effort to preserve the
dignity of the office.
Now, the House has charged that this statement was somehow
a ``premeditated effort to thwart the OIC's investigation.''
That is errant nonsense. Even independent counsel saw no such
dark motive in this statement.
Now, first, the managers advance the baseless charge that
the President intentionally placed the beginning of his
relationship with Ms. Lewinsky in 1996 rather than 1995 as she
testified. Interestingly, they don't even purport to offer any
support for this charge other than Ms. Lewinsky's testimony,
and they offer not even the somewhat odd explanation originally
offered by the independent counsel to explain why the
President, having admitted the very worst things a father and
husband can conceivably admit, would have shifted the time by 3
months.
Next, the managers assert that the President's admission
that he engaged in wrongful conduct ``on certain occasions''
was false because the President actually engaged in such
conduct some 11 times, and they assert as well that when the
President admitted he had occasional telephone conversations
that included inappropriate discussions, that was false because
they had actually had 17 such phone conversations.
Now, the President gave his best recollection of the
frequency of those contacts. Ms. Lewinsky gave hers. Assuming
that the majority is correct in its assumption that there were
11 or 17, can anyone imagine a trial in this court or in any
other court in which the issue of whether ``certain occasions''
by definition could not mean 17 and ``occasionally'' could not
refer to 11 would be the issue being litigated?
Even the independent counsel, again, who could, of course,
have pressed the President for specific numbers had they
thought it important, did not take issue with this testimony.
Thus, the perjury charge in article I again comes down to
the same allegations contained in the independent counsel's
referral, that the President lied to the grand jury about two
things--his subjective, his personal subjective understanding
of the definition used in the Jones deposition and, second, he
lied when he denied that he engaged in certain details of
inappropriate conduct.
Now, to conclude that the President lied to the grand jury
about his relationship with Ms. Lewinsky, you must determine--
forgive me--that he touched certain parts of her body, but for
proof you have only her oath against his oath.
Those among you who have been prosecutors or criminal
defense lawyers know that perjury prosecutions, as rare as they
are, would never be pursued under evidence available here. And
those among you who could not bring that special experience at
least bring your common sense and are equally able to assess
the weakness of the case that would rest on such a foundation.
Common sense also is enough to tell you that there cannot
be any basis for charging a witness with perjury on the ground
that you disbelieve his testimony about his own subjective
belief in a definition of a term used in a civil deposition.
Not only is there no evidence to support such a charge here, it
is difficult to contemplate what evidence the managers might
hope to rely on to meet that burden.
Now, it is worth noting that Mr. Bennett, at the time of
the deposition, pressed the Jones lawyers to ask the President
specific questions about his conduct rather than rely on this
confusing definition that they proffered. In fact, when the
President was asked in the grand jury whether he would have
answered those questions, he said, of course, if the judge had
ruled them appropriate, he would have answered truthfully. But
the Jones lawyers persisted in their somewhat strange cause,
strange unless one asked whether, armed with Ms. Tripp's
intelligence, they purposely sought in some fashion to present
the independent counsel a record that would permit just the
sort of dark interpretation both he and the managers have
proffered.
I point you to one thing. If you seek evidence that the
President took the definition he was given seriously, and he
responded carefully to the questions put to him, even if they
required the most embarrassing answers, one need only look to
the painful admission that he did have relations with another
woman and he testified to the grand jury the definition
required that he make that admission. Here is what he said to
the grand jurors:
I read this carefully, and I thought about it. And I
thought about what ``contact'' meant, and I thought about
[other phrases] and I had to admit under this definition that I
had actually had relations with Gennifer Flowers.
Now, undeterred in its search for some ground on which to
base the charge that the President lied to the grand jury,
article I abandons even the modest level of specificity found
in the independent counsel's referral and advances the claim:
The President gave perjurious, false and misleading
testimony regarding prior statements of the same nature he made
in his deposition.
There can be no stronger evidence of the constitutional
deficiency of this article than this strangely amorphous charge
as a deficiency that becomes even more obvious when you finally
stumble across the theory on which the managers rely. To the
extent one can determine what the Judiciary Committee had in
mind when it drafted this clause, it appears that they intended
to charge the President with perjury before the grand jury
because he testified that he believed--believed--that he had,
in his words, ``worked through the minefield of the Jones
deposition without violating the law.'' And that they hoped to
support that charge by reference to various allegedly false
statements in his deposition as charged in article II.
Unhappily for the managers, however, the House rejected article
II and it is not before you in any form. Moreover, there is not
a single suggestion in the committee debate--or, more
importantly, in the House debate--that those voting to impeach
the President believed that this one line that I have quoted to
you from the President's grand jury testimony, somehow absorbed
into article I his entire deposition testimony.
If there is to be any regard for constitutional process,
the managers cannot be allowed to rely on what the Judiciary
Committee thought were false statements encompassed in a
rejected article II to flesh out the unconstitutionally
nonspecific charges of article I. The House vote on article II
foreclosed that option for all time.
Now, article I next alleges that the President lied to the
grand jury about the events surrounding certain statements made
by Mr. Bennett during the Jones deposition. Specifically, the
managers charge that the President was silent when Mr. Bennett
characterized the Lewinsky affidavit as meaning there was no
sex of any kind in any manner, shape, or form with President
Clinton, and that the President then gave a false explanation
to the grand jury when he testified that he wasn't really
paying attention when his lawyer said that.
Now, as we noted earlier, Mr. Bennett argued to Judge
Wright that, in light of Ms. Lewinsky's affidavit denying a
relationship, the Jones lawyers had no good-faith basis for
questioning the President about her. The President was not
involved in the lengthy back and forth among the judge, the
Jones lawyers, and Mr. Bennett. He said nothing. When he was
asked in the grand jury about Mr. Bennett's statement, he said,
``I'm not even sure I paid much attention to what Mr. Bennett
was saying.''
Now, the managers assert that this is false because the
videotape shows that the President was in fact paying
attention. But a fairer view of the videotape, I suggest to
you, shows the President looking, indeed, in Mr. Bennett's
direction, and in the direction of the judge, but giving no
sign that he was following the discussion. He didn't nod his
head. He didn't make facial expressions. There was nothing to
reflect an awareness of the substance of what was happening,
much less what was said in Mr. Bennett's statement.
Now, I don't know how large a group this would be, but any
of you who has ever represented a witness or been a witness in
a deposition will readily understand the President's mindset,
that the lawyers and the judge debated these issues, and you
will understand, too, that to charge him with perjury for
having testified falsely about his own state of mind with
nothing more to rely on than a picture would strain credulity
in any prosecutor's office and flies past the bounds of
constitutional reason in this Chamber.
I move, now, to the allegations in Article II charging the
President with obstruction of justice in the Jones lawsuit and
in the grand jury investigation. I want to talk first about
what has become known as the concealment of gifts theory. The
allegation that the President participated in some scheme to
conceal certain gifts he had given to Ms. Lewinsky centers on
two events allegedly occurring on December 28, 1997: First,
conversation between the President and Ms. Lewinsky in the
White House in which the two discussed the gifts, at least
briefly, that he had given to Ms. Lewinsky; and, B, Ms.
Currie's picking up a box of gifts from Ms. Lewinsky and
storing them under her bed.
The managers, as was true of the majority report--and the
independent counsel role before that--build their theory in
this case not on seven pillars of obstruction but on seven
shifting sand castles of speculation. Monica Lewinsky met with
the President on December 28, 1997, sometime shortly before 8
a.m., to exchange Christmas presents. According to Ms.
Lewinsky, they briefly discussed the subject of gifts she had
received from the President in connection with her receipt some
days earlier of the subpoena in the Jones case, and this was
the first and the only time, she says, in which the subject was
ever discussed.
Now, the managers quote one conversation of Ms. Lewinsky's
description of that December 28 version as follows:
At some point I said to him, well, you know, should--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.
But the Senate should know that in fact Ms. Lewinsky has
discussed this very exchange on at least 10 different occasions
and that the very most she alleges in any of them is that the
President said, ``I don't know,'' or ``Let me think about it,''
when she raised the issue of the gifts. Indeed, in many of her
versions she said, among other things, there really was no
response, that the President did not respond, that she didn't
have a clear image in her mind what to do next. She also
testified that Ms. Currie's name did not come up because the
President really didn't say anything. And, most importantly, in
not a single one of her multiple versions of this event did she
say that the President ever initiated any discussion about the
gifts, nor did he ever suggest to her that she conceal them.
Now, there being no evidence of obstruction in that
conversation, the managers would have you believe that after
Ms. Lewinsky left the White House that day, the President must
have told Betty Currie to retrieve the gifts from Ms. Lewinsky.
But there is absolutely no evidence that that discussion ever
occurred. The only two parties who would have knowledge of it,
the President and Ms. Currie, both denied it ever took place.
Now, in the absence of any such evidence, the managers have
relied on Ms. Lewinsky's testimony that Ms. Currie placed a
call to her and told her--depending on Ms. Lewinsky's version--
either that the President had said to Betty Ms. Lewinsky had
something for her or merely that she, Ms. Currie, understood
that Ms. Lewinsky had something for her.
In this regard, it is important to remember that Ms.
Lewinsky herself testified that she was the one who first
raised with the President the notion that Ms. Currie could hold
the gifts. And it is important to recognize that, contrary to
the managers' suggestion to you that Ms. Lewinsky's memory of
this event has always been consistent and--``unequivocal,'' I
think was their word--she herself acknowledged at her last
grand jury appearance that her memory of the crucial
conversation is less than crystal clear. To wit:
A Juror: Do you remember Betty Currie saying that the
President had told her to call?
Ms. Lewinsky: Right now, I don't remember.
And now we come to the first example I promised you of
prosecutorial--what shall we call it?--fudge. Starting from the
premise that Betty Currie called Monica Lewinsky and told her
that she understood she had something for her and then went to
pick up a sealed box containing some of the gifts she had
received, Ms. Lewinsky had received from the President, first
the independent counsel concluded, and then the majority report
concluded, and now the managers have concluded, that the
President must have instructed Ms. Currie to go pick up these
gifts--to call Ms. Lewinsky and make the arrangements. So that
they determined that when Ms. Currie said it was Ms. Lewinsky
who called her, Ms. Currie was mistaken or, if you listen
carefully, maybe worse. And when the President testified that
he didn't tell Ms. Currie to call Ms. Lewinsky, he was--well,
just worse. And this surmise is made absolutely certain, in the
view of the managers, because a newly discovered, unknown even
to independent counsel, cell phone record shows that Ms. Currie
called Ms. Lewinsky at 3:32 p.m. on December 28 and that must
be the call that Ms. Lewinsky remembered.
Let's look now at how the majority counsel for the
committee put it in his closing argument to the Judiciary
Committee. I have put his words up on the chart, and you all
should have it in front of you as well:
There is key evidence [said majority counsel] that Ms.
Currie's fuzzy recollection is wrong. Monica said that she
thought Betty called from her cell phone. Well, look at this
record. [Show it to you later.] This is Betty's cell phone
record. It corroborates Monica Lewinsky and proves conclusively
that Ms. Currie called Monica from her cell phone several hours
after she had left the White House. Why did Betty Currie pick
up the gifts from Ms. Lewinsky? The facts strongly suggest the
President directed her to do so.
There is a slight problem with the majority counsel's
epiphany, as it has been passed down to the managers and then
to you. For you see--and here is the cell phone record--it
reflects that at 3:32 p.m. on December 28, from Arlington, VA,
to Washington, DC--that is Ms. Lewinsky's number--there was a
call of a minute, it says here. And then we have to ask, Does
this timing fit with the rest of the testimony?
Well, the answer is, no, it doesn't, because on three
separate occasions, Ms. Lewinsky testified that Ms. Currie came
over to pick up the gifts at 2 o'clock in the afternoon, an
hour and a half before the phone call. It is not as though we
have been hiding the ball on this, Senators. We discussed this
issue at length in our trial brief, and the managers do seem to
have recognized at least some of the problem, because they have
told you, albeit without the slightest evidentiary support,
that maybe Ms. Lewinsky just miscalculated a little bit. Well,
maybe she just miscalculated a little bit three times. Look at
the record:
FBI interview, July 27: ``Lewinsky met Currie on 28th
Street outside Lewinsky's apartment at about 2 p.m. and gave
Currie the box of gifts.''
FBI interview, August 1: ``Lewinsky gave the box to Betty
Currie when Currie came by the Watergate about 2 p.m.''
Grand jury testimony, 3 weeks later: ``I think it was
around 2 p.m. or so, around 2:00 in the afternoon.''
The managers speculate that if only the independent counsel
had had this phone record when they were interviewing Ms.
Lewinsky, they could have refreshed her recollection. Having
been one, I can tell you, that's prosecutor speak for ``if we'd
only known about that darn record, we could have gotten her to
change her testimony.''
But the managers have one other problem that they didn't
address. The phone record--if we can go back to that for a
moment--the phone record shows a call lasting 1 minute. All of
us who have cell phones know that really means it lasted well
short of a minute, because the phone company rounds things up
to the nearest minute, just to help us all with our
bookkeeping. [Laughter.]
So now it will be necessary not only for Ms. Lewinsky's
memory to be refreshed about the hour of the pickup, but to
explain how the arrangements for it could have been made
between Ms. Lewinsky and Ms. Currie in somewhere between 1 and
60 seconds.
Putting these factual difficulties aside, this charge must
fail for another reason. As you all know from presentations
earlier, the President gave Ms. Lewinsky several gifts on the
very day that they met, December 28. Faced with having to
explain why on the day that the President and Monica Lewinsky
were conspiring to conceal gifts from the Jones' lawyers the
President gave her additional ones, the managers surmised that
the real purpose was because it was part of a subtle effort to
keep Ms. Lewinsky on the team, but in truth the only reasonable
explanation for these events is the one the President gave to
the grand jury. He was simply not concerned about gifts. He
gave a lot, he got a lot, and he saw no need to engage in any
effort to conceal them.
The President did not urge Ms. Lewinsky to conceal the
gifts he had given her and, of course, he did not lie to the
grand jury about that subject.
The next point I want to discuss with you is the statements
the President made to Betty Currie on the day after the Jones
deposition, January 18 of last year. There is no disputing the
record, no conflict in testimony that the President did meet
with his secretary, Betty Currie, on the day after the Jones
deposition and they discussed Monica Lewinsky.
The managers cast this conversation, this recitation, this
series of statements and questions put by the President to Ms.
Currie in the most sinister light possible and allege that the
President attempted to influence the testimony of a ``witness''
by pressuring Ms. Currie to agree with an inaccurate version of
the facts surrounding his relationship with Ms. Lewinsky.
President Clinton has adamantly denied that he had any such
intention, and that denial is fortified by the undisputable
factual record establishing that Betty Currie neither was an
actual or a contemplated witness in the Jones litigation, nor
did she perceive that she was being pressured in any respect by
the President to agree with what he was saying.
First, Ms. Currie's status as a witness in the only
proceeding the President knew about at that moment, the Jones
case, Ms. Currie was neither an actual nor a prospective
witness. As to the only proceeding in which she ultimately
became a witness, no one would suggest, managers, no one else
would suggest the President knew that the independent counsel
was conducting an investigation into his activities.
In the entire history of the Jones case, Ms. Currie's name
had not appeared on any of the witness lists, nor was there any
reason to suspect Ms. Currie would play a role in the Jones
case. Discovery was down to its final days. The managers
speculate that the President's own references to Ms. Currie
during his deposition meant she was sure to be called by the
Jones lawyers. Yet, in the days, weeks following the
deposition, the Jones lawyers never listed her, never contacted
her, never added her to any witness list. They never deposed
her; they never noticed the deposition.
Indeed, when the independent counsel interviewed the Jones
lawyers, they apparently neglected to ask whether they had ever
intended to call Betty Currie as a witness. One can be sure
that if such an intent existed, they would have asked and it
would have been included in the referral.
Moreover, it is a sure bet that the Jones lawyers already
knew about Betty Currie and her relationship with Monica
Lewinsky. Why? Because we know from her own recorded telephone
conversations that Ms. Tripp had been in contact with the Jones
lawyers for months, and we know that she spent the evening
before the President's deposition telling them everything she
knew.
It didn't take a few references to his secretary by the
President to trigger a subpoena for Betty Currie if they had
ever wanted to do that, and they never did. Nor did the
President ever pressure Ms. Currie to alter her recollection.
Despite the prosecutor's best efforts to coax Ms. Currie into
saying she was pressured to agree with the President, Ms.
Currie adamantly denied it.
Let me quote just briefly a few lines of her grand jury
testimony:
Question: 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?
Answer: None whatsoever.
Question: That was your impression, that he wanted you to
say--because he would end each of the statements with
``Right?'', with a question.
Answer: I do not remember that he wanted me to say
``Right.'' He would say ``Right'' and I could have said,
``Wrong.''
Question: But he would end each of those questions with a
``Right?'' and you could either say whether it was true or not
true?
Answer: Correct.
Question: Did you feel any pressure to agree with your
boss?
Answer: None [whatsoever].
Now, to understand on a human level why the President
reached out to Betty Currie on the day after his deposition,
you need only to understand that he had just faced unexpected
detailed questions about his worst nightmare. As he candidly
admitted to the grand jury, he had long feared that his
relationship with Ms. Lewinsky would ultimately become public.
Now, with questioning about her in the Jones case, publication
of the first Internet article, the day of reckoning had
arrived. The President knew that a media storm was about to
erupt. And it did.
Now, if you are looking for evidence on which to base an
inference about the President's intentions with respect to Ms.
Currie's testimony, look what he said to her when he knew that
she was going before the grand jury.
And then I remember when I knew she was going to have to
testify to the grand jury, and I, I felt terrible because she
had been through this loss of her sister, this horrible
accident Christmas that killed her brother, and her mother was
in the hospital. I was trying to do--to make her understand
that I didn't want her to, to be untruthful to the grand jury.
And if her memory was different than mine, it was fine, just go
in there and tell them what she thought. So, that's all I
remember.
The President of the United States did not tamper with a
witness.
Now next, the managers argue that Mr. Clinton corruptly
encouraged Ms. Lewinsky to submit a false affidavit to the
Jones lawyers and to lie if she were ever deposed. But the
uncontroverted evidence refutes that charge. Indeed, Ms.
Lewinsky herself has repeatedly and forcefully denied that
anyone ever asked her to lie. There is no way to get around
that flat denial, even with the independent counsel's addition
of the word ``explicitly.'' There was no explicit, implicit, or
any other direction to Ms. Lewinsky to lie. Indeed, the only
person to whom Ms. Lewinsky said anything inconsistent with her
denial was the ubiquitous Ms. Tripp. And, as Ms. Lewinsky later
told the grand jury:
I think I told her that, you know, at various times the
President and Mr. Jordan had told me I have to lie. That wasn't
true.
Left with this record, the managers resort to arguing that
Ms. Lewinsky understood that the President wanted her to lie,
that he could not have wanted her to file an affidavit
detailing their relationship. But the only factual support for
this theory recited by the majority is the testimony of Ms.
Lewinsky that, while the President never encouraged her to lie,
he remained silent about what she should have to say or do, and
by such silence she said, ``I knew what he meant.''
The very idea that the President of the United States
should face removal from office, not because he told Monica
Lewinsky to lie or anything of this sort, but because he was
silent and Ms. Lewinsky ``knew what he meant,'' is, I suggest,
more than troubling.
So to bolster their flawed ``I knew what he meant'' theory,
the managers assert that the President knew the affidavit would
have to be false in order for Ms. Lewinsky to avoid testifying.
But the evidence here, too, is that the President repeatedly
testified that Ms. Lewinsky could and would file a truthful
affidavit. And, of course, Ms. Lewinsky herself has made it
clear that her definition of the critical term that might be
used in such an affidavit was consistent with the President's.
Further testimony from Ms. Lewinsky herself repudiates any
suggestion that she was ever encouraged by anyone to lie if she
were deposed in the Jones case. In a colloquy with a grand
juror, she explicitly and unequivocally rejected the notion
that President Clinton encouraged her to deny the relationship
after she learned she was a witness. Referring to discussions
about the so-called cover stories that the managers allege were
to be used in her testimony, a grand juror asked her:
It is possible that you had these discussions after you
learned that you were a witness in the Paula Jones case?
Answer: I don't believe so, no.
Question: Can you exclude that possibility?
Answer: I pretty much can.
The managers would have you conclude the contrary from a
brief snippet of the conversation on December 17 in which Ms.
Lewinsky said that at some point, ``I don't know if it was
before or after the subject of the affidavit came up, the
President sort of said, `Well, you know, you can always say you
were coming to see Betty or that you were bringing me letters.'
''
But Ms. Lewinsky told the FBI when she was interviewed,
``To the best''--this is the FBI talking--``To the best of Miss
Lewinsky's memory, she does not believe they discussed''--in
this December 17 conversation--``the content of any deposition
that Miss Lewinsky might be involved in at a later date.'' And
she told the grand jury the same thing. Describing the very
same December 17 conversation, she testified that she and the
President did not discuss the idea of her denying their
relationship.
Ms. Lewinsky: 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 it was 2:30, and, I mean, the
conversation I'm thinking of mainly would have been December
17, which was--
A juror interjects: The telephone call?
Ms. Lewinsky: Right. And it was, you know, 2, 2:30 in the
morning. And I remember the gist of it, and I really don't
think so.
And it is on that basis that the managers suggest that the
President obstructed justice.
Fourth, article II alleges that the President obstructed
justice by denying to his closest aides he had a sexual
relationship with Monica Lewinsky, the very same denial he made
to his family and his friends and to the American people. These
allegedly impeachable denials took place in the immediate
aftermath of the public revelation of the Lewinsky matter, at
the very time that the President was denying that relationship
to the entire country on national television. Having made the
announcement to the whole country, it is simply absurd, I
suggest to you, to believe that he was somehow attempting
corruptly to influence his senior staff when he told them
virtually the same thing at the same time.
Now, the managers do not allege--as they could not--that
the President attempted to influence the aides' testimony about
what they themselves knew concerning his relationship with Ms.
Lewinsky--had they seen her in a particular place; had they
talked to her; had they talked to the President about it before
all of this broke.
Indeed, the only evidence these aides had was the very same
denial that the entire American people had. Indeed, every
member of the grand jury had probably seen this denial by the
President on their own television sets. Under the theory
proffered by the managers, in essence, every person who heard
the President's denial could have been called to the grand jury
and ordered to create still an additional charge of obstruction
of justice.
The point here was not that the President believed that his
staff would be witnesses and somehow wanted to influence their
testimony. As he explained to the grand jury, what he was
trying to do was avoid being a witness. But, of course, he had
to say something to them. He had to say, in the aftermath of
January 21, something to reassure them. And he told them
exactly what he told every one of you, everyone in the gallery,
and everyone who watched television in those days following
January 21.
And let me just make this one point. There is absolutely no
conflict in the evidence here, despite the managers' somewhat
puzzling suggestion that the Senate's deliberations would
somehow be aided if two of the senior staff members could be
called as witnesses. Not only is there no conflict in the
evidence, there is absolutely no basis for the charge that the
President was in any way seeking to influence the testimony of
his staff before the grand jury.
Now we come to the last of the obstruction charges. The
managers ask you to find that the President of the United
States employed his friend, Vernon Jordan, to get Monica
Lewinsky a job in New York, to influence her testimony, or
perhaps in a somewhat forlorn effort to escape the reach of the
Federal Rules of Civil Procedure, to hide from the Jones
lawyers and the 8 million people who live in that city.
There is, of course, absolutely no evidence to support this
conclusion, and so the managers have constructed out of sealing
wax and string and spiders' webs a theory that would lend to a
series of otherwise innocuous and, indeed, exculpatory events,
a dark and sinister past.
The undisputed record establishes the following: one, that
Lewinsky's job search began on her own initiative; two, the
search began long before her involvement in the Jones case;
three, the search had no connection to the Jones case; four,
Vernon Jordan agreed to help her, not at the direction of the
President but at the request of Ms. Currie, Mr. Jordan's long-
time friend; five, the idea to solicit Mr. Jordan's assistance
again came not from the President but from Ms. Tripp.
As I thought about this aspect of it, I have to say I was
reminded of Iago and Desdemona's handkerchief. But we will pass
on that.
Both Ms. Lewinsky and Mr. Jordan have repeatedly testified
that there was never an agreement, a suggestion, an
implication, that Ms. Lewinsky would be rewarded with a job for
her silence or her false testimony. As Mr. Jordan succinctly
put it, ``Unequivocally, indubitable, no.''
It was only to appease Ms. Tripp that Ms. Lewinsky
ultimately told her that she had told Mr. Jordan she wouldn't
sign the affidavit until she had a job. But as she told the
grand jury, ``That was definitely a line based on something
that Linda had made me promise on January 9.''
Now while the managers dismiss as irrelevant Ms. Lewinsky's
job search before December, the fact is, Ms. Lewinsky
contemplated looking for a job in New York as early as July
1997, and her interest was strengthened in early October when
Ms. Tripp told her it was unlikely she would ever get another
job in the White House. It was then Ms. Tripp and Ms. Lewinsky
discussed the prospect of having Vernon Jordan help her get a
job in New York and Ms. Lewinsky mentioned that idea to the
President.
Later in October, as part of this ongoing search,
Ambassador Richardson agreed to interview Ms. Lewinsky at the
suggestion of then-Deputy Chief of Staff Podesta who had been
asked to help by Ms. Currie. And Ambassador Richardson offered
her a job and she had that job in hand throughout the
supposedly critical December timeframe, didn't actually turn it
down until early January. And, further, in late October or
early November, she actually went to her boss at the Pentagon
and asked for his help to find a job.
Meanwhile, now we come to what, for the managers, is the
very heart of the case. On November 5, Ms. Lewinsky had a
preliminary meeting with Mr. Jordan and they discussed a list
of potential employers. And although the managers then contend
that nothing happened from November 5, that first meeting,
until December 11, signifying, as they see it, that it must
have been Ms. Lewinsky's appearance on the witness list that
galvanized Mr. Jordan into action, that is simply false.
Ms. Lewinsky had a followup telephone conversation with Mr.
Jordan around Thanksgiving in which he told her he was working
on the job search and he asked her to call him in the first
week of December. The President learned Ms. Lewinsky was on the
Jones witness list sometime on December 6. He met with Mr.
Jordan the very next day, December 7. But oddly, if one adopts
the managers' view, there was no discussion of Ms. Lewinsky or
the Jones case, much less job searches. Then on December 8, Ms.
Lewinsky called Mr. Jordan's office and made her appointment to
meet with him on December 11.
Now the President absolutely had nothing to do with that
call or that appointment and Mr. Jordan denies that there was
any intensified effort to find Ms. Lewinsky a job. He said,
``Oh, no, I do not recall any heightened sense of urgency in
December, but what I do recall is that I dealt with it when I
had time to do it.''
Now for my second example of prosecutorial fudging. The
managers have devoted much attention to the magic date of
December 11, arguing vigorously that it was on that day that
getting the job for Ms. Lewinsky suddenly became a matter of
high priority for the President and hence to Mr. Jordan. Why is
that so? Well, again, I will let the majority counsel for the
Judiciary Committee tell you in his own words during his
closing argument.
Again, you should have this before you if you can't see the
chart.
But why the sudden interest, why the total change in focus
and effort? Nobody but Bettie Currie really cared about helping
Ms. Lewinsky throughout November, even after the President
learned that her name was on the prospective witness list. Did
something happen to move the job search from a low to a high
priority on that day? Oh, yes, something happened. On the
morning of December 11, 1997, Judge Susan Webber Wright ordered
that Paula Jones was entitled to information regarding any
State or Federal employee with whom the President had sexual
relations or proposed or sought to have sexual relations. To
keep Monica on the team was now of critical importance.
Remember, they already knew that she was on the witness list,
although nobody bothered to tell her.
That same theme was picked up last week by Mr. Manager
Hutchinson, both in his recitation of events of that day and in
the exhibits he showed you. If I am lucky, we will place on the
easel to my right the exhibit that Manager Hutchinson used.
You will see the order that this exhibit places on the
critical events of November and December. November 5 meeting,
the no-job-search action; the President receives a witness
list. And then of special interest, December 11, first event,
``Judge Wright order permitting questions about Lewinsky.''
Too, on December 11, the ``President and Jordan talk about job
for Monica.''
Now, let me ask you to focus on what Mr. Hutchinson told
you about the events of December 11. Sounding somewhat like
majority counsel, he asks:
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 that 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.
Now, it appears to me that the manager was suggesting--
again, with not a great deal of subtlety--that Vernon Jordan,
one of this country's great lawyers and great citizens, was
prepared to perjure himself to save the President.
So let's just imagine the managers' examination of Mr.
Jordan in this Chamber that would let you make your own
judgment about his truthfulness.
Question: Mr. Jordan, isn't it a fact that you met with Ms.
Lewinsky on December 11 to help get her a job?
Answer: Yes.
Question: And isn't it a fact that before and after you met
with her, you made calls to potential employers in New York?
Answer: Yes.
Question: Isn't it true that the reason for all of this
activity on December 11 was that Judge Wright had on that very
day issued an order authorizing the Jones lawyers to depose
certain women like Miss Lewinsky?
Answer: No.
Question: What do you mean ``no''? Isn't it true that the
judge had issued an order before you met with Ms. Lewinsky and
before you made the calls?
Answer: I had no knowledge of any such order. The fact that
Ms. Lewinsky was a potential witness had nothing to do with my
helping. I made an appointment to see her 3 days earlier.
Question: Well, isn't it a fact that Judge Wright filed her
order on December 11 before you met with Ms. Lewinsky?
Answer: Well, actually no.
Let me show you the official report of the judge's
discussion with the lawyers in the Jones case on that date. You
have this before you as well. There's a conference call between
the judge and the lawyers, which is memorialized in a formal
document prepared by a clerk and on file in the case in
Arkansas. It notes that the conference call began at 5:33 p.m.
central standard time. If I have my calculations right, that is
6:33 p.m. in Washington.
I want to stop here for a second so that you know where Mr.
Jordan was when that happened. Let me see the next chart.
By the way, this is Mr. Jordan testifying:
I was actually on a plane for Amsterdam by the time the
judge issued her order.
So he testified in the grand jury.
I left on United flight 946 at 5:55 from Dulles Airport and
landed in Amsterdam the next morning.
So the conference call begins at 6:33 eastern standard
time. The court takes up another variety of matters, and the
judge didn't even tell the lawyers that she was going to issue
an order on the motion to compel these various depositions
until the very end of the call, around 7:45 eastern standard
time, and the clerk would actually fax them a copy at that
point.
So we return to Mr. Jordan's mythical testimony. To
summarize, let me show you something that tells you what the
real sequence of events was on December 11. Vernon Jordan makes
a possible job call at 9:45, and another at 12:49, and another
at 1:07; he meets with Ms. Lewinsky from 1:15 to 1:45; he gets
on his plane at 5:55 in the afternoon, and an hour or so later
the lawyers are informed that the judge had issued her order.
In fact--just as a little filler--the President is out of
town and returns to Washington at 1:10 a.m. And actually, Judge
Wright's order is filed not on the 11th, but on the 12th.
Question: Oh, I see. Well, never mind.
Now, do any of you think that you need to look Mr. Jordan
in the eye and hear his tone of voice to understand that the
prosecutors have it wrong and have had, at least since the
majority counsels' closing argument?
You will also learn from us--but not from the managers--
that Mr. Jordan placed no pressure on any company to give Ms.
Lewinsky a job. Indeed, two other companies he called didn't
even offer her a job.
Just as the managers dramatically mistake the record
relating to Mr. Jordan's efforts to help Ms. Lewinsky find a
job, so, too, do they invent a nonexistent link between a call
Mr. Jordan made ultimately to Mr. Perelman, the CEO of
MacAndrews and Forbes, Revlon's parent, and the offer Ms.
Lewinsky finally received from Revlon with her signing of the
affidavit in the Jones case. We will demonstrate beyond any
question, once again, that conclusions the managers have drawn
are simply false.
Again, I'll begin with the fact that both Mr. Jordan and
Ms. Lewinsky testified that there was no such link between the
job and the affidavit, and the only person to ever suggest such
a link was, once again, Ms. Tripp. Now, I presume that it is
not the managers' intention to suggest that we bring Ms. Tripp
before you to explore her motivation for making that
suggestion.
Next, take Ms. Lewinsky's interview with a MacAndrews
official, which she described as ``having gone poorly''--a
characterization adopted by the managers for obvious reasons--
because it suggests that there was a desire on their part to
heighten the supposed relevance of the call Mr. Jordan made to
Mr. Perelman. In other words, under their theory, Ms.
Lewinsky's job prospects at MacAndrews and Forbes, or Revlon,
were caput until Vernon Jordan made the call and resurrected
her chances.
Unfortunately, like so much of the obstruction case, the
facts do not bear out this convenient theory. In fact, the man
who interviewed Ms. Lewinsky at MacAndrews was impressed with
her, and because there was nothing available in his area, he
sent her resume to Revlon where she was hired by someone who
did not know about Mr. Jordan's call to Mr. Perelman.
So much for obstruction by job search.
That, then, is an overview of the charges contained in
these articles. You will hear about them in greater detail than
I could offer you today when my colleagues speak in the next
two days. I want to bring my presentation to a close.
We are not here to defend William Clinton, the man. He,
like all of us, will find his judges elsewhere. We are here to
defend William Clinton, the President of the United States, for
whom you are the only judges. You are free to criticize him, to
find his personal conduct distasteful; but ask whether this is
the moment when, for the first time in our history, the actions
of a President have so put at risk the Government the framers
created that there is only one solution. You must find not
merely that removal is an acceptable option, that we will be OK
the day after you vote; you must find that it's the only
solution, that our democracy should not be made to sustain two
more years of this President's service. You must put that
question because the one thing that our form of Government
cannot abide is the notion that impeachment is merely one more
weapon a Congress can use in the process between the
legislative and executive branches.
Let me be very clear. We do not believe that President
Clinton committed any of the offenses charged by the managers.
And for the reasons we will set out at length over the next two
days, we believe the managers have misstated the record, have
constructed their case out of tenuous extrapolations, without
foundation, and have at every turn assumed the worst without
the evidence to support this speculation.
You put these lawyers in a courtroom and they win 10 times
out of 10.
But suppose we are wrong. Suppose that you find that the
President committed one or more of the offenses charged. Then
there remains only one issue before you. Whatever your feelings
may be about William Clinton, the man, or William Clinton, the
political ally or opponent, or William Clinton, the father and
husband, ask only this: Should William Clinton, the President,
be removed from office? Are 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? I am never
certain how to respond when an advocate on the other side of a
case calls up images of patriots over the centuries sacrificing
themselves to preserve our democracy. I have no personal
experience with war. I have only visited Normandy as a tourist.
I do know this: My father was on the beach 55 years ago, and I
know how he would feel if he were here. He didn't fight, no one
fought, for one side of this case or the other. He fought, as
all those did, for our country and our Constitution. As long as
each of us--the managers, the President's counsel, the
Senators--does his or her constitutional duty, those who fought
for the country will be proud.
We, the people of the United States, have formed a more
perfect Union. We formed it. We nurtured it. We have seen it
grow. We have not been perfect. And it is perhaps the most
extraordinary thing about our Constitution--that it thrives
despite our human imperfections.
When the American people hear the President talk to
Congress tonight, they will know the answer to the question,
``How stands the Union?'' It stands strong, vibrant, and free.
I close as I opened 2 hours ago, or 2\1/2\ hours ago.
William Jefferson Clinton is not guilty of the charges that
have been brought against him of committing perjury. He didn't
obstruct justice. He must not be removed from office.
Thank you.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
------
RECESS
Mr. LOTT. Mr. Chief Justice, in a moment the Senate will
recess until 8:35 this evening, at which time the Senate will
proceed as a body over to the House of Representatives as a
joint session to receive a message from the President.
Following the joint session, the Senate will adjourn until 11
o'clock tomorrow morning.
The Leader's Lecture Series is scheduled for tomorrow
evening at 6 o'clock in the Old Senate Chamber with former
President George Bush as guest speaker.
I now ask that the Senate stand in recess under the
previous order.
There being no objection, the Senate, at 3:33 p.m.,
recessed until 8:35 p.m.; whereupon, the Senate reassembled
when called to order by the Presiding Officer (Mr. Crapo).
------
OPENNESS ON THE IMPEACHMENT TRIAL
Mr. FEINGOLD. Mr. Chief Justice, I rise today in strong
support of opening Senate deliberations to the public during
the course of the impeachment trial against President Clinton.
I will therefore support the motion to be offered by Senators
Harkin and Wellstone to suspend the rules in order to open
these proceedings to public scrutiny.
In this trial, the U.S. Senate is charged by the
Constitution with deciding whether to remove from office a
President twice elected by the American people. Although I am
certain that every member of the Senate will undertake this
Constitutional responsibility with the utmost gravity and
perform ``impartial justice'' as our oath commands, I am
concerned that the American people will be shut out of this
process at some of its most crucial moments.
America's great experiment in democracy trusts the people
to elect a President in a process that consists of months of
public discussion, primaries, caucuses, debates, and finally an
election open to everyone who chooses to participate. In stark
contrast, the Senate's rules preclude the public from seeing
its deliberations on whether an impeachment case will be
dismissed, whether witnesses will be called or further evidence
introduced, and even the ultimate debate regarding the guilt or
innocence of the President. In short, Mr. Chief Justice, the
Constitution trusts the people to elect a President, but our
current Senate impeachment rules do not trust them to have even
the most passive involvement in our deliberative process, even
when the debate might result in overturning the people's
judgment in a national election.
Let me take a moment to describe again for my colleagues
how our current impeachment rules work. The Senate is not only
the trier of fact in this case, but it also acts as the
ultimate arbiter of law. It can overturn the Chief Justice's
rulings on evidentiary questions and make decisions, which
cannot be appealed to any court, on motions. But the Senate's
impeachment rules, which were first drafted in connection with
the Andrew Johnson impeachment and most recently revisited in
1986, do not permit the Senate to debate any of the decisions
that it must make, except in closed session. In fact, the rules
provide that decisions on evidentiary rulings are to be made
with no debate whatsoever.
Other motions can be debated, but only in private. So, for
example, we expect that after the presentations are made on
both sides, a motion will be made to dismiss the case against
the President. Under our current rules, the House managers and
the President's lawyers will argue that motion, but the Senate
cannot debate it in open session. In fact, if a majority of the
Senate wants to preclude debate entirely, it can do that by
simply voting against a motion to take the Senate into private
session for deliberations. Thus, before we vote on what could
be a dispositive motion in this case, our only options are to
discuss it behind closed doors or not discuss it at all.
I think this is wrong. We need a chance to debate this
motion as Senators. I want to hear from my colleagues before I
vote, not just afterward on television. I intend to carefully
and respectfully entertain my colleagues' arguments, and I
refuse to rule out the possibility that a well-reasoned
argument offering a different perspective will influence my
decision. But the American people also deserve to hear what we
say to each other as we debate this motion. I see little to be
gained from closing these deliberations and much to be lost. We
must do everything we can to ensure public confidence in our
fairness and impartiality. How can we expect the public to have
faith in us if we close the doors at the very moment when we
finally will speak on the dispositive questions of this
historic trial?
Opponents of openness argue that in the only Presidential
impeachment trial in our Nation's history, that of Andrew
Johnson, the Senate's deliberations were closed. While it may
be tempting to rely on the precedent of the one previous
Presidential impeachment trial, which occurred one hundred and
thirty years ago, I believe we should take a fresh look at this
issue. In particular, we should consider how drastically the
rules of the Senate and the composition of the Senate have
changed.
The Senators who presided over President Johnson's
impeachment were not elected by the American people directly,
but were chosen by the various State legislatures, and thus
were not directly responsive to the popular will. Today, we as
Senators represent the citizens of our state directly and we
are accountable to them at the ballot box. Furthermore, until
1929, the Senate debated nominations and treaties in closed
sessions; and until 1975, many committee sessions took place in
private. Today, all of our proceedings are open to the public,
except in rare cases involving national security. The rules
governing membership in the Senate as well as the openness of
Senate proceedings have consistently evolved throughout our
history toward greater public involvement. The rules governing
impeachment trial deliberations must move in that direction as
well.
Opening these proceedings as Senators Harkin and Wellstone
have proposed will make the American public feel more involved
in the process. With the percentage of voters who cast their
ballot on election day declining in each succeeding election
and polls showing that the public feels increasingly alienated
from the political process; and with people openly questioning
the relevance of their elected representatives and the Congress
as a whole to their daily lives, we must lay open to the
American people our deliberations on the most crucial decision
short of declaring war that the Constitution ultimately
entrusts to us. Democracy can only flourish when the people
feel that they have a stake in the process. Conducting our
impeachment deliberations in private sends the message that
when the really important decisions need to be made, the
American public is not welcome to observe. This is precisely
the wrong message to send.
Thus far in the impeachment process, there has been little
to celebrate. Most Americans have concluded that the House of
Representative's inquiry was plagued by partisanship. Many fear
that the Senate will do the same. With the eyes of the country
upon it, the Senate has an opportunity to restore America's
trust in the constitutional process. Open deliberations will
enhance the public's understanding and discussion of this case.
It may even serve to chip away some of the pervasive cynicism
in our country as Americans watch how their elected
representatives conduct themselves during consideration of the
articles. I trust that my colleagues will reach their decisions
on the merits after careful, reasoned and informed
consideration of the evidence and the arguments presented. If
my trust in my colleagues is justified, our deliberations will
be thoughtful, high-minded, vigorous, and non-partisan. And if
we have that deliberation in the open, it will be remembered as
one of the Senate's finest hours.
------
Wednesday, January 20, 1999
[From the Congressional Record]
OPEN SENATE DELIBERATIONS
Mr. HARKIN. Mr. Chief Justice, I take the floor today with
my colleague and friend from Minnesota, Senator Wellstone, to
speak about an issue that is going to be coming up here in the
next several days that is going to have an importance to all of
the American people and, indeed, to future generations. That is
the issue of whether or not the Senate, in its deliberations on
the impeachment of President Clinton, will do it in secret or
will do it in public; will do it behind closed doors, behind a
curtain of secrecy, or do it openly so that the American people
know what we are doing. I want to take just a few minutes to
lay out the case for why I believe it should be open.
Last week, Mr. Chief Justice, I raised an objection during
the trial to the continued use of the word ``jurors,'' as it
pertains to Senators sitting in a Court of Impeachment. I did
that for a number of reasons, because we are not jurors. We are
more than that. We are not just simply triers of fact. We are
not just simply finders of law. But sitting as a Court of
Impeachment, we have a broad mandate, an expansive role to
play. We have to take everything into account, everything from
facts--yes, we have to take facts into account--we have to take
law into account, but we also have to take into account a broad
variety of things: how the case got here; what it is about; how
important it is; how important is this piece of evidence
weighed against that; what is the public will; how do the
people feel about this; what will happen to the public good if
one course of action is taken over another. These are all
things we have to weigh, and that is why I felt strongly that
Senators, in our own minds and in the public minds, should not
be put in the box of simply being a juror.
One other aspect of that is if, in fact, we are jurors, the
argument went, then juries deliberate in secret and, therefore,
if we are a jury, we should deliberate in secret. Now that we
know we are not jurors, I believe that argument has gone away.
I believe that we are, in fact, mandated by the Constitution to
be more than that.
I paraphrase an article that appeared in the Chicago
Tribune by Professor Steven Lubet--he is a professor of law at
Northwestern University--in which he pointed out that the
Constitution does not allow us the luxury of being simply
jurors. We have to decide; we have to judge.
I ask unanimous consent that Mr. Lubet's article be printed
in the Record.
There being no objection, the article was ordered to be
printed in the Record, as follows:
[From the Chicago Tribune, Jan. 13, 1999]
Stop Calling Them Jurors
(By Steven Lubet)
Some day soon, the actual impeachment trial of William Jefferson
Clinton will begin, with 100 United States senators sitting in
judgment. The senators, in anticipation of the event, keep referring to
themselves as a jury. On a recent edition of ``Larry King Live,'' for
example, no fewer than six of them (three Republicans and three
Democrats) virtually chanted the mantra that it was their duty to act
as ``impartial jurors.'' It is tempting to agree.
After all, they have been sworn to do justice, they are going to
consider evidence and the resulting verdict must be either conviction
or acquittal.
But in fact, the senators are not jurors, and the repeated use of
that term is dangerously misleading.
In an ordinarily trial, the decision-making responsibility is
divided between judge and jury. The judge makes rulings of law, while
the jury's function is severely limited to determination of facts. In
other words, the jury only decides ``what happened'' while the judge
decides almost everything else. That is not the case with impeachment.
Article I of the Constitution confers on the Senate the ``sole power to
try all impeachments.'' That power is comprehensive--including law,
facts and procedure--and it is to be exercised in its entirety by the
Senate itself.
(It is true that the chief justice is called upon to ``preside''
over presidential impeachments, but only because the vice president--
who is ordinarily the Senate's presiding officer--is disqualified by an
obvious conflict of interest. The chief justice does not sit as a judge
in any ordinary sense, but more as a moderator or chair. He holds no
binding legal or decisional power.)
And if there were any doubt, Article III of the Constitution
actually makes this explicit, providing that ``the trial of all crimes,
except in cases of impeachment, shall be by jury.'' So, what are the
senators, if not jurors? In fact, they are all judges, or if you
prefer, members of the court of impeachment, each one delegated full
power to decide every issue involved in the case.
This distinction is crucial. President Clinton's most fervent
detractors have argued that the House of Representatives, in exercise
of its own constitutional power, has conclusively determined the
``impeachability'' of the alleged offenses, leaving the senatorial jury
the limited task of deciding whether the charges are true. But that is
wrong. The Senate's role is not at all confined to the ascertainment of
facts. Under the Constitution, the senators need not--they may not--
defer to the House of Representatives on the critical question of
``impeachability.''
Thus, the Senators must decide not only whether Clinton lied to the
grand jury, but also whether so-called ``perjury about sex''
constitutes a high crime or misdemeanor of sufficient gravity to
justify removing this president from office.
It is easy to understand why a senator would want to be a juror.
The persona is so engaging: modest, contemplative, nearly anonymous--
the humble citizen called to civic duty. But the constant references to
senators-as-jurors can only serve to diminish their role and distract
them from the expansive nature of their duty. It is not their job, as
it would be a jury's, simply to decide some facts and then move on. The
Constitution does not allow them that luxury.
The senators are not determining just one case; their concern must
be far greater than the fate of a single man. Rather, they are setting
a legal and political precedent that may well guide our Republic for
the next 130 years. Future generations will look back upon this Senate
for direction whenever potential impeachments arise. Our descendants
will not want to know only what happened, but also what principles
govern the removal of the president. And so, the senators cannot merely
decide--they have to judge.
Mr. HARKIN. Mr. Chief Justice, a couple of other things
regarding openness. The hallmark of our Republic and of our
system of government is openness and transparency. The history
of this Senate has been one of opening the doors. The first
three sessions of the U.S. Senate were held in secret behind
closed doors, the whole sessions. Up until 1929, all
nominations and treaties were debated behind closed doors. In
1972, 40 percent of all the committee meetings were done behind
closed doors. In fact, up until 1975, many conference
committees, and still committee meetings, were held behind
closed doors.
We have washed all that away. We have found through the
years that the best political disinfectant is sunshine. I
believe we are a better Senate, a better Congress and a better
country for opening the doors and letting people see what we do
and how we reach the decisions we reach.
Mr. Chief Justice, there has been a spate of editorials
recently regarding opening up the trial. I quote one from the
Washington Post dated January 14. It says:
It seems only right . . . that the Senate should be
expected to debate in public any charge for which it is
demanding of the president a public accounting.
This is not to prevent senators from caucusing in private
or even meeting unofficially, as senators did last week in
crafting the procedural compromise that will govern the trial.
Confidential contacts of this sort can certainly be
constructive. But when the Senate meets as the Senate and
considers arguments in its official trial proceedings, it
should not do so behind closed doors. Absent the most unusual
of circumstances, it should conduct its deliberations openly,
thereby ensuring that the final adjudication of Mr. Clinton's
case is as transparently accountable as possible.
The New York Times basically said the same thing. The Los
Angeles Times, the Des Moines Register and Roll Call. I think
Roll Call basically said it best when they said:
. . . this is not a court trial. . . . It is inherently a
political proceeding. . . . Their constituents [our
constituents], the citizens of America, have a right to see how
they perform and to fully understand why they decided to retain
or remove their elected President.
I ask unanimous consent that all of these editorials be
printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
[From the Washington Post, Jan. 14, 1999]
An Open Trial
Sens. Tom Harkin (D-Iowa) and Paul Wellstone (D-Minn.) have
announced that they will move to suspend certain portions of the
Senate's impeachment rules to permit the full Senate trial of President
Clinton to be conducted in the public's view. As the more than 100-
year-old rules stand now, testimony can be taken with the cameras on
and the doors open unless a majority votes to close the session, but
any time the senators debate a motion and, for that matter, when they
consider the final articles, they will do so in secret. This is exactly
the wrong way to conduct a trial whose purpose is to pass public
judgment on the conduct of the president. The Harkin-Wellstone proposal
to do the whole trial in public offers a far better approach.
The desire to avoid public argument is understandable, particularly
in a case as filled with salacious material as the Clinton trial must
necessarily be. But it is not the job of the Senate to protect citizens
from the rationale for the Senate's actions, nor are senators entitled
to be shielded from the embarrassment of discussing out loud the tawdry
evidence at issue in this case.
The often drawn analogy between senators and jurors, whose
deliberations are kept secret, also fails to offer a persuasive reason
to conduct secret debates. Jurors, after all, did not seek public
office and are not permitted, as their trials are progressing, to go on
talk shows to discuss their own consideration of the evidence. The
senators are, in this proceeding, acting as far more than simple
jurors, and it makes little sense for this most solemn obligation of
the Senate to face less sunshine than does a routine legislative
matter. It seems only right, rather, that the Senate should be expected
to debate in public any charge for which it is demanding of the
president a public accounting.
This is not to prevent senators from caucusing in private or even
from meeting unofficially, as senators did last week in crafting the
procedural compromise that will govern the trial. Confidential contacts
of this sort can certainly be constructive. But when the Senate meets
as the Senate and considers arguments in its official trial
proceedings, it should not do so behind closed doors. Absent the most
unusual of circumstances, it should conduct its deliberations openly,
thereby ensuring that the final adjudication of Mr. Clinton's case is
as transparently accountable as possible.
______
[From the New York Times, Jan. 13, 1999]
Open the Senate
Since the trial of President Andrew Johnson in 1868, the Senate has
conducted its debates on procedures and even the final verdict of
impeachments in closed session. The time has come for that tradition to
be altered, at least for the trial of President Clinton. Two Democratic
Senators, Tom Harkin and Paul Wellstone, have announced that they will
seek to change the rule on closed debates after the opening
presentations begin tomorrow. Whatever would be gained by allowing
senators to deliberate privately, the overriding requirements is for
the American public to see and judge firsthand whether justice is being
done.
Some senators argue that the closed session last Friday, at which
Democrats and Republicans worked out a compromise on trial procedures,
showed that privacy can serve a constructive purpose. But the Harkin-
Wellstone proposal would not preclude the Senate's adjourning and
meeting outside the chamber at caucuses like the one last week. The
principle that should prevail is simply that proceedings that could
lead to the removal of a President should be conducted in open session,
especially since many Americans have questions about the fairness of
the House impeachment proceedings. Closing the Senate's deliberations
on so grave a matter would undermine public confidence and be an
affront to citizens' rights to observe the operations of government.
Senators love their customs and ceremonies, but their institution's
commanding trend has been toward openness. At the time of the nation's
founding, all Senate sessions were closed. Until 1929, the Senate
debated nominations and treaties in closed sessions. Until the reforms
of the 1970's, many Congressional hearings and meetings were in closed
session. No one would seriously argue that these old practices should
have been preserved. As for impeachment trials, it is worth noting that
they were open most of the 19th century. Privacy was adopted only for
the trial of President Johnson.
Some senators seem to believe that they should be regarded as
jurors in a trial, and therefore allowed a measure of confidentiality.
But the senators have privileges not available to regular juries. They
may ask questions, speak publicly about the process and make motions.
It is within their power to change the rules on closing the session,
which would take a two-thirds majority to be adopted. If openness
drives senators toward partisanship or prolixity, as some fear, let
public scrutiny serve as the governor on their excesses.
______
[From the Los Angeles Times, Jan. 13, 1999]
Keep Trial Fully Open
Unless the Senate changes one of its rules for conducting President
Clinton's impeachment trial, the public will not be allowed to witness
crucial parts, including a possible climactic debate on whether to
convict Clinton on charges of perjury and obstruction of justice. The
Senate should change this archaic rule; the trial's inestimable
national importance demands that the proceedings be completely open.
For guidance in the trial, which opens Thursday, the Senate is
relying on rules adopted in 1868, when Andrew Johnson became the first
and until now the only president to be tried for alleged high crimes
and misdemeanors. One of those rules compels ``the doors to be closed''
whenever senators debate among themselves, something they are allowed
to do only when deciding procedural issues--such as whether witnesses
should be called--or when they reach a verdict. Otherwise, by the rules
of 1868, the senators must sit in silence as House prosecutors present
the case against Clinton and White House lawyers defend him. Any
questions the senators have must be submitted in writing to the chief
justice, who may or may not choose to ask them.
The precedents embedded in the Johnson trial rules should not be
put aside lightly. Without them the Senate could find itself mired in
prolonged and divisive arguments over how to proceed. But no precedent
is sacred. Times change and rules must change with them. Congress has
many times discarded procedures and traditions that came to be seen as
inimical to the need for free discussion in an open society. For
example, as Sens. Tom Harkin (D-Iowa) and Paul Wellstone (D-Minn.)
note, in the earliest days of the republic all of Congress' proceedings
were secret. Until 1929 nomination hearings were conducted behind
closed doors. Until 1975 many committee sessions similarly took place
outside public scrutiny.
The Senate of Andrew Johnson's day was a far different place from
the Senate of today. Its members were not chosen by the electorate--
that did not come until 1913--but rather were appointed by state
legislatures and so were not directly answerable to the popular will.
And much of the Senate's business was routinely conducted in secret.
Today, except when matters of national security are being
discussed, Congress' sessions are open--in the sunshine, as they say in
the Capital. If ever there was an occasion when the sun should be
allowed fully to shine in, it is in the Clinton impeachment trial.
A two-thirds vote is needed to change Senate rules. Harkin and
Wellstone, the major proponents of full openness, know the difficulty
of getting 65 colleagues to agree with them. But they are leading a
fair and just cause. Put simply, Americans have a right to witness this
process in all its facets. The people's representatives in the Senate
now have the responsibility to assure that right.
______
[From Roll Call, Jan. 14, 1999]
No Secret Trial
Imagine the spectacle. On, say, March 5, cameras are turned on in
the Senate and the roll is called on the articles of impeachment
against President Clinton. The votes are taken, the decision is made--
and then there is a mad rush for Senators to explain why they voted as
they did. But their actual deliberations prior to the voting remain
secret.
There is not even an official record kept, so reconstructing one of
the most portentous debates in American history depends on the memories
and notes of Senators and staffers.
This secrecy scenario is exactly what's in store unless the Senate
changes its rules, as proposed by Sens. Tom Harkin (D-Iowa) and Paul
Wellstone (D-Minn.), to open the impeachment trial to the media and the
public.
In fact, it will take strong action from Senate leaders to open the
trial, since changing Senate rules requires a two-thirds vote. We urge
Democratic and Republican leaders to exercise their influence to
prevent their institution from being accused of conducting a ``secret
trial.''
The allegation could turn out to be true. Senate rules call not
only for final deliberations on impeachment to be conducted in secret,
but any deliberations. This means that motions to dismiss the case and
consideration of whether to call witnesses might be done in secret and
with no subsequent printing of the proceedings in the Congressional
Record. All but arguments by House managers and the President's
lawyers, witness testimony, if any, and the actual vote could take
place behind a shroud.
Some Senators say they would not have been able to reach their
bipartisan agreement on procedure last Friday if the session had been
open. If statesmanship requires secrecy--which we doubt--then
arrangements can be made for informal closed discussions. But all
substantive discussions should be open. We have some sympathy for the
view that some subject matter conceivably could be so sexually explicit
that Senators will be ashamed to be seen discussing it in public. But
it's not worth closing off almost the entire Clinton trial over this
possibility.
Conceivably--if this is what it takes to sway skittish Senators--
the rules could be altered to permit some discussion to be held in
closed session with a record kept. But the House debate on impeachment
could have been rated PG-13, and let's face it: The Clinton case record
is already so raunchy that there's little that schoolchildren haven't
already heard. So the proceedings ought to be open.
It will be argued: In court trials, jury deliberations are
conducted in secret. But this is not a court trial. It is inherently a
political proceeding. The ``jurors'' are not ordinary citizens unused
to the glare of publicity. They will be up for reelection and judged
partly on the basis of how they handle this case. Their constituents,
the citizens of America, have a right to see how they perform and to
fully understand why they decided to retain or remove their elected
President.
Mr. HARKIN. Mr. Chief Justice, let me take off a little bit
on one aspect of this. Some people say, ``Well, there is a
benefit to Senators meeting quietly, privately to discuss
these.'' I believe that, and I would not, in any way, want to
close, for example, some of the caucuses that we have--the
occupant of the Chair remembers we had the closed caucus
between the two parties to reach an agreement under which we
are operating. I think there is a benefit to that, as the
Washington Post article pointed out. That is fine, as we meet
unofficially off the floor amongst ourselves to discuss things.
But when the Senate meets as the Senate, as soon as that
opening prayer is given by the Chaplain, this place should be
open, and the trial should be open.
Next, I believe that unless we open this trial up, we are
going to sow the seeds of confusion, misinformation, suspicion
and unnecessary conflict. Here is why I say that. As some wag
once said, there is nothing secret about any secret meeting
held here in Washington.
Think, if you will, of a closed session of the Senate. The
galleries are cleared, the cameras are shut off, reporters are
gone, and we engage in debate on whatever issue we are going to
debate. The debate is over. We open the galleries again, and
100 Senators rush out of here and they see all the reporters
standing out here.
What happens? ``Well, what happened, Senator?''
``Well, don't quote me, not for attribution, but guess what
this Senator said; guess what that Senator said?''
And so you get 100 different versions of what happened here
on the Senate floor.
I believe that will sow a lot of confusion, misinformation
and unnecessary conflict. If the doors are open and if we
debate in the open, there is no filter, it is unfiltered, and
the public can see how and why we reached the decisions we
reached.
The press, quite frankly, obviously, as perhaps is their
nature, is quick to pick up on conflict and rumor. I believe if
we follow the rules to close the doors of this trial it will
turn it more into a circus than anything else. If we open the
debate, I don't believe we will have any problems.
I was interested in an op-ed piece that was in the New York
Times by former Senator Dale Bumpers. I read it, and there is a
part in there I think really hits home. Former Senator Bumpers
said:
In a visit with Harry Truman in his home in Missouri in
1971, he admonished me to always put my trust in the people.
``They can handle it,'' he said.
``They can handle it.'' I believe the American people can
handle it, too. I believe they can handle any debate, any
discussion, any deliberation that we have on the Senate floor.
Not only can they handle it, I believe they have a right to it.
So Senator Wellstone and I will, at the first opportunity,
when the first motion is made to dismiss the case, if that
motion is made--obviously the debate about that under the rules
would be held in secret--we intend at that point to offer a
preferential motion that the debate, the discussion in the
Senate on the motion to dismiss be held openly, to suspend the
rules.
Obviously, that is a hurdle. To suspend the rules requires
a two-thirds vote. It means that two-thirds of the Senate would
have to vote to suspend the rules. As a further kind of
anomaly, the motion to open up the Senate, to open up our
debate and deliberation, the debate on that has to be held in
private under the rules, strange as it may seem. And so we will
at that point ask unanimous consent that the debate and
discussion on whether we will open up the debate on the motion
to dismiss be held openly. Of course, one Senator can object,
and then we would have to go into a secret debate on our motion
to open up the deliberation and the debate. And so that will
happen sometime soon.
Another issue has been raised, Mr. Chief Justice--I would
just like to cover it and then I am going to yield the floor to
Senator Wellstone. The point has been raised, well, you know,
if Senators start debating this and it gets in the open, then
they get in front of the cameras, and, why, then this thing can
go on and on and on because Senators--you know, we Senators
like to talk, we can talk forever. Under the rules of the
Senate, when we go into debate and deliberation on any motion,
each Senator can be recognized only for 10 minutes--only for 10
minutes. And I think a lot of people are forgetting about that.
Lastly, I remember in January of 1991 when I sat at the
desk on that side over there and Senators had just been sworn
in; housekeeping motions were being made. One motion was being
made by the majority leader at that time that the Senate recess
or adjourn--I forget--adjourn to a date certain--I think it was
for the State of the Union--but during that period of time,
that we would not have been in session, and the time would have
run out on whether or not we would use force to get the Iraqis
out of Kuwait, the gulf war.
I stood at that time and raised an objection to the Senate
recessing or adjourning over to that point. And I raised an
objection that enabled us to have an open and public debate on
whether or not we would authorize the President of the United
States to conduct military operations in the gulf. We had that
debate. And I think it was one of the Senate's finest hours.
Even those with whom I disagreed I thought were eloquent and
forceful in their arguments. We had the debate, we had the
vote, and then we moved on. And I think the American people
were better for that debate because it was held in the open.
Mr. Chief Justice, if we in the Senate can debate whether
or not to send our sons and daughters off to distant lands to
fight and die in a war--something that touches every single
American citizen--if we can debate that in open and in public,
then in the name of all that is right about our Republic and
our country and our openness and our system of government, why
can we not debate and deliberate in the open something else
that touches every American citizen? And that is, why or if the
President of the United States should or should not be removed
from office. If we can debate it openly, the issue of war, then
certainly we can debate an issue in the open, the issue of
whether or not the President would be removed from office.
I yield the floor.
Mr. WELLSTONE. Mr. Chief Justice, let me, first of all,
thank my colleague, Senator Harkin. We have been working very
hard on this. There are other Senators who support this
motion--Senator Leahy, Senator Feingold, Senator Boxer, and
Senator Lieberman. And I know Senator Hutchison has indicated
interest in this question. This will be a very important vote
coming up next week.
First, let me just, if I could, say that I feel very
honored to be speaking from Dale Bumpers' desk. I don't think
there is anybody who could match his oratory, but I am sure
lucky to have this desk and this long cord. And Dale Bumpers,
wherever you are, I will do my very best to try to carry on in
your tradition, or at least give it everything that I have.
Mr. Chief Justice, next week before the Senate goes into
its own deliberations on this question of whether to dismiss
charges, we will take this one step at a time. We most
definitely will try to move forward with a motion to suspend
the rules so that the Senate deliberations will not be in
closed session. We also would like to make sure that the very
debate as to whether our deliberations are in closed session or
secret session be open to the public. And we will, on the floor
of the Senate, make every effort possible to keep that debate
in the open.
I am going to be very brief and just make the following
arguments because there are some very, very good people who do
a lot of work when it comes to interpretation of the rules. I
will say, since the Parliamentarian is here, that Bob Dove has
been eminently fair. He has treated all of us from both
political parties with the utmost respect.
My own feeling about this is that this trial has been
momentous. I personally wish that it had not come over from the
House. I have always made my point that I believe the House
overreached on the impeachment charges. But they are here in
the Senate.
I think here are the following questions: If in fact we as
a Senate are going to go into deliberations over whether to
dismiss the charges against the President, or later on whether
we will have witnesses, or later on whether the President shall
be removed, I cannot imagine that the U.S. Senate would go into
closed session. I cannot imagine that our deliberations and our
debate and the arguments we make would not be open to the
public.
The public isn't going to believe in this political process
if we go into secret or closed session. The public is not going
to have trust in what we are doing if they don't get a chance
to evaluate our debate and what we are saying and why we
reached the conclusions we reached.
I really do believe that if there is to be healing in our
country--and I certainly pray that there will be--it would be a
terrible mistake for the U.S. Senators, Democrats or
Republicans, to cut the public out. The part of the public that
is looking at the proceedings right now, that is evaluating the
arguments that are being made--and there are people who have
made very good arguments on both sides of the question--to then
say to them, ``Listen, when it comes to now the Senate, the
U.S. Senate, going into our own deliberations and making our
own decisions, you, the public, you're cut out of it,'' this
goes against the very essence of accountability. It goes
against the very essence of what a representative democracy is
about.
Some of these rules go back to 1868. That was a time when
the U.S. Senators were not even directly elected. They were
elected by State legislatures. The 17th amendment changed all
that in 1913 as part of the Progressive movement and the
progressive change in the country. The idea was that the U.S.
Senators would be a part of representative democracy, directly
elected by the people, accountable to the people.
This is a huge decision we are going to be making in the
U.S. Senate. And I think it will be a terrible mistake for the
U.S. Senate to go into closed session, to cut the public out,
to not let people have the opportunity to hear what we are
saying in the debate.
It is really quite amazing, if you think about it. People
will know what our votes are--dismissal of charges, witnesses,
whether the President should be removed from office--and
somewhere there will be a transcript of the proceedings, but I
don't think they will even be published. There will not even be
a public record of what U.S. Senators--the Senator from
Arkansas or the Senator from Minnesota or the Senator from
Iowa--had to say in this debate.
I just say to all of my colleagues, I hope that, No. 1, you
will agree to a unanimous-consent agreement that in our
discussion or our debate whether or not we go into closed
session, that it be open to the public. What an irony it would
be if, in the very debate about whether or not our
deliberations will be open or closed, our deliberations were
closed. It seems to me that debate ought to be open to the
public.
Second, I certainly hope that we will have the two-thirds
vote that it will take to suspend the current rule that says we
must be in closed session.
Mr. Chief Justice, I think it is important for the public
right now to be engaged in this process. I hope people will be
calling their Senators, because I really do believe that part
of our deliberations, part of our modus operandi as Senators,
whatever States we represent, should be to stay in touch with
people. Of course, we reach our own independent judgment. We
reach our own independent judgment about the facts, about the
charges.
Then there is another question, the threshold question,
about whether or not these charges rise to the level of
removing a President from office.
I think part of what we are about as Senators is to try to
stay in close touch with the public, with people in our States,
whatever decision we make. It can be a matter of individual
conscience, but I think it is terribly important that we
operate as a representative body, as the U.S. Senate, as a part
of representative democracy of the United States of America. We
can't on this question, we can't on these questions, if we go
into closed session.
recess
Thereupon, the Senate, in legislative session, recessed
until 1:05 p.m.; whereupon, the Senate, sitting as a Court of
Impeachment, reassembled when called to order by the Chief
Justice.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Senators may be seated, and the Deputy
Sergeant at Arms will make the proclamation.
The Deputy Sergeant at Arms, Loretta Symms, made
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Mr. Chief Justice, it is my understanding that
the White House counsel presentation today will last until
sometime between 5 and 6 o'clock.
I have been informed that Mr. Greg Craig and Ms. Cheryl
Mills will be making today's presentations. As we have done
over the past week, we will take a couple of short breaks
during the proceedings. I am not exactly sure how we will do
that. We will keep an eye on everybody, the Chief Justice, and
counsel. I assume that after about an hour, hour and 15
minutes, we will take a break; then we will take another one in
the afternoon at some point so we will have an opportunity to
stretch.
I remind all Senators, again, to remain standing at your
desks each time the Chief Justice enters and departs the
Chamber.
As a further reminder, on a different subject, the Leader's
Lecture Series continues tonight, to be held at 6 p.m. in the
Old Senate Chamber. Former President George Bush will be our
guest speaker.
I yield the floor, and I understand that Counsel Greg Craig
is going to be the first presenter.
the journal
The CHIEF JUSTICE. The Journal of the proceedings of the
trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, counsel
for the President have 21 hours 45 minutes remaining to make
the presentation of their case. The Senate will now hear you.
The Chair recognizes Mr. Counsel Craig.
Mr. Counsel CRAIG. Mr. Chief Justice, ladies and gentlemen
of the Senate, distinguished managers from the House, good
afternoon. My name is Greg Craig and I am special counsel to
the President. I am here today on behalf of President Clinton.
I am here to argue that he is not guilty of the allegations of
grand jury perjury set forth in article I.
I welcome this opportunity to speak for President Clinton.
He has a strong and compelling case, one that is based on the
facts in the record, on the law, and on the Constitution. But
first and foremost, the President's defense is based on the
grand jury transcript itself. I urge you to read that
transcript and watch the videotape. You will see this President
make painful, difficult admissions, beginning with his
acknowledgment of an improper and wrongful relationship with
Monica Lewinsky.
You will see that the President was truthful. And after
reading, seeing, hearing, and studying the evidence for
yourselves, not relying on what someone else says it is, not
relying on someone else's description, characterization, or
paraphrase of the President's testimony, we believe that you
will conclude that what the President did and said in the grand
jury was not unlawful, and that you must not remove him from
office.
I plan to divide my presentation into three parts:
First, to tell you how really bad this article is, legally,
structurally, and constitutionally, and to argue that it falls
well below the most basic, minimal standards and should not be
used to impeach and remove this President or any President from
office; second, to address the various allegations directly;
and third, to give you a few larger thoughts in response to
some of the arguments from last week.
At the conclusion you will have had much more than 100
percent of your minimum daily requirements for lawyering, for
which I apologize.
Article I accuses the President of having given perjurious,
false, and misleading testimony to the grand jury concerning
one or more of four different subject areas:
First, when he testified about the nature and details of
the relationship with Ms. Lewinsky;
Second, when he testified about his testimony in the Jones
deposition;
Third, when he testified about what happened during the
Jones deposition when the President's lawyer, Robert Bennett,
made certain representations about Monica Lewinsky's affidavit;
And, fourth, when he testified about alleged efforts to
influence the testimony of witnesses and impede the discovery
of evidence.
It is noteworthy that the second and third subject areas
are attempts to revisit the President's deposition testimony in
the Jones case. There was an article that was proposed alleging
that the President also committed perjury in the Jones case in
the Jones deposition. That article was rejected by the House of
Representatives, and there were very many good reasons for the
House to take that action. Those allegations have been
dismissed, and you must not allow the managers to revive them.
Last week they tried to do that. The managers mixed up and
merged two sets of issues--allegations of perjury in the grand
jury and allegations of perjury in the Jones case. These are
very different matters. And I think the result was confusing
and also unfair to the President.
You will notice that the third and the fourth subject areas
correspond to, coincide, and overlap with many of the
allegations of obstruction of justice in article II. This
represents a kind of double charging that you might be familiar
with if you have either been a prosecutor or a defense lawyer.
One is, the defendant is charged with the core offense; second,
the defendant is charged with denying the core offense under
oath. This gives the managers two bites at the apple, and it is
a dubious prosecutorial practice that is frowned upon by most
courts.
The upshot, though, of this with respect to subparts 3 and
4 of this first article is that if you conclude, as I trust you
will, that the evidence that the President engaged in
obstruction of justice is insufficient to support that charge,
it would follow logically that the President's denial that he
engaged in any such activity would be respected, and he would
be acquitted on the perjury charge. Simply put, if the
President didn't obstruct justice, he didn't commit perjury
when he denied it.
But the most striking thing about article I is what it does
not say. It alleges the perjury generally. But it does not
allege a single perjurious statement specifically. The majority
drafted the article in this way despite pleas from other
members of the committee and from counsel for the President
that the article take care to be precise when it makes its
allegations. Such specificity, as many of you know, is the
standard practice of Federal prosecutors all across America.
And that is the practice recommended by the Department of
Justice in the manual distributed to the U.S. attorneys who
enforce the criminal code in Federal courts throughout the
Nation.
Take a look at the standard form. It is exhibit 5 in the
exhibits that we handed to you. This is given to Federal
prosecutors. This is the model that they are told to use to
allege perjury in a criminal indictment in Federal court. There
is a very simple reason why prosecutors identify the specific
quotation that is alleged to be perjury, and why it is included
in a perjury indictment. If they don't quote the specific
statement that is alleged to be perjurious, courts will dismiss
the indictment, concluding that the charge of perjury is too
vague and that the defendant is not able to determine what
precisely he is being charged with.
The requirement that a defendant be given adequate notice
of what he is charged with carries constitutional dimensions,
and the failure to provide that notice violates due process of
law. This is something that applies to all criminal defendant
offenses when they are charged. And you can understand why that
kind of notice is required. Imagine a robbery indictment that
failed to indicate who or what was robbed and what property was
stolen. How could you possibly defend against the charge that
you just stole something but you don't know what it is and it
is nothing specific? Imagine a murder indictment without
identifying a victim.
But this requirement is even more stringent for perjury
prosecution. Description, paraphrase, or summary of testimony
that is alleged to be perjurious are not acceptable. The
quotation must be there, or the definition should be so close
that there can be no doubt as to what is intended. In the past,
when the House returned articles of impeachment alleging
perjury with respect to Federal judges, you will see that the
House has followed this practice. And if you go back to
American history and review the articles that allege perjury
and that have been approved by the House and the Senate, you
will find that the statements that are alleged to be perjurious
are specifically identified in the article.
Let me read from article I from the resolution of
impeachment against Judge Walter Nixon. ``The false or
misleading statement was in substance that the Forest County
District Attorney never discussed this case with Judge Nixon.''
There is no doubt about that. That is very clear. From the
Alcee Hastings articles of impeachment, the false statement
was, in substance, that Judge Hastings and William Borders
never made any agreement to solicit a bribe from defendants in
United States v. Romano, a case tried before Judge Hastings.
Why is it that in this case--surely the most serious
perjury trial in American history--the House decided that
specific allegations just aren't necessary? The failure of the
House to be specific in its charge of perjury in fact violated
the President's right to due process and fundamental fairness.
And, as you will see as I go through the procedural history of
these allegations, it puts us and the President at a
significant disadvantage when we try to respond to the
allegations that are now set forth in this article.
But there is yet another reason why this vagueness and lack
of specificity is so very dangerous, and it raises a
constitutional question that only this body can resolve.
Article I, section 2, clause 5, of the Constitution states,
``The House of Representatives shall have the sole power of
impeachment''--``the sole power of impeachment.''
By failing to be specific in this article as to what it is
precisely that the President said that should cause him to be
removed from office, the House has effectively and
unconstitutionally ceded its authority under this provision of
the Constitution to the managers, who are not authorized to
exercise that authority. By bringing general charges in this
article, the House Judiciary Committee, and then the House of
Representatives generally, gave enormous discretion, power, and
authority to the floor managers and their lawyers to decide
what precisely the President was going to be charged with. They
didn't have that authority under the Constitution. Only the
House of Representatives has that authority. They have been
allowed to pick and to choose what allegations will be leveled
against the President of the United States.
It would be extremely dangerous to the integrity of the
process if the House leveled such general charges against the
President, creating ``empty vessels,'' to use Mr. Ruff's term,
to be filled by lawyers and floor managers. And this article, I
think, will take on more importance as we take a closer look at
the charges themselves and we see what kind of ``witches'
brew''--to use Mr. Ruff again--what kind of content was poured
into these vessels, and find out where they came from and why
and when.
I would like to talk about how these charges have been a
moving target for us throughout this entire process. On
September 9, when Kenneth Starr submitted his referral to the
House of Representatives, he claimed that there was substantial
and credible information to suggest that the President
committed perjury in the grand jury on three separate
occasions. To his credit, the Starr referral was moderately
specific. We could understand what they were talking about in
those allegations.
On October 5, when House majority counsel David Schippers
first made his representation to the House Judiciary Committee,
he discarded two of Mr. Starr's theories and invented a new one
of his own. And he included only two counts in his presentation
alleging perjury in the grand jury. Those two counts were
unbelievably broad and included no specifics whatsoever.
On November 19, Mr. Starr appeared before the House
Judiciary Committee and gave a 2-hour opening statement. In
that statement he delivered one or two sentences on the subject
of grand jury perjury.
Then, on December 9, when the committee majority released
its four proposed articles of impeachment, the article that
alleged perjury in the grand jury, which is the one we have
before us today, failed to tell us or the American people what
words the President actually used that should cause the
Congress to remove him from office.
As you know, these proposed articles were released just as
Mr. Ruff and the President's defense were being completed. In
fact, it may have been 2 or 3 minutes before he completed his
final argument before the committee. So we had no advance
notice and no chance to discuss these articles, to respond to
them, or in any way to react. In truth, I must say that because
of the vagueness of the articles that were ultimately returned,
had we been given such advance notice, it would not have made
much difference because, simply put, there is a stunning lack
of specificity in article I.
So where do we look for guidance? How do we know what to
defend against in this case? After the Judiciary Committee had
completed its deliberations, after the Members had voted to
send four articles of impeachment to the full House, the
majority issued its report on December 16th, only 3 days before
the House took its final vote. It was never debated by, let
alone approved by, the House of Representatives, and thus this
report has no formal standing in these proceedings. But until
the managers filed their trial brief and made their
presentations just last week, the majority report, written by
Mr. Schippers and his staff, was our only place to go to look
for guidance as to what those four subparts of this first
article really meant.
Now, when it comes to perjury before the grand jury, the
majority report argued that the President had not made two, not
three, but a whole host of perjurious statements before the
grand jury, some statements that were not contained in the
Starr referral and had never been identified, charged,
discussed, or debated by the Members during the impeachment
inquiry.
For example, the majority report alleged that the prepared
statement that the President made and delivered to the grand
jury at the start of his testimony admitting his relationship
with Ms. Lewinsky was ``perjurious, false, and misleading,'' an
astonishing allegation that went far beyond anything that
Kenneth Starr had claimed, and a claim that no member of the
Judiciary Committee had ever made in the course of the
committee's deliberations.
Obviously, we had no opportunity whatsoever to respond to
this allegation before the committee or before the House; the
allegation was never debated or discussed by members of the
committee, nor was it discussed during the debate in the
Chamber of the House.
The majority report also alleged that the President
committed perjury in the grand jury when he testified that his
``goal in the [Jones] deposition was to be truthful,'' and when
he said that he believed he had managed to complete his
testimony in that deposition ``without violating the law.''
Again, this allegation was brand new to us, never before
made by Starr, not included in the Schippers closing argument,
never mentioned by Chairman Hyde or by anyone else in the
committee, never addressed by the President's counsel, never
debated by members of the committee, never discussed on the
floor.
The majority report made many other new allegations of the
same kind and pedigree--all new, undiscussed, untested. They
had not come, ladies and gentlemen of the Senate, these
allegations did not come from Starr's referral, nor did they
come from any evidence that had been gathered in the course of
the impeachment inquiry, nor had they ever been unveiled during
the impeachment inquiry to allow the President's counsel to
respond, or the members of the Judiciary Committee to debate
them. To our knowledge, many of these allegations were never
discussed or debated by the members of the committee. And if
you read the closing arguments of the members of the House
Judiciary Committee, you will search in vain for any specific
reference to any of these new allegations, the terms of which
are the subject of article I.
Then we found ourselves in the Senate, our only guide being
the articles themselves, which, as you know, are general, and
the majority report, which has no formal standing but which was
filled with allegations and theories, and which had never been
discussed much less adopted.
As the trial in the Senate began--just 3 days before the
managers were scheduled to open their case, on January 11th--
the House managers filed their trial brief. We discovered that
the allegations of grand jury perjury against the President
were still changing, still expanding, still increasing in
number.
The trial brief made eight proffers, incredibly presented
``merely as examples'' that still in general terms describe
instances where the President allegedly provided ``perjurious,
false, and misleading testimony'' to the grand jury.
But, we were warned, these proffers were only ``salient
examples'' of grand jury perjury. The House managers said,
``The [examples set forth in the trial brief] are merely
highlights of the grand jury perjury. There are numerous
additional examples.'' And when we heard Mr. Manager Rogan's
presentation, we realized that the trial brief was absolutely
right; Mr. Rogan unveiled allegations that had not been
included even in the trial brief.
The uncertainty, fluidity, the vagueness of the charges in
this case and the unwillingness of the prosecutors ever to
specify and be bound by the statements that are at issue has
been an aspect of this process that, I submit, has been
profoundly unfair to this President. It is also
unconstitutional, from the arguments I gave you.
The articles had come to include specific allegations of
grand jury perjury that did not come from the Starr referral
and that never would have been approved by the House had the
House been required to review them.
There is one other element of unfairness that Mr. Ruff
referred to. Even as the House managers have consistently tried
to stretch the scope of article I to cover allegations never
considered by the House, they have tried to twist the scope of
article I to cover allegations specifically rejected by the
House.
Now, let me be clear here. I am not charging the managers
with going beyond the record of the case. These new allegations
come from the record in the case. They are not beyond the
record. They are in the record. But the Starr referral did not
find it suitable to make these allegations, and they were not
made in a timely way before the House Judiciary Committee and,
I would submit, in a timely way before the House of
Representatives.
I go back to this second element of unfairness that has to
do with the Jones article. When that Jones article was
rejected, we would argue that rejection should have been
recognized for what it was, a clear instruction from the House
of Representatives not to argue that the President should be
impeached and removed because of his testimony in the Jones
deposition. But the managers have sought to merge the Jones
testimony with the grand jury testimony, to confuse these two
events, to blend and blur them together.
The Senate must understand that these two events were
different in every way. In the President's testimony in the
Jones case, the President was evasive, misleading, incomplete
in his answers, and, as I said to the House Judiciary
Committee, maddening. But in the Federal grand jury, President
Clinton was forthright and forthcoming. He told the truth, the
whole truth and nothing but the truth for 4 long hours, and the
American people saw that testimony and they know that President
Clinton, when he appeared before the grand jury, did not deny a
sexual relationship with Ms. Lewinsky--he admitted to one.
They know that he did not deny that he was alone with Ms.
Lewinsky; he repeatedly acknowledged that he had been alone
with her on many occasions.
The managers argued that the Jones testimony is relevant
because, they say, the President perjured himself when he told
the grand jury that his testimony in the Jones case was
truthful, and it wasn't, say the managers. That
characterization of the President's testimony, they say, is
simply not accurate. What he said was, ``My goal in this
deposition was to be truthful but not particularly helpful . .
. I was determined to walk through the minefield of this
deposition without violating the law, and I believe I did.''
These are opinions. He is characterizing his state of mind.
The House managers, on the basis of this testimony, must
not be allowed to do what the House of Representatives told
them they could not do, which is to argue about the President's
testimony in the Jones case. Even if you believe that the
President crossed the line in his Jones deposition, you cannot
conclude that he should be removed for it.
He was not impeached for it. This case is about the grand
jury and the grand jury alone.
Now, in fact, the vagueness and uncertainty as to the
specific allegations of perjury, whether in the grand jury or
in the Paula Jones deposition, have created enormous confusion
in the public about the President's conduct and about his
testimony. This confusion, I think, has done enormous damage to
the President, because out of this confusion has emerged a
wholly inaccurate conventional wisdom about what President
Clinton said when he testified in the grand jury. And that
conventional wisdom is based on certain common
mischaracterizations of the President's testimony.
Last December 8, I gave an opening statement in the
President's defense before the committee. And when it came time
for me to talk about the charges of perjury, I urged the
members of the committee to open their minds, and because of
widespread misinformation about the facts, to focus on the
record. I make the same plea to you again today. Keep an open
mind and look at the real record. Read the transcript. Watch
the videotape. Do not rely upon anyone else's version.
We speak from some disappointing experience on this issue.
Over and over again, inaccurate descriptions of the President's
grand jury testimony have been launched into the public
debate--sometimes innocently, sometimes negligently. But the
result has been the same. The President's critics have created
a conventional wisdom about the President's grand jury that is
based on myth and not reality. There has been a merging of the
President's testimony in the Jones deposition with that of his
testimony in the grand jury, and this dynamic has been unfair
to the President.
We are at No. 6 with the exhibits. Let me just cite a few
examples. There are many more available, but they are from
people and sources that are familiar with the case and close to
the evidence, and some coming from the presentations of just
last week.
At the conclusion of the impeachment inquiry conducted by
the Judiciary Committee, the final arguments before the votes
were taken in front of the committee, Congressman McCollum
stated:
The President gave sworn testimony in the Jones case in
which he swore he could not recall being alone with Monica
Lewinsky and that he had not had sexual relations with her.
He repeated those assertions a few months later to the
grand jury, and the evidence shows he lied about both.
That is not an accurate characterization of the President's
testimony before the grand jury. In the majority report,
written by the majority counsel, the author stated repeatedly
that President Clinton testified before the grand jury that he
did not have sexual relations with Ms. Lewinsky. Members of the
Senate, those descriptions of the President's grand jury
testimony are absolutely false. When he appeared before the
grand jury, the President admitted--he did not deny--an
inappropriate, intimate, wrongful, personal relationship with
Ms. Lewinsky. When he made this admission there was no doubt in
anyone's mind what he meant. It meant, and the whole world knew
that it meant that the President of the United States had
engaged in some form of sexual activity or sexual contact with
Ms. Lewinsky.
In his appearance on a national news program on CNN
television, this is another example: Over the New Year's
weekend Mr. Manager Graham was asked for the most glaring
example of the President's alleged perjury before the grand
jury. And he said:
I think when the President said he wasn't alone with her,
he lied.
That characterization of the President's grand jury
testimony is not true. There can be absolutely no doubt that
during his grand jury testimony, the President acknowledged--he
did not deny, he repeatedly acknowledged--that he had been, on
certain occasions, alone with Ms. Lewinsky. He acknowledged
that fact in the opening sentence of his prepared statement to
the grand jury. Let me read it. Let me read you the first words
in the President's opening statement to 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.
``When I was alone with Ms. Lewinsky,'' that is what the
President of the United States said. That is what the
transcript says. And no amount of eloquence or lawyerly skill
from the managers can change that fact. Facts are stubborn.
He also engaged in a lengthy colloquy with the prosecutors
about how many times he thought he had been alone with Ms.
Lewinsky. And there can be no doubt in anyone's mind that he
answered that he had been alone with Ms. Lewinsky on frequent
occasions. He was asked, and he answered, and he said yes, and
he made clear what he meant. He went on to say:
I did what people do when they do the wrong thing. I tried
to do it where nobody else was looking at it. I'd have to be an
exhibitionist, not to have tried to exclude everyone else.
These are not the words of someone who is trying to hide
the fact of his relationship with Ms. Lewinsky. And it is
difficult to understand how reading these words, as well as the
long and detailed testimony in front of the grand jury, how one
can think or contend that the President repeated or ratified in
his deposition before the grand jury about not ever being
alone.
In the managers' trial brief issued just 3 days before they
made their presentation, the brief makes the following
statement. This is mischaracterization No. 4.
[The President] falsely testified that he answered
questions truthfully at his deposition concerning, among other
subjects, whether he had been alone with Ms. Lewinsky.
Members of the Senate, as I just outlined in connection
with Manager Graham's statement, this characterization of the
President's grand jury testimony is misleading. The lawyers for
the Office of the Independent Counsel asked many questions and
engaged in extensive colloquy with the President about being
alone with Ms. Lewinsky. But they never asked him to explain,
affirm, defend, or justify his testimony about that same topic
in the Jones deposition. And he did not do so.
Members of the Senate, if justice is to be done, these
misstatements and mischaracterizations must not be allowed to
stand and must not be allowed to influence your judgment as you
look at the evidence. So, please look at the real record. It is
the record of the President's testimony, not the Jones
deposition--his testimony before the grand jury that should be
the Senate's sole concern.
Now, it is timely, I think, to talk a little bit about
legalisms and technicalities and hairsplitting because those
who have engaged in this process over the past months in this
enterprise of defending the President have also been the
subject of much criticism. The majority counsel accused us of
``legal hairsplitting, prevarication and dissembling,'' and
urged the Members of the Senate and the House to pay no
attention to the ``obfuscations and legalistic pyrotechnics of
the President's defenders.'' And during his presentation just
last week on January 15, Congressman McCollum implored you
``not to get hung up on some of the absurd and contorted
explanations of the President and his attorneys.''
To the extent that we have relied on overly legal or
technical arguments to defend the President from his attackers,
we apologize to him, to you, and to the American public. We do
the President no earthly good if, in the course of defending
him, we offend both the judges, the jurors, and the American
public. And Mr. Ruff had it just right when he expressed his
concern to the members of the Judiciary Committee that our
irresistible urge to practice our profession should not get in
the way of securing a just result in this very grave proceeding
for this very specific client.
But, when an individual--any individual--is accused of
committing a crime such as perjury, the prosecutors must be put
to their full proof. Every element of the crime must be proven.
And if a criminal standard is going to be used here it must be
proven beyond a reasonable doubt.
Now, the managers have taken it upon themselves directly
and aggressively to accuse this President of criminal activity.
They say that this criminal activity is at the heart of the
effort to remove him from office. As Congressman McCollum said
to you last week:
The first thing you have to determine is whether or not the
President committed crimes. If he didn't obstruct justice or
witness tamper or commit perjury, no one believes [no one
believes] he should be removed from office.
Allegations of legal crimes invite, indeed they call out
for legal defenses. And you will not be surprised to learn that
in defending the President of the United States, we intend and
we will use all the legal defenses that are available to us, as
they would be available to any other citizen of this country.
Teddy Roosevelt, quoted earlier in this proceeding, said it
best: ``No man is above the law and no man is below the law
either.'' In fact, the mere act of alleging perjury, as those
of you in this body know who have tried perjury cases, the mere
act of alleging perjury invites precisely the kind of
hairsplitting everyone seems to deplore. If it is the will of
the Congress to change the crime of perjury, to modify it, to
eliminate certain judicially created defenses to that offense,
so be it. But the crime of perjury has developed the way it has
for some very good reasons, and it has a long and distinguished
pedigree.
Its essential elements are well and clearly established,
and Manager Chabot's presentation was clear on those points,
although you will not be surprised to learn that I disagree
with his conclusions. Courts have concluded that no one should
be convicted of perjury without demonstrating that the
testimony in question was, in fact, false; that the person
testifying knew it to be false; and that the testimony involved
an issue that is material to the case, one that could influence
the outcome of the matter one way or another.
In addition, courts and prosecutors are in general
agreement that prosecutions for perjury should not be brought
on the basis of an oath against an oath. The Supreme Court has
spoken on this issue, holding that a conviction for perjury
``ought not to rest entirely upon an oath against an oath.''
Ladies and gentlemen of the Senate, when we presented our
case to the Judiciary Committee last December, we invited five
experienced prosecutors to examine the record of this case and
to give us their views as to whether they would bring charges
of perjury and obstruction of justice against the President
based on that record. These five attorneys are five of the
best, the most experienced, the most tested prosecutors the
country has ever seen. Three served as high officials in
Republican Departments of Justice; two served during Democratic
administrations. All were in agreement that no responsible
prosecutor would bring this case against President Clinton.
I would like to run the tape recordings of testimony from
two of the individuals who testified, Tom Sullivan, former U.S.
attorney from the Northern District of Illinois, as he
describes the law of perjury, and Richard Davis, an experienced
trial lawyer with prosecutorial experience in the Department of
Justice and the Department of the Treasury.
[Text of videotape presentation:]
Mr. Sullivan. . . . The law of 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.
Both perjury and obstruction of justice are what are known
as specific intent crimes, putting a heavy burden on the
prosecutor to establish the defendant's state of mind.
Furthermore, because perjury and obstruction charges often
arise from private dealings with few observers, the courts have
required either two witnesses who testified directly to the
facts establishing the crime, or, if only one witness testifies
to the facts constituting the alleged perjury, that there be
substantial corroborating proof to establish guilt. Responsible
prosecutors do not bring these charges lightly.
The next testimony you will hear is from Richard Davis, who
is Acting Deputy Attorney General--excuse me, he was assistant
from the Southern District of New York, task force leader for a
Watergate special prosecution force and Assistant Secretary of
Treasury for Enforcement and Operations from 1977 to 1981.
[Text of videotape presentation:]
Mr. Davis. . . . In the context of perjury prosecutions,
there are some specific considerations which are present when
deciding whether such a case can be won. First, it is virtually
unheard of to bring a perjury prosecution based solely on the
conflicting testimony of two people. The inherent problems in
bringing such a case are compounded to the extent that any
credibility issues exist as to the government's sole witness.
Second, questions and answers are often imprecise.
Questions sometimes are vague, or used too narrowly to define
terms, and interrogators frequently ask compound or
inarticulate questions, and fail to follow up imprecise
answerers. Witnesses often meander through an answer, wandering
around a question, but never really answering it. In a perjury
case, where the precise language of a question and answer are
so relevant, this makes perjury prosecutions difficult, because
the prosecutor must establish that the witness understood the
question, intended to give a false, not simply an evasive
answer, and in fact did so. The problem of establishing such
intentional falsity is compounded, in civil cases, by the
reality that lawyers routinely counsel their clients to answer
only the question asked, not to volunteer, and not to help out
an inarticulate questioner.
Legalistic though some of these legal defenses may be,
these are the respectable and respected, acceptable and
expected defenses available to anyone charged with this kind of
a crime. So to accuse us of using legalisms to defend the
President when he is being accused of perjury is only to accuse
us of defending the President. We plead guilty to that charge,
and the truth is that an attorney who failed to raise these
defenses might well be guilty of malpractice.
But putting the legal defenses aside, it is not a
legalistic issue to point out that the President did not say
much of what he is accused of having said. It is not legalistic
to point out that a witness did not say what some rely on her
testimony to establish. And it is not too legalistic to point
out that a President of the United States should not be
convicted of perjury and removed from office over an argument,
a dispute about what is and what is not the commonly accepted
meaning of words in his testimony.
I would like to make one additional point about the Office
of the Independent Counsel and the Starr prosecutors. They, as
you know, have had a long and difficult relationship with the
White House. It has been intense, adverse, frequently hostile.
They were the ones who conducted the interrogation of the
President before the grand jury. These attorneys from the
Office of Independent Counsel were identified by Mr. Starr as
being experienced and seasoned and professional.
In the referral that they sent over to the House of
Representatives, they make three allegations of grand jury
perjury, and the managers, based on my analysis of Mr. Rogan's
speech, appear to have adopted two of those allegations.
What is most remarkable is the fact that the managers make
many, many allegations of grand jury perjury that the
independent counsel declined to make, that were not included in
the referral.
Think about it for a moment. The lawyers working for the
Office of the Independent Counsel, they were in charge of this
investigation. They were the ones who called the President.
They were the ones running the grand jury. It was their grand
jury. They conducted the questioning of the President. They
picked the topics. They asked the follow-up questions.
You should remember one additional fact. Their standard for
making a referral is presumably much lower than the standard
you would expect from the managers in making a case for the
removal of the President in an article of impeachment. The
Independent Counsel Act calls upon the independent counsel to
make a referral when there is credible and substantial
information of potential impeachable offenses.
They looked at the record, the same record that the
managers had, and they did make a referral and they did send
recommendations to the House of Representatives.
But these lawyers, Mr. Starr and his fellow prosecutors,
did not see fit to allege most of the charges that we are
discussing today. It is fair for us to assume that the Office
of Independent Counsel considered and declined to make the very
allegations of perjury that the House managers presented to you
last week. Apparently, the managers believe that Ken Starr and
his prosecutors have been simply too soft on the President.
This should cause the Members of the Senate some concern
and some additional reason to give very careful scrutiny to
these charges. When you do, you will find the following: The
allegations are frequently trivial, almost always technical,
often immaterial and always insubstantial. Certainly not a good
or justifiable basis for removing any President from office.
Finally, as we go through the allegations and the evidence
that I will be discussing, please ask yourself, What witness do
I want to hear about this issue? Will live witnesses really
make a difference in the way that I think about this? Are they
necessary for this case and this article to be understood and
resolved?
Subpart 1 has to do with testimony about the nature and
details of the relationship with Monica Lewinsky. And, once
again, because article I does not identify with any specificity
what the President said in the grand jury that is allegedly
perjurious, the House managers have been free to include
whatever specific allegations they--not the House of
Representatives--have seen fit to level against the President.
And we have been left to guess--so this is my guesswork--we
have been left to guess what the specific allegations are. And
we have done so. And we have tried to identify the precise
testimony at issue based on the managers' trial brief and on
Mr. Manager Rogan's presentation.
Now, as you will see in these allegations of subpart 1, it
is the managers who resort to legalisms, who use convoluted
definitions and word games to attack the President. It is the
managers who employ technicalities and legal mumbo jumbo, who
distort the true meaning of words and phrases in an effort to
convict the President. And we are the ones who must cry
``Foul.'' We are the ones who must point out what the managers
are trying to do here. They seek to convict the President and
remove him from office for perjury before a grand jury by
transforming wholly innocent statements about immaterial issues
into what are alleged to be ``perjurious, false and
misleading'' testimony.
I begin with what is identified in the majority report as
``direct lies.'' First, the managers claim that the President
perjured himself before the grand jury, that he told a direct
lie and should be removed from office because in his prepared
statement he acknowledged having inappropriate contact with Ms.
Lewinsky on ``certain occasions.'' This was a ``direct lie,''
say the managers, because, according to Ms. Lewinsky, between
November 15, 1995, and December 28, 1997, they were alone at
least 20 times and had, she says, 11 sexual encounters. To use
the words ``on certain occasions'' in this context is,
according to the managers, ``perjurious, false and
misleading.''
Now, this particular chart was not included in Mr. Starr's
referral, and it was not debated by the members of the
Judiciary Committee in the House of Representatives.
The managers also say that the President lied to the grand
jury and should be removed from office because the President
acknowledged that ``on occasion'' he had telephone
conversations that included sexual banter--this is also in the
prepared statement--when the managers say the President and Ms.
Lewinsky had 17 such telephone conversations over a 2-year
period of time. To use the words ``on occasion'' in this
context, it is, according to the managers, a ``direct lie'' to
the grand jury for which the President should be removed from
office. Now, this charge was not included in Mr. Starr's
referral. It was not debated by the members of the House
Judiciary Committee. And it was not debated on the floor of the
House.
In responding to these two charges, it may make some sense
to begin with the dictionary definition of ``occasional'' to
satisfy ourselves that the President's statement is, in fact, a
more than reasonable and actually an accurate use of that word
under the circumstances.
Now, there are 774 days in the time span between November
1995 and December 1997. I submit that it is not a distortion,
it is not dishonest to describe their activity, which Ms.
Lewinsky claims occurred on 11 different days--from our
examination of her testimony, we can only locate 10, but she
says 11--as having occurred ``on certain occasions.'' Look at
the calendar.
Now, that phrase, ``on certain occasions,'' carries no
inference of frequency or numerosity. It sort of means it
happened every now and then. And the same could be said for the
use of the words ``on occasion'' when they were talking about
telephone conversations to describe 17 telephone conversations
that included explicit sexual language.
Now, as you consider the second allegation having to do
with the phone calls, you might also read the grand jury
testimony of Ms. Lewinsky herself on August 20, 1998, at page
1111. There a grand juror asks her, how much of the time, and
how often--when she was on the phone with the President--did
they engage in these kinds of graphic conversations. Ms.
Lewinsky answered, ``Not always. On a few occasions.'' The
managers are trying to remove the President from office when he
used the words ``on occasions,'' when Ms. Lewinsky described
that frequency or that event precisely the same way.
There is simply no way that the President's use of the
words ``on certain occasions'' or ``on occasion'' can be used
as an effort to mislead or deceive the members of the grand
jury or to conceal anything. There is simply no way that a
reasonable person can look at this testimony and conclude--or
agree with the managers--that it is a ``direct lie.'' What
message do the managers send to America and to the rest of the
world when they include these kinds of allegations as reasons
to remove this President from office?
It is hard to take the charges seriously when in each case
they boil down to arguments of semantics. Does anyone here
really believe that Members of the House of Representatives
would have voted to approve these allegations as the basis for
impeaching and removing this President if they had been given
the chance with specific, identified perjurious testimony in a
proposed article of impeachment? But here we are in the well of
the Senate defending the President of the United States against
allegations that the managers believe and have seriously argued
should cause the President to be removed from office and even
prosecuted and convicted in a criminal court.
The President is also accused of lying before the grand
jury--and the managers have asked you to convict him and remove
him from office--because, in the prepared statement that he
read to the grand jury in August, he acknowledged that he
engaged in inappropriate conduct with Ms. Lewinsky ``on certain
occasions in early 1996 and once in 1997.'' The managers call
this a ``direct lie'' because the President did not mention
1995. And in their trial memorandum they write: ``Notice [the
President] did not mention 1995. There was a reason: On three
`occasions' in 1995, Ms. Lewinsky said she engaged in sexual
contact with the President.''
Now, this was one allegation that the Office of the
Independent Counsel did include in its referral to the House.
And this charge was, in fact, discussed and debated by the
members of the Judiciary Committee when they conducted their
impeachment inquiry. Let me show you what two members of that
committee--now managers for the House in this trial--thought
about this particular charge of perjury when Congressman Barney
Frank ridiculed it during the debate.
The chairman of the Judiciary Committee, Mr. Hyde--we are
missing an exhibit here; I think it is No. 10--said, ``It
doesn't strike me as a--as a terribly serious count.''
Congressman Canady, in his closing argument in the final stage
of that proceeding, said, ``I freely acknowledge that
reasonable people can disagree about the weight of the evidence
on certain of the charges. For example, I think there is doubt
about the allegations that the President willfully lied
concerning the date his relationship with Ms. Lewinsky began.''
This allegation involves an utterly meaningless disparity
in testimony about dates that are of absolutely no consequence
whatsoever. The most likely explanation here is that there was
an honest difference in recollection. There is no dispute about
the critical facts that Ms. Lewinsky was young, very young, too
young, when she got involved with President Clinton. But her
age didn't change between November 1995 and January 1996. Her
birthday is in July. She was 22 years old in November and 22
years old in January, despite the fact that every manager
persists in stating, erroneously--not perjuriously,
erroneously--that she was 21 years old when she first became
involved with the President. Nothing of any importance in the
case took place between December 1995 and January 1996. She was
an intern in the early stage of that period, and she became a
Government employee. So it did not change the relationship that
she had with the President. It modified her title. Any dispute
over this immaterial issue is silly.
It is unreasonable to argue, as we heard from the House
managers last week, that if you believe Ms. Lewinsky and
disbelieve the President on this issue as to which date was the
date that they began the relationship and had the inappropriate
contact, that you must convict the President and remove him
from office.
I confess, I find myself in agreement with Congressman Hyde
when he says this allegation is not serious, not ``terribly
serious.'' And I agree with Congressman Canady when he suggests
``there is'' room for ``doubt'' as to whether the President had
any real reason or motive to lie about these things.
I truly wonder if the House of Representatives, had it been
identified as a specific statement for them to consider, would
have made and included this allegation in the articles of
impeachment aimed at removing President Clinton from office.
Is this conflict in testimony really such a serious issue
that, if you find the President is mistaken, he should be
removed from office? And is it important enough to require the
testimony of live witnesses? Is it material of anything of
interest to the grand jury at the time this testimony was
given? I don't think so.
Now, between the time of the vote in the House and the time
that the managers filed their trial brief, the managers came up
with another allegation of perjury and put it into the mix.
They argue that this element of the President's grand jury
testimony should also cause him to be removed from office. This
allegation involves the President's statement that there was
some period of friendship with Ms. Lewinsky that led to
inappropriate contact. But it is immaterial, unimportant, and
fundamentally frivolous as an allegation. And it was not,
needless to say, included in the Starr referral. I am sure the
attorneys in the Office of Independent Counsel knew about this
statement and chose not to include it. It was never discussed
by the members of the Judiciary Committee during the
impeachment inquiry. We never heard about it, never saw it,
never had a chance to deal with it. It was never mentioned on
the floor of the House of Representatives.
According to my examination--which may be flawed--my
thinking is that it made its first appearance in the matter
only after the House of Representatives voted on the articles
of impeachment when the managers filed their trial brief. Does
anyone really believe that the House of Representatives would
have voted to approve this allegation as a basis for convicting
and removing this President from office?
Then the managers turn to what, in the majority report,
they call ``the heart of the perjury''; that is, the
President's grand jury testimony that his encounters with Ms.
Lewinsky did not constitute ``sexual relations'' as defined by
the Jones lawyers in the Jones deposition.
Before dealing with this allegation, however, it is
important to understand that in the course of his testimony the
President was required to deploy two different definitions of
``sexual relations.'' One was his own and the other was the
definition supplied to him by the Jones lawyers and modified by
Judge Susan Webber Wright during his deposition.
First, if you turn to exhibit No. 11, you will find the
President's definition, his own personal definition, as
reported to the grand jury.
Next, let me direct your attention to the transcript of the
telephone conversation between Monica Lewinsky--I am talking
here about exhibit 12--Monica Lewinsky and Linda Tripp, where
Ms. Lewinsky explained her definition of ``sexual relations.''
This conversation occurred, incidentally, many weeks before Ms.
Lewinsky executed her affidavit for the Jones case.
Finally, look at the dictionaries and read their
definitions. You can see that in exhibit 13.
By the way, exhibit 12, which includes Ms. Lewinsky's
definition, is confirmed by other parts of the record where she
talks to other individuals, FBI agents. She refers to this
understanding and this definition in her proffer. So it is not
just the one telephone conversation to establish what Monica
Lewinsky says she thought at that time the definition was.
Although some might think that the President's definition
is unduly limited and that both of them are splitting hairs,
there is some reasonable basis and there is reputable authority
to support their view. It seems clear that Ms. Lewinsky could
think, and probably did think and reassure herself at the time
she wrote and executed her affidavit, that the affidavit she
submitted in the Jones case was, in fact, accurate. And thus,
knowing Ms. Lewinsky's view of that situation and sharing her
definition, the President could reasonably say, ``Absolutely,
yes,'' when Mr. Bennett asked the President if Ms. Lewinsky's
affidavit stating she had never had sexual relations with the
President was true.
How can you accept the argument of the House managers that
the President should be removed from office because his
definition, which is the dictionary definition, does not
comport with theirs?
We are going to play the videotape. We are going to talk
about the definition that was the second definition that was
given to the President in the Jones deposition, which is also
the subject of grand jury testimony, and we are going to play
14 minutes of that videotape at the beginning of the
President's appearance, or at the time he was first handed the
definition and sits at the table.
This may be a good time to take a break because it will be
a 14-minute span of time.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we take a 10-minute recess at this time. I urge the Senators to
relax a moment but come right back to the Chamber so we can
proceed.
There being no objection, at 2:06 p.m., the Senate recessed
until 2:24 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we will be
proceeding with Mr. Counsel Craig's video perhaps, or do you
have something before that?
Mr. Counsel CRAIG. I have a little bit of production.
The CHIEF JUSTICE. The Chair recognizes Mr. Counsel Craig.
Mr. Counsel CRAIG. Thank you, Mr. Chief Justice.
Exhibit No. 14 in your collection of exhibits is the
definition that the President was handed when he went into his
deposition testimony--to give his deposition testimony. There
are two or three things I would like to say about this exhibit
before we go to the videotape.
The first is this: Many of the President's critics have
accused the President of himself coming up with this tortured
and convoluted definition so that he could get away with
denying having sex with Ms. Lewinsky; that he was the one that
came up with a bizarre and surreal definition that would give
him some plausible deniability and allow him to conceal his
relationship with Ms. Lewinsky from the Jones lawyers. But in
truth this definition was not his idea, not his work product,
not his own definition. And it is unfair and inaccurate to
saddle him with inventing such a silly and truncated
definition, and the event that flows from that.
My second point is this: The mere fact that the lawyers in
Jones felt the need to use a definition for sexual relations
is, by itself, standing alone, evidence to support the notion
that at least they recognized that the precise meaning of the
term can and does differ from person to person. It is precisely
then, when there is some uncertainty or ambiguity about the
meaning and common usage of words, that lawyers turn to create
a definition in an effort to have clarity, uniformity and
common understanding. And the very fact that the lawyers in
Jones seem to think that a definition was needed means that
without such a definition there is no commonly accepted, no
universally agreed upon meaning of this phrase. And what is or
is not included within the ambit of that definition becomes an
argument and nothing more--certainly not perjury.
The third point to remember before we watch the President
as he first sees this piece of paper is this:
To understand what is going on in the President's mind at
the time he testified about this definition during the Jones
deposition, you must look at what was deleted as well as
looking at that part of the definition that was left behind.
You will see that in the third paragraph of the definition
there is the description which, in fact, more closely
approximates what went on between Ms. Lewinsky and the
President within the first paragraph. And this part of the
definition was deleted by the judge.
There is an additional point. On the tape you will hear the
President's lawyer, Mr. Bennett--and Mr. Ruff referred to this
yesterday--urging the Jones lawyers to abandon this definition,
to leave it behind, and ask direct questions of the President
as to what he did. The record would certainly have been clearer
for all of us if he had followed Mr. Bennett's advice. And
there is another voice that you will hear in addition to Mr.
Bennett--Mr. Fisher, who was the Jones lawyer, the judge, Judge
Wright, and the voice of the lawyer of the President's
codefendant in the case of Danny Ferguson.
Let me just briefly tell you what to look for. The
President first saw this definition when he entered the room
and sat down to testify--not before. You will see him as he
sits there and he is handed a piece of paper with the
definition typed on it. Neither he nor his lawyer had ever seen
that definition before. He was then required to sit down to
study it, and to understand it.
And if you look at the next exhibit, this is what he says
about what he thought and did later in the grand jury. I think
this is the definition, exhibit No. 15. You will watch him as
he says this.
I might also note that when I was given this and began to
ask questions about it, I actually circled number one. This is
my circle here. I remember doing that so I could focus only on
those two lines, which is what I did.
This was the actual deposition exhibit with his circle
around No. 1.
Let us remember finally what his testimony is about his
intentions in this deposition. ``My goal is to be truthful, but
I didn't want to help them.''
Let's watch what happened.
[Text of videotape presentation:]
A. Good morning.
Q. My name is Jim Fisher, sir, and I'm an attorney from Dallas,
Texas, and I represent the Plaintiff, Paula Jones, in this case. Do you
understand who I am and who I'm representing today?
A. Yes.
Q. And do you understand, sir, that your answers to my questions
today are testimony that is being given under oath?
A. Yes.
Q. And your testimony is subject to the penalty of perjury; do you
understand that, sir?
A. I do.
Q. Sir, I'd like to hand you what has been marked Deposition
Exhibit 1. So that the record is clear today, and that we know that we
are communicating, this is a definition of a term that will be used in
the course of my questioning, and the term is ``sexual relations.'' I
will inform the Court that the wording of this definition is patterned
after Federal Rule of Evidence 413. Would you please take whatever time
you need to read this definition because when I use the term ``sexual
relations,'' this is what I mean today.
Mr. Bennett. Is there a copy for the Court?
Mr. Fisher. Would you pass that, please?
Mr. Bennett. Your Honor, as an introductory matter, I think this
could really lead to confusion, and I think it's important that the
record be clear. For example, it says, the last line, ``contact means
intentional touching, directly or through clothing,'' I mean just for
example, one could have a completely innocent shake of the hand, and I
don't want this record to reflect--I think we're here today for Counsel
for the Plaintiff to ask the President what he knows about various
things, what he did, what he didn't do, but I, I have a real problem
with this definition which means all things to all people in this
particular context, Your Honor.
Mr. Bristow. Your Honor, I think the wording of that is extremely
erroneous. What this, what the deposing attorney should be looking at
is exactly what occurred, and he can ask the witness to describe as
exactly as possible what occurred, but to use this as an antecedent to
his questions, it would put him in a position, if the President
admitted shaking hands with someone, then under this truncate
deposition--or definition, he could say or somehow construe that to
mean that that involves some sort of sexual relations, and I think it's
very unfair. Frankly I think it's a political trick, and I've told you
before how I feel about the political character of what this lawsuit is
about.
Mr. Fisher. Your Honor, may I respond?
Judge Wright. You may.
Mr. Fisher. The purpose of this is to avoid everything that they
have expressed concern about. It is to allow us to be discreet and to
make the record crystal clear. There is absolutely no way that this
could ever be construed to include a shaking of the hand.
Mr. Bennett. Well, Mr. Fisher, let me refer you to paragraph two.
It says ``contact between any part of the person's body or an object
and the genitals or anus of another person.''
What if the President patted me and said I had to lose ten pounds
off my bottom? I--you could be arguing that I had sexual relations with
him. Your Honor, this is going to lead to confusion. Why don't they ask
the President what he did, what he didn't do, and then we can argue in
Court later about what it means.
Judge Wright. All right, let me make a ruling on this. It appears
that this really is not the definition of contact under Rule 413
because Rule 413 deals with nonconsensual contact. This definition
would encompass contact that is consensual, and of course the Court has
ruled that some consensual contact is relevant in this case, and so let
the record reflect that the Court disagrees with counsel that this is
not, about it being the definition under Rule 413. It's not. It is more
in keeping with, however, the Court's previous rules, but I certainly
agree with the President's Counsel that this, the definition number two
is too encompassing, it's too broad, and so is definition number three.
Definition number one encompasses intent, and so that would be, but
numbers two and three is just, are just too broad.
Mr. Fisher. All right, Your Honor.
Judge Wright. And number one is not too broad, however, so I'll let
you use that definition as long as we understand that that's not Rule
413, it's just the rule that would apply in this case to intentional
sexual contact.
Mr. Fisher. Yes, Your Honor, and had I been allowed to develop this
further, everyone would have seen that Deposition Exhibit 2 is actually
the definition of sexual assault or offensive sexual assault, which is
the term in Rule 413.
Mr. Bennett. Your Honor, I object to this record being filled with
these kinds of things. This is going to leak. Why don't they ask--they
have got the President of the United States in this room for several
hours. Why don't they ask him questions about what happened or didn't
happen?
Judge Wright. I will permit him to refer to definition number one,
which encompasses knowing and intentional sexual contact for the
purpose of arousing or gratifying sexual desire. I'll permit that. Go
ahead.
Q. All right, Mr. President, in light of the Court's ruling, you
may consider subparts two and three of Deposition Exhibit 1 to be
stricken, and so when in my questions I use the term ``sexual
relations,'' sir, I'm talking only about part one in the definition of
the body. Do you understand that, sir?
A. I do.
Q. I'm now handing you what has been marked Deposition Exhibit 2.
Please take whatever time you need to read Deposition Exhibit 2.
Mr. Bennett. Your Honor, again, what I am very worried about, Your
Honor, is first of all, this, this, this appears to be a--I mean what I
don't want to do is have him being asked questions and then we don't,
we're all ships passing in the night. They're thinking of one thing,
he's thinking of another. Are we talking criminal assault? I mean this
is not what a deposition is for, Your Honor. He can ask the President,
what did you do? He can ask him specifically in certain instances what
he did, and isn't that what this deposition is for? It's not to sort of
lay a trap for him, and I'm going to object, to the President answering
and having to remember what's on this whole sheet of paper, and I just
don't think it's fair. It's going to lend to confusion.
Judge Wright. All right, do you agree with Mr. Bennett?
Mr. Bristow. I had one other point to add Your Honor.
Judge Wright. All right.
Mr. Bristow. This is almost like in a typical automobile accident
where the plaintiff's counsel wants to ask the defendant were you
negligent. That's not factual.
Judge Wright. Mr. Fisher, do you have a----
Mr. Fisher. Yes, Your Honor. What I'm trying to do is avoid having
to ask the President a number of very salacious questions and to make
this as discreet as possible. This definition, I think the Court will
find, is taken directly from Rule 413 which I believe President Clinton
signed into law, with the exception that I have narrowed subpart one to
a particular section, which would be covered by Rule 413, and I have
that section here to give the President so that there is no question
what is intended. This will eliminate confusion, not cause it.
Mr. Bennett. Your honor, I have no objection where the appropriate
predicates are made for them to ask the President , did you know X, yes
or no, what happened, what did you do, what didn't you do. We are--
acknowledge that some embarrassing questions will be asked, but then we
will know what we're talking about, but I do not want my client
answering questions not understanding exactly what these folks are
talking about.
Now, Your Honor, I told you that the President has a meeting at
four o'clock, and we've already wasted twenty minutes, and Mr. Fisher
has yet to ask his first factual question.
Judge Wright. Well, I'm prepared to rule, and I will not permit
this definition to be understood. Quite frankly there's several
reasons. One is that the Court heretofore has not proceeded using these
definitions. We have used, we've made numerous rulings or the Court has
made numerous rulings in this case without specific reference to these
definitions, and so if you want to know the truth, I don't know them
very well. I would find it difficult to make rulings, and Mr. Bennett
has made clear that he acknowledges that embarrassing questions will be
asked, and if this is in fact an effort on, on the part of Plaintiff's
Counsel to avoid using sexual terms and avoid going into great detail
about what might or might not have occurred, then there's no need to
worry about that, you may go into the detail.
Mr. Bennett. If the predicates are met, have no objection to the
detail.
Mr. Fisher. Thank you, Your Honor.
Judge Wright. It's just going to make it very difficult for me to
rule, if you want to know the truth, and I'm not sure Mr. Clinton knows
all these definitions, anyway.
Did you hear that last statement from the judge? ``I'm not
sure Mr. Clinton knows all these definitions, anyway.''
Now, before the grand jury the President discussed at some
length and in great detail his interpretation of the definition
that he was asked to apply during that deposition--the
definition that he was asked to apply. And he gave lengthy and
sustained answers. And when you read the grand jury testimony,
as I urge you to do, you will see that they are consistent and
they are logical and there is reason behind his conclusion that
his activities with Ms. Lewinsky simply did not fall within
that definition.
There is no mystery, no deception, no lying, no effort to
conceal his view. His view is there for all to see. It is also
reported from these limited excerpts from the grand jury
testimony. It is a plain statement of his understanding. And to
argue that the President, when he conveyed his understanding of
that definition, doesn't really believe his argument, and to
contend that he is committing perjury when he told the grand
jury that he genuinely believed his interpretation of the
definition--that is just speculation about what is in his mind
and it is not the stuff or fuel of a perjury prosecution.
Now, I would like to return very briefly to the group of
experienced prosecutors who gave their opinion about the
President's testimony before the grand jury on this issue. They
said that the President's interpretation was a reasonable one
under the circumstances, but the managers claim that the
President's explanation of the Jones definition, his
interpretation, his understanding, and his argument with the
lawyers from the Office of Independent Counsel, are the heart
of the perjury.
Let's hear what the prosecutors said about this and read
the transcript of their testimony when they testified before
the House Judiciary Committee. And first we will listen to Tom
Sullivan.
[Text of videotape presentation:]
Mr. Sullivan. Thank you very much, Mr. Hyde. It's clear to
me that the president's interpretation is a reasonable one,
especially because the words which seem to describe oral sex--
the words which seem to describe directly oral sex were
stricken from the definition by the judge. In a perjury
prosecution, the government must prove beyond a reasonable
doubt, that the defendant knew when he gave the testimony, he
was telling a falsehood. The lying must be knowing and
deliberate. It is not perjury for a witness to evade or
obfuscate or answer nonresponsively. The evidence simply does
not support the conclusion that the president knowingly
committed perjury, and the case is so doubtful and weak that a
responsible prosecutor would not present it to the grand jury.
We have one more excerpt from his testimony.
[Text of videotape presentation:]
Mr. Sullivan. . . . In perjury cases, you must prove that
the person who made the statement made a knowingly false
statement. Now, where I think the defect in this prosecution
is, among others--and I don't think it would be brought,
because it's ancillary to a civil deposition--is to establish
that the president knew what he said was false. When he
testified in his grand jury testimony, he explained what his
mental process was in the Jones deposition, and he said the two
definitions that would describe oral sex had been deleted by
the trial judge from the definition of sexual relations and I
understood the definition to mean sleeping with somebody. I
don't want to get to particular here.
Rep. Lofgren. Thank you.
Mr. Sullivan. But that is where this case, in my opinion,
wouldn't go forward even if you found an errant prosecutor who
would want to prosecute somebody for being a peripheral witness
in a civil case that had been settled. That's my answer to
that.
The managers place great emphasis and weight on the
conflict in the testimony between President Clinton and Ms.
Lewinsky over some specific intimate details related to their
activity. There is a variance between the President's testimony
and Ms. Lewinsky's testimony about the details of what they
did. What do they disagree about? Not about whether the
President and Ms. Lewinsky had a wrongful relationship--the
President admitted that before the grand jury. Not about
whether the President and Ms. Lewinsky were alone together--the
President admitted that before the grand jury. Not about
whether, when they were alone together, their relationship
included inappropriate, intimate contact--the President
admitted that before the grand jury. Not about whether they
engaged in telephone conversations that included sexual
banter--the President admitted that before the grand jury. Not
about whether the President and Ms. Lewinsky wanted to keep
their wrongful relationship a secret--the President admitted
that before the grand jury.
The difference in their testimony about their relationship
is limited to some very specific, very intimate details. And
this is the heart of the entire matter, this disparity in their
testimony. The true nub of the managers' allegation that the
President committed perjury is that he described some of the
contact one way and she describes it another.
Not surprisingly, the managers choose to believe Ms.
Lewinsky's description of these events. And so, even in the
absence of any evidence to the contrary, other than Ms.
Lewinsky's own recollection of these events, the managers have
concluded that the President lied under oath about the details
of his sexual activity, that he somehow shortchanged the grand
jury, and should be removed from office.
The possibility that the question of whether the President
of the United States should be removed from his office--the
fact that that might hinge on whether you believe him or her on
this issue is a staggering thought. Ordinarily when dealing
with disparity in testimony such as this, prosecutors will have
nothing to do with it. Only two people were there. And, in
truth, the real importance of the disparity in their testimony
is questionable. Not all disparities or discrepancies in
testimony are necessarily appropriate subjects for perjury
prosecutions.
According to those experienced prosecutors who testified
before the Judiciary Committee, there are two more points to be
made about this. First, this is a classic oath on oath--he
says, she says--swearing match, that, under ordinary custom and
practice at the Department of Justice, never would be
prosecuted without substantial corroborative proof. Such proof,
say these experienced prosecutors, does not consist of
testimony of friends and associates of Ms. Lewinsky who tell
the FBI that Ms. Lewinsky contemporaneously told them about the
activity, if it was going on. But the managers claim that these
contemporaneous statements corroborate Ms. Lewinsky's
testimony.
That claim is specious. Statements that Ms. Lewinsky makes
to other people are not viewed as independent corroborative
evidence. They come from the same source. They come from Ms.
Lewinsky, as the source that gave that testimony to the grand
jury. And no court and no prosecutor would accept the notion
that such statements, standing alone, satisfy the requirement
of substantial corroborative proof when there is a swearing
match.
Now, let's see what the experienced prosecutors have to say
about this issue and that claim.
[Text of videotape presentation:]
Rep. Wexler. . . . What is the false statement?
Mr. Sullivan. Well, if you--it could be one of two. It
could be when he denied having sexual relations and I've
already addressed that, because he said, ``I was defining the
term as the judge told me to define it and as I understood
it,'' which I think is a reasonable explanation. The other is
whether or not he touched her--touched her breast or some other
part of her body, not through her clothing, but directly. And
he says, ``I didn't,'' and she said, ``I (sic) did,'' so it's
who-shot-John. It's, it's, you know, it's a one on one. The
corroborative evidence that the prosecutor would have to have
there, which is required in a perjury case--you can't do it one
on one, and no good prosecutor would bring a case with, you
know, I say black, you say white--would be the fact that they
were together alone and she performed oral sex on him. I think
that is not sufficient under the circumstances of this case to
demonstrate that there was any other touching by the president
and therefore he committed this--you know, he violated this--
and committed perjury.
Now the testimony from Richard Davis on this same point,
and then we will move to subpart 2.
[The text of videotape presentation:]
Mr. Davis. . . . I will now turn to the issue of whether,
from the perspective of a prosecutor, there exists a
prosecutable case for perjury in front of the grand jury. The
answer to me is clearly no. The president acknowledged to the
grand jury the existence of an improper intimate relationship
with Monica Lewinsky, but argued with the prosecutors
questioning him, that his acknowledged conduct was not a sexual
relationship as he understood the definition of that term being
used in the Jones deposition. Engaging in such a debate,
whether wise or unwise politically, simply does not form the
basis for a perjury prosecution. Indeed, in the end, the entire
basis for a grand jury perjury prosecution comes down to Monica
Lewinsky's assertion that there was a reciprocal nature to
their relationship, and that the president touched her private
parts with the intent to arouse or gratify her, and the
president's denial that he did so. Putting aside whether this
is the type of difference of testimony which should justify an
impeachment of a president, I do not believe that a case
involving this kind of conflict between two witnesses would be
brought by a prosecutor, since it would not be won at trial.
A prosecutor would understand the problem created by the
fact that both individuals had an incentive to lie--the
president to avoid acknowledging a false statement at his civil
deposition, and Miss Lewinsky to avoid the demeaning nature of
providing wholly unreciprocated sex. Indeed, this incentive
existed when Miss Lewinsky described the relationship to the
confidantes described in the independent counsel's referral.
Equally as important, however, Mr. Starr has himself questioned
the veracity of one witness, Miss Lewinsky, by questioning her
testimony that his office suggested she tape record Ms. Currie,
Mr. Jordan, and potentially the president. And in any trial,
the independent counsel would also be arguing that other key
points in Miss Lewinsky's testimony are false, including where
she explicitly rejects the notion that she was asked to lie and
that assistance in her job search was an inducement for her to
do so.
The conclusion is clear: To make this case in any courtroom
would be very difficult for a prosecutor. They point out that
it is difficult, if not impossible, to put on a successful
prosecution if the chief witness is deemed by the prosecutors
to be unreliable on some issues, but presented as totally
truthful on others.
Now let's move to subpart 2, and it is exhibit No. 18. The
allegations of perjury here have to do with testimony that he
gave at the grand jury about his deposition in the Jones case.
And I begin by repeating a point that I made a little earlier,
that the House of Representatives did not vote to approve the
article that alleged that President Clinton committed perjury
during his deposition in the Jones case. As I said before,
there was good reason for that.
What are the reasons? There are many reasons. The
President's testimony in the Jones deposition involved his
relationship with a witness who was ancillary to the core
issues of the Jones case. She was a witness in the case. She
wasn't the plaintiff in the case, and she was ancillary to the
core issues in the case, someone whose testimony was thereafter
held to be unnecessary and perhaps inadmissible by Judge Susan
Webber Wright, someone whose truthful testimony would have
been, in any event, of marginal relevance since her
relationship with the President was entirely consensual. And,
as you know, this was a case that ultimately was found to have
no legal or factual merit. It was dismissed by the judge, and
it is now being settled by the parties.
Moreover, the President was caught by surprise in that
deposition and asked questions about matters that the Jones
lawyers already knew the answers to. As you heard yesterday,
the Jones lawyers had been briefed the night before by Linda
Tripp. So they were asking questions of President Clinton in
the course of this deposition about the relationship to which
they already had the answers. That kind of ambush is profoundly
unfair, and it is one reason that Congressman Graham said that
he voted against this article in committee--the surprise. He
was the only Republican to do so. He was the only Republican to
vote against any article, and the decision of the House to
follow Congressman Graham's leadership and to reject this
article showed great wisdom and judgment.
But apparently that is not to be the end of the matter when
it comes to allegations of perjury in the Jones deposition. In
subpart 2 of article I, the managers seek to reintroduce the
issue of the President's testimony in the case by alleging that
when the President testified before the grand jury, he
testified falsely when he said that he tried to testify
truthfully in the Jones deposition. Congressman Rogan, Mr.
Manager Rogan has claimed that the President's answers ratified
and reaffirmed and put into issue all of his answers in the
Jones deposition when he testified that he believed he did not
violate the law in the Jones deposition.
``This is perjurious testimony,'' said Manager Rogan,
``because the record is clear''--I am quoting--that he did not
testify truthfully in the deposition, and by that bootstrapping
mechanism, we are now in a litigation about whether every
single statement that the President made in the Jones
deposition was or was not truthful to determine whether or not
the President's testimony that he was truthful is or is not
truthful.
But, in fact, President Clinton did not ratify, he did not
reaffirm his Jones testimony when he testified before the grand
jury, and you will see that when you read the transcript of his
testimony. Quite the contrary is true. If you look at that
transcript carefully, you will find that without admitting
wrongdoing, the President elaborated, he modified, he amended
and he clarified his testimony in Jones. And when Mr. Schippers
made his closing argument to the House Judiciary Committee, I
think he used the truthfulness, on one occasion, of the
President's testimony before the grand jury to support his
argument that the President lied in Jones.
But actually the specific wording of subpart 2 gives us no
specific information and is not illuminating, and we turn to
the managers' trial brief to ascertain precisely what the
argument is. There the managers allege that the President
falsely testified that he answered questions truthfully at his
deposition concerning, among other things, whether he had been
alone with Ms. Lewinsky. I begin by saying, again, this
allegation was not included in the Starr referral. Why? Because
it is based on a total misconception of the President's grand
jury testimony.
As I referred to earlier, this is exhibit No. 7, I believe,
and it shows you some evidence--this is not the complete
evidence of his testimony about being alone. The prosecutors
asked the President many questions about being alone with Ms.
Lewinsky, but they never asked him about the Jones testimony.
They asked him about whether he was alone; he never was asked
about the Jones testimony:
``When I was alone with Ms. Lewinsky on certain
occasions,'' it says right there--``When I was alone . . .''
Let me ask you, Mr. President, you indicate in your
statement that you were alone with Ms. Lewinsky. Is that right?
Yes, sir.
How many times were you alone with Ms. Lewinsky?
Let me begin with the correct answer. I don't know for
sure. But if you would like me to give an educated guess, I
will do that. . . .
And then you will see over two or three pages of testimony
he tries to recall times and incidents when he was alone with
Ms. Lewinsky.
And so the prosecutor says, ``So if I could summarize your
testimony, approximately 5 times you saw her before she left
the White House, approximately 9 times after she left the
employment?'' ``I know there were several times in '97,'' the
President said. ``I would think that would sound about right.''
This is not a man denying that he was alone with Ms.
Lewinsky, but he was not asked about his testimony on that
topic when he testified in the Jones case.
Now, the managers further allege that the President's
testimony before the grand jury that he testified truthfully at
his deposition was a lie. In fact, his testimony there that
they quote as being false was this: ``My goal in this
deposition was to be truthful but not particularly helpful.''
``My goal in this deposition to be truthful,'' they say, is
false. ``I was determined to walk through the minefield of this
deposition without violating the law, and I believe I did.''
His statement that ``I believe I did,'' they say, means that
everything that he said in the Jones deposition was true. The
President's statement that he set a goal and believes--
believes--he has met it is, according to the managers,
perjurious for which he should be removed from office.
And it is through this device that the managers seek to
achieve, by indirection, what they were specifically forbidden
to do by the direct vote of the House of Representatives. By
claiming that the President's assertions in the grand jury were
false when he described his state of mind--``I believed,'' ``I
tried,'' ``I was determined,'' ``my goal was''--the managers
seek to put all of the President's evasive and misleading
testimony in the Jones deposition in issue. That effort, I
submit, should be rejected.
Let me cite one rather painful example in support of the
President's testimony that he, in fact, tried to answer
accurately when he testified in the grand jury. He was asked
whether or not he ever had sexual relations with Gennifer
Flowers, and he answered, ``Yes,'' that he had, under the
definition of sexual relations being used in the Jones case. He
later said that he would rather have taken a whipping in public
than to acknowledge that relation because he knew it would be
leaked to the public, which it was.
Now, if he didn't care about telling the truth in that
deposition, if he went into that deposition with the intention
of denying anything and everything that was embarrassing, if he
really had decided in his own mind that whatever the Jones
lawyers asked him, he was not going to be truthful about it, he
never would have testified the way he did about Gennifer
Flowers.
Now, ladies and gentlemen of the Senate, the President does
not claim--and he never was asked in front of the grand jury,
and he never asserts in front of the grand jury--that all his
testimony in the Jones deposition was truthful. His statement
was that he tried to be accurate, that his goal was to be
truthful, but that statement is not a broad reaffirmation of
the accuracy of all his testimony, despite the House managers'
desire to characterize it as such. Those were accurate
descriptions of the President's state of mind at the time he
testified.
The real issue here is not the truth of the underlying
statements made by the President in the Jones deposition but
the President's explanation of those statements, whether his
description of his efforts to walk this fine line that he gave
to the grand jury was accurate. Whether you agree or disagree
with the President's view that he was or was not successful in
his undertaking not to break the law and to be lawful, that
argument is an argument. And it is not a secret argument. He
has that out there open for everybody to see. That argument is
hardly a proper subject for a perjury claim. And his simple
restatement of his legal position to the members of the grand
jury is hardly the stuff of a perjury prosecution.
Actually, if you look at the President's grand jury
testimony, you will see that he provided much more complete,
much more accurate, much more reliable testimony about many of
the topics covered in Jones. And the notion that he reaffirmed,
confirmed, or ratified his Jones testimony is just unsupported
by the evidence.
It would be astonishing to think that the Senate would
conclude that the President should be removed from office
because in the grand jury he gave voice to a legal opinion and
stated his own personal belief that his testimony in the Jones
deposition did not break the law.
I submit to you that if that was the case, the Office of
the Independent Counsel would have included that in the
referral, and they did not. In fact, let me just say right now
none of the rest of the allegations that we are going to be
discussing in the article that we are talking about today are
included in the Starr referral. The rest are entirely the
product of the managers.
Subpart 3, which is the exhibit No. 19. This has to do with
the President's testimony about statements he allowed his
attorney to make to a Federal judge in the Jones case. And you
saw the tape of that testimony last week.
According to the trial memorandum, the President remained
silent during the Jones deposition at a time when his counsel,
Mr. Bennett, made false and misleading representations to the
court about Ms. Lewinsky's affidavit. Pointing to the Lewinsky
affidavit, Bennett stated that Ms. Lewinsky had filed an
affidavit ``saying that there is absolutely no sex of any kind
in any manner, shape or form with President Clinton.'' And when
asked by the Independent Counsel about this moments before the
grand jury, the President testified that he hadn't paid much
attention, that he was thinking about his testimony. And he
says this four or five times. This is not just once; he says
this four or five times. He is emphatic that he didn't pay
attention and the words went by him.
Now, in support of their claim that the President lied when
he said he was not paying attention, the House managers point
to the videotape record of the President's testimony which
shows, they argue, that the President was ``looking directly at
Mr. Bennett, [and] paying close attention to his argument to
Judge Wright.''
This allegation, not included in the Starr Report, is even
more curious than the previous one because it is based on a
novel legal theory which jeopardizes all lawyers in this
building, which is that a client has an enforceable obligation
to correct his attorney's alleged misstatements. And if he
doesn't make those corrections, he--the client--will be held
liable to charges of perjury and obstruction of justice.
The charge is that the President misled the grand jury when
he said that he was not paying attention. While the videotape
shows that the President was looking in Bennett's direction,
there is nothing that can be read in his face or in his body
language to show that he is listening to, understanding, or
affirming Mr. Bennett's statement--no nod of the head, no
movement at all, no comment, nothing.
What happens is this: Mr. Bennett makes his comment and is
interrupted by the judge. She says, ``No, just a minute, let me
make my ruling,'' before Mr. Bennett has a chance to complete
his argument. And after interrupting Mr. Bennett, the judge
makes a lengthy observation, followed by an intensive exchange
among all counsel and the judge. The moment is fleeting. It
goes by very, very quickly.
The moment occurs not at the beginning of the deposition,
but well into it, after President Clinton has in fact been
subjected to questions about Monica Lewinsky. Mr. Clinton, as
you know, has been surprised by the direction the case has
taken and the fact that the exclusive focus of these questions
is on Lewinsky. He did not know this was coming. He did not
expect it. As he put it in his grand jury testimony, ``I had no
way of knowing that they would ask me all these detailed
questions. I did the best I could to answer them.''
At that moment, because the questions had focused on Ms.
Lewinsky--to the exclusion of everything and everybody else,
including the Jones case--questions about the Jones case didn't
occur until much, much later and near the end of the
deposition. The President must have realized that the Jones
attorneys probably knew about his relationship with Monica
Lewinsky. He obviously had not taken any steps to prepare to
answer questions about that relationship and he was clearly
caught off guard.
It is not farfetched to think at that moment his mind was
flooded with thoughts about how to get through the deposition.
It is not implausible to think at that moment the President was
preoccupied, watching his lawyer do his job, and not listening
carefully and not tracking word by word the substance of the
exchange.
Those of you who have practiced law and have represented
individuals under stress at depositions know that this can
happen. Is it really reasonable to think that you can tell
beyond a reasonable doubt what is going on in the President's
mind by looking at the videotape? And if you can and you are
convinced he has heard, does he have any obligation to say
anything? If he doesn't, then this case, this allegation,
amounts to nothing.
It is hard to believe that the House managers--if it did, I
think the Starr people would have brought it--it is hard to
believe that the House managers believe that the Senate should
conclude that the President committed perjury and should be
removed from his office on the basis of his silence, his
failure to speak.
Now, there is a second allegation associated with this
incident, one that Congressman Rogan asserted in his
presentation, but is not discussed in the trial memorandum.
This has to do with the President's now famous testimony about
Mr. Bennett's statement about Ms. Lewinsky's affidavit. It
depends upon what the meaning of ``is'' is. Let's talk about
that just a minute.
While raising questions about the good faith of the Jones
attorney in asking questions about Ms. Lewinsky--this is in the
Jones deposition--while raising questions about the good faith
of the Jones attorneys and asking questions about Ms. Lewinsky
and not knowing if these same lawyers actually know the answers
to the questions, Mr. Bennett said, referring to the Jones
lawyers, ``Counsel is fully aware that [Ms. Lewinsky] has filed
an affidavit . . . saying that there is absolutely no sex.''
``There is absolutely no sex of any kind in any manner, shape
or form with President Clinton.''
Now, during his grand jury testimony, the independent
counsel reads that statement to the President. He gets
President Clinton to agree that the statement was made by the
President's attorney in front of Judge Wright. And here is what
the independent counsel says to President Clinton in the grand
jury after reading Mr. Bennett's words:
That statement is a completely false statement. Whether or
not Mr. Bennett knew of your relationship with Ms. Lewinsky,
the statement that there is ``no sex of any kind, manner shape
or form with President Clinton'' was an utterly false
statement.
And he asks the President, ``Is that correct?'' At that
point, pausing just a moment for reflection, President Clinton
gives his opinion and explains that opinion.
To understand the President's argument, you must know first
that there has been no inappropriate contact with Ms. Lewinsky
at the time of that deposition for, according to his
recollection, almost a year; according to hers, 10 months. So
it is not in dispute at that moment in time and for previous
months there has been. And there is no sexual relationship
currently, even though there had been one in 1995, 1996, and in
the early part of 1997, some months back.
Now, the President makes a political mistake here and gives
in to his instinct to play his own lawyer, to be his own
advocate. You may find it frustrating, you may find it
irritating, when you watch him do this, but he is not
committing perjury; he is committing the offense of nit-picking
and arguing with the prosecutors. He is arguing a point, and so
he says that whether Mr. Bennett's statement is false depends
on what the meaning of ``is'' is. Mr. Bennett's statement is
true if ``is'' means an ongoing relationship, but Mr. Bennett's
statement is false if ``is'' means at any time ever in time.
Now the President's answer to Mr. Bennett's question and
the statements that follow it amount to an annoying argument
over the interpretation of what Mr. Bennett said, focused on
the tense of the verb. And the President is being his own
lawyer. The grounds he has argued are fully stated, fully
explained. There is no mystery. He is not concealing anything.
Making this argument is not perjury.
There is one final point to make about this incident
because, again, I think there was a mischaracterization of what
the President actually said in the grand jury. He didn't say
that at the time Mr. Bennett made that statement in the Jones
deposition, he caught the word ``is'' and recognized, ``Ah-ha,
I've got an exit. That makes it accurate.'' Quite to the
contrary. He is clear in front of the grand jury when he says
that he didn't even notice this issue until he was reviewing
the transcript in preparation for his grand jury testimony. He
is clear in pointing out the argument that he is making is one
that he just discovered.
Let me quote from that portion of his testimony which
appears on pages 512 and 513 which make it clear that he wasn't
ever claiming that he spotted that verb tense at the time in
the Jones deposition and his silence or his answer was based on
spotting the verb tense then. This is something he discovered,
noticed, and, as a lawyer, argued in the grand jury. ``I never
even focused on that''--meaning that issue of a verb tense--
``until I read it in this transcript in preparation for this
testimony . . .'' ``I wasn't trying to give you a cute answer
that I obviously wasn't involved in anything improper in the
deposition. I was trying to tell you generally speaking in the
present tense if someone said that, that would be true. But I
don't know what Mr. Bennett had in mind. I don't know.''
Now, the President was open and honest and obvious in what
he was arguing, and that is precisely what he was doing on this
occasion. He was arguing a point that, as a technical matter,
Bennett's statement could be read as being accurate.
I point out again that this particular allegation was not
included in Mr. Starr's referral. An argument that is
identified as an argument, the grounds of which are clear to
all, is not the basis for a perjury prosecution.
Subpart 4 of this article has to do with false and
misleading testimony about the President's efforts, allegedly,
to influence witnesses and to impede discovery in Jones. Now,
as I have said before, at the beginning of my presentation, the
fourth category of allegedly perjurious, false, and misleading
grand jury testimony overlaps with article II of allegations of
obstruction of justice.
I will say right now that Cheryl Mills will be appearing
here when I have completed and David Kendall tomorrow to
present the arguments on article II, why the President should
not be found guilty and is not guilty of the allegations of
obstruction of justice in article II.
According to the managers' trial brief, making this
argument that he also perjured himself about these matters,
they claim these lies are the most troubling as the President
used them in an attempt to conceal his criminal actions. One
begins with a self-evident proposition--at least, to us--that
the President did not obstruct justice, and we hope you agree
with us by the end of the day tomorrow when we explain the
evidence. But his explanation, if that is so, of what he did or
didn't do to the grand jury were always truthful. Put another
way, if the President didn't obstruct justice, he also didn't
commit perjury when he denied it.
According to the managers, the general language of this
provision of subpart 4 is supposed to include a wide range of
allegations, so we have some subparts of the subpart. But none
of these allegations, let me say, ladies and gentlemen of the
Senate, none of these was included or thought sufficiently
credible to be included in the OIC referral, nor were these
allegations included in Mr. Schippers' initial presentation to
the Judiciary Committee. They are nothing more than an effort
to inflate the number of perjury allegations by converting
every answer that the President gave to the grand jury about
the subject matter of article II into a new count of perjury,
the double billing, if you will. All of these allegations are
more properly part of our defense on the obstruction of justice
allegation. But I will try to respond briefly to the allegation
of perjury, his testimony about Monica Lewinsky's false
affidavit. This grows out of the President's conversation with
Ms. Lewinsky, allegedly, on December 17, in which he is said to
have corruptly encouraged Ms. Lewinsky to execute a sworn
affidavit that he knew to be perjurious, false, and misleading.
In that famous late-night telephone conversation, Ms.
Lewinsky asked the President what she could do if she were
subpoenaed in the Jones case. According to Ms. Lewinsky, the
President responded, ``Well, maybe you can sign an affidavit.''
That is what Ms. Lewinsky's recollection is.
Now, in the grand jury, the President was repeatedly
questioned about this conversation and he repeatedly answered
emphatically. This is another example where it is not once or
twice, it is three or four times. He truly thought he said that
she could have sworn out an honest affidavit. The managers
claim that when he said that--that he thought that she could
swear out an honest affidavit--the President perjured himself.
Now, the President's testimony in the grand jury on this
point is not in any way cautious or qualified. He makes similar
statements on four different occasions during that testimony,
concluding with this tape:
I have 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 would be able to get out of
testifying on the affidavit? Absolutely. Did I want her to
execute a false affidavit? No, I did not.
Now, the heart of the managers' argument is that there was
no way that an honest affidavit can achieve what the President
and Ms. Lewinsky both wanted to have achieved, which was to
avoid her having to testify. And so the managers claim the
President's statement that he thought she could make out an
honest affidavit and avoid testifying in the Jones case about
her relationship with the President is perjury.
Once again, the managers claim that the President is guilty
of perjury because he is testifying falsely about his state of
mind. It wasn't true, they argued, that he really thought she
could make out and sign and execute an honest affidavit; he
could not have thought that; he wanted and expected her to lie
in that affidavit, and that is why he suggested, ``Well, you
can always file an affidavit.''
Now, Ms. Lewinsky's inappropriate contact with the
President was consensual. An affidavit being sought in a case
involving allegations of sexual harassment that says there was
no harassment, no effort to impose unwanted sexual overtures,
would have been an affidavit that Ms. Lewinsky could honestly
execute--an affidavit stating that she had never been on the
receiving end of any unwanted sexual overtures from the
President and that she had never been harassed.
Second, both Ms. Lewinsky and the President had a
definition of ``sexual relations'' that would have allowed Ms.
Lewinsky, in her own mind, honestly and accurately, in their
view, to swear an affidavit that she had never had sexual
relations--meaning what she meant in the exhibits we
distributed--with the President. She would have thought that
was a factual and accurate affidavit, and so would the
President at that time.
Third, it is clear that Ms. Lewinsky understood that it was
not necessary to volunteer information in an affidavit, but, on
the contrary, she would try to give only that small but true
portion of the whole story. She talks about this at some length
in her telephone conversation with Linda Tripp. In her words,
the goal of an affidavit is to be as benign as possible, to
avoid being deposed. She is her own operator; she knows what
she is doing.
Please recognize what the managers are trying to do here.
In article II, they accuse the President of obstructing justice
by suggesting that Ms. Lewinsky should file an affidavit,
knowing full well that the affidavit would have to be false.
And when the President, under oath in the grand jury, denies
that he believed that the affidavit would have to be false,
they accuse him of perjury.
The two allegations are inextricably intermingled, and if
you conclude, as you should, that there is no evidence to
support the underlying allegation, that the underlying offense
is based on nothing but pure conjecture, you will conclude that
the perjury charge is nothing more than an attempt to get two
bites at the same apple.
The second element is the President's testimony about the
gifts. The managers' trial brief says that the President
committed perjury when he testified that he told Ms. Lewinsky
that if the Jones lawyers requested the gifts that he had given
to her, she should provide them. Atypically, the brief quotes
the President's precise language which is at issue in this
particular allegation:
And I told her that if they asked her for gifts, she would
have to give them whatever she had. That's what the law was.
This testimony, the managers claim, is false. They say he
never said that, and that when he said it in the grand jury, he
is guilty of perjury.
Now, the only evidence offered to support the allegation
that the President testified falsely before the grand jury on
this topic is, A, that Ms. Lewinsky raised a question with the
President as to what she should do with the gifts. You have
heard a lot of testimony about that, which only establishes one
thing--that the topic came up. That is totally consistent with
the President's testimony and has no bearing whatsoever on
whether the President did or did not say what he claims to have
said.
The second piece of evidence is that Ms. Currie ended up
picking up the gifts and taking them home with her, which, no
matter how you might try to spin that, simply cannot be
construed as evidence showing that the President perjured
himself when he told the grand jury that he had given this
advice to Ms. Lewinsky. ``Tinkers to Evers to Chance.''
This allegation is all conjecture and there is no evidence.
It is really astonishing that the managers would seriously
include it in their case. Kenneth Starr did not, and it was not
discussed or debated by the House Judiciary Committee.
The majority's report makes another entirely different
allegation about this matter. There, the House Republicans cite
the President's denial--this is a denial, not an affirmation.
The first has to do with testimony in front of the grand jury
that he said something to Monica Lewinsky. The second has to do
with a denial that he ever instructed Ms. Currie to pick up the
gifts. From the transcript of the President's grand jury
testimony, I quote:
Question: After you gave Monica Lewinsky the gifts on
December 28, did you speak with your secretary, Ms. Currie, and
ask her to pick up a box of gifts that were some compilation of
gifts that Ms. Lewinsky would have----
Answer: No, sir, I didn't do that.
Question: --to give to Ms. Currie?
Answer: I did not do that.
According to the majority's report, this testimony was
perjurious, false, and misleading. The problem is, this
allegation is similar to the problem with the previous one,
only greater. In the first allegation, there is no one who
testified that the President did not say what he testified
under oath he said, and in this allegation there is no one who
testified that the President said what he testified under oath
he did not say.
In other words, the House managers offer you this argument:
Nobody says the President made this statement; we just think he
did; so we are charging him with perjury for denying it, and
you should remove him from office, despite the absence of
evidence.
Again, this was not included in the Starr referral, and we
wonder how this kind of an allegation can seriously be brought
against the President of the United States.
The President's testimony about his January 18 conversation
with Ms. Currie: The President's meeting and conversation with
Betty Currie on Sunday, January 18, is an essential element in
the allegation of obstruction as set forth in article II, and
you will learn more about that from Cheryl Mills today. Because
the Office of Independent Counsel spent so much time on this
matter during President Clinton's grand jury testimony--they
examined the President on this topic on four separate occasions
during that 4-hour session--it was inevitable that the managers
would find some way, somehow to include his testimony about
this matter in article I. Just parenthetically, this too is an
allegation that the Office of Independent Counsel did not see
fit to make in its Referral to the House.
And so, once again, we begin with a question: What is it
precisely that the President said that is at the heart of this
allegation of perjury? In his presentation last Thursday,
Congressman Rogan quoted lengthy passages from a number of
President Clinton's answers on the subject but failed to
identify anything specific. Finally Congressman Rogan said
this:
When [the President] testified he was only making
statements to Ms. Currie to ascertain what the facts were,
trying to ascertain what Betty's perception was, this statement
was false, and it was perjurious. We know it was perjury
because the president called Ms. Currie into the White House
the day after his deposition to tell her--not to ask her, to
tell her--that he was never alone with Monica Lewinsky. To tell
her that Ms. Currie could always hear or see them, and to tell
her that he never touched Monica Lewinsky. These were false
statements, and he knew that the statements were false at the
time he made them to Betty Currie.
But that is not true; the President clearly asked her
questions as well as made declarative statements.
I confess to some confusion about what perjury Congressman
Rogan is really alleging here.
It seems to me that he has moved from the world of perjury
in article I to the world of obstruction, which is Cheryl and
David's article II.
The trial brief is more specific. They claim that the
testimony was false when the President went in and said that he
was ``trying to refresh [his] memory about what the facts
were;'' when he said that he wanted to ``know what Betty's
memory was about what she heard;'' and when he said he was
``trying to get as much information as he could.'' The purpose
of the meeting and the conversation, according to the trial
brief, was to influence Betty Currie's testimony, not to gather
information.
In truth, the President gave a number of different reasons
to the grand jury for seeking out Betty Currie and talking to
her about Monica Lewinsky, and it is totally plausible to
conclude that the last thing on the President's mind at that
particular moment was Betty Currie's potential role as a
witness in a Federal court.
More simply, the facts are that in making this particular
allegation, the managers have come up with two, three, or four
different statements by the President that they claim are
perjurious which makes it a total distortion of the President's
answer. There were many questions, and many answers, and then
the reasons he gave for seeking out Betty Currie. Kenneth Starr
made no such claim in his referral.
Finally, the President's testimony about allegations that
he influenced his aides; to influence; that he lied to his
aide--let me get it right. The allegation is that when the
President testified in front of the grand jury and denied that
he misled his aides or told them false things, that it was
``perjurious, false and misleading testimony'' because he was
really trying to use them to obstruct justice and influence the
grand jury. The President testified in much greater detail on
this topic about the details about his conversation with his
aides than the managers suggest. And he never said that he only
told them ``true things.''
In fact, if you look at that testimony--and I urge you to
do so; it is another topic that will take up some time--the
President acknowledged that he misled an aide and he apologized
for it. And he testified that actually he couldn't remember
much of what he told his aide. He never challenged or denied
what John Podesta said that he told him. He told the grand
jury. He told them. And he never challenged Sidney Blumenthal's
version of what he said to Mr. Blumenthal. There is absolutely
no evidence to suggest that the President intended to deceive
the grand jury on this matter because he never denied saying
what they said he told them about his relationship. And that is
what he told them. It was not just true things. He told them
inaccurate things. He did not give the testimony that
Congressman Rogan claims that he gave. He did not say that he
did not mislead his aides. He said that he had, in fact, misled
his aide. He does say that he tried to tell true things, but he
does not conceal the nature of the true things he is talking
about.
So you can make up your own mind whether you agree with his
characterization that there are true things. He described them
for all to see and understand. For example, he says that he
told his aides, ``I never had sex with her,'' as it was defined
in his mind. You may disagree with his characterization of what
he told them as being a true thing, but he certainly doesn't
conceal the basis of his belief that it is true. He also said
that he was not involved with Ms. Lewinsky in any sexual way.
And he explains by use of the present tense he thought that was
a true thing.
But the materiality of this alleged perjury is really a
mystery. That the President misled his aide is not an issue.
That his aides became witnesses before the grand jury and that
the President knew they would probably be called, it is simply
not in dispute. Nor does the President dispute the testimony of
Podesta and Blumenthal. The only issue here is whether the
President, when he discussed Monica Lewinsky with these aides,
was seeking to influence the grand jury's proceedings by giving
his aides false information. This is not a perjury challenge.
This is a subject to be dealt with in the context of article II
and obstruction of justice.
What does it all add up to? Mr. Ruff had it right. Beneath
the surface of this article, this first article, there is
really a witches' brew of allegations pulled from all corners
of Bill Clinton's grand jury testimony. He is alleged to have
lied to the grand jury when he used innocent words to tell
about his improper contacts with Ms. Lewinsky. Truly, these are
frivolous allegations. He is alleged to have lied about the
date his improper activity with Ms. Lewinsky began, and whether
it was preceded by any period of friendship. These, too, are
frivolous allegations. The President didn't claim he said that,
but even if he did, the allegations are of no import. He is
alleged to have lied when he explained his understanding of the
Jones definition and testified that his genuine belief was that
the definition did not include the activity that he and Ms.
Lewinsky had engaged in.
Experienced prosecutors say that his interpretation was
reasonable. He is alleged to have lied about the intimate
details of his activity with Ms. Lewinsky. She says one thing;
he says another. This is precisely the kind of oath against
oath swearing match that is never prosecuted in the real world.
Given the President's overall testimony before the grand jury,
of what real significance is this disagreement? He is accused
of ratifying his every sentence in the Jones deposition. And by
saying that his goal was to be truthful, he is said to have
lied. But no one should be charged with perjury for asserting
innocence or proclaiming that he was trying to be truthful,
particularly when all the evidence supports his claim.
And finally, he is accused of lying about a variety of
actions aimed at concealing his improper and embarrassing
relationship with Ms. Lewinsky when each one of those actions
was motivated by nothing more than his desire to protect
himself and his family from embarrassment, if not destruction.
Think just for a moment and ask yourself whether these
allegations about this testimony is really an effort to
vindicate the rule of law, or is it something else? Ask
yourself what coming generations will think about these
charges. If you convict and remove President Clinton on the
basis of these allegations, no President of the United States
will ever be safe from impeachment again--and it will happen--
and people will look back at us, and they will say we should
have stopped it then before it was too late. Don't let this
happen to our country.
Before I conclude, I would like to respond to one specific
argument that we heard last week. One of the arguments most
frequently employed to urge the President's removal is that in
the United States of America no one is above the law; that if
the Senate does not take action against the President and
convict him and remove him from office, we will not be keeping
faith with that principle.
Members of the Senate, I could not disagree more with that
formulation of this issue. The principle that ``No one is above
the law'' is sacred. The idea that the wealthy or the powerful
or the famous should receive preferential treatment under the
law--treatment that is different from that accorded to the poor
and the weak--is anathema to everything that is great and good
and special about the United States. It is anathema to our
values and to our national ideals.
I agree with Mr. Hyde. Our fathers and grandfathers--going
back to the American Revolution--fought and died to defend the
principle of ``equal justice under law.'' This principle is not
only at the core of Anglo-Saxon jurisprudence, it is part of
the very foundation of our civic society.
But the framers, in their genius, did not design or intend
the awesome power of impeachment and removal for the purpose of
vindicating the rule of law. They believed that the power of
impeachment and removal should be used for a different
purpose--to protect the body politic, to protect the Government
itself from a President whose conduct was so abusive as to
constitute an assault on, a threat to the entire system.
We are all rereading the Constitution. We are all looking
at ``The Federalist Papers'' again. And when we do that, we
realize that the framers of the Constitution considered the
question of what to do when the highest officials of
Government, the President or the Vice President, are charged
with misconduct. And back then they made an important
distinction that we should recognize and respect today between
conduct in official capacity and conduct in private capacity.
They created two different ways of dealing with these two very
different kinds of conduct. Impeachment was to protect the
country from abuse of official power by an out-of-control
President or by someone who was so abusive and assaultive on
the system of Government that he had to be removed to protect
the Government.
The criminal justice system was to vindicate the rule of
law, and the clearest indication that one is not meant to be a
substitute for the other can be found in article I, section 3,
clause 7 of 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: but the party convicted shall nevertheless be liable
and subject to indictment, trial, judgment, and punishment,
according to Law.
If the President's conduct in his official capacity is so
grave as to be a serious assault upon the system of Government,
so serious as to subvert our constitutional order, so serious
as to require the Nation to be protected from the damage that
he would do if he were to continue in office, the remedy is
impeachment and removal by a political process.
If, however, the President's conduct does not implicate the
office or the powers of the Presidency, the remedy is a legal
process involving prosecution, conviction, and punishment in
the courts. In this fashion the principle is vindicated that
``no man is above the law,'' for in the criminal justice system
the President will be treated like any other citizen and
accountable to the rule of law.
The great scholar and justice, James Wilson, said it best
when he wrote:
Far from being above the laws, [the President] is amenable
to them in his private character as a citizen, and in his
public character by impeachment.
And more recently, just last November, Senator Specter made
the same point with equal eloquence when he proposed:
. . . abandoning Impeachment and, after the President
leaves office, holding him accountable in the same way any
other person would be; through indictment and prosecution for
any Federal crimes established by the evidence.
President Clinton should not be above the law, he is not
above the law, and he will not be above the law. As Senator
Specter rightly stated, the criminal justice system stands
ready to perform that function and to hold the President
accountable at some later date. And like any other citizen,
William Jefferson Clinton can be prosecuted for any crimes he
is alleged to have committed throughout his term of office.
It would be a profound mistake with lasting consequences
for the Members of this body, in the throes of a highly charged
impeachment trial, to conclude that only the Senate rather than
the criminal justice system should be the chosen instrument of
the Constitution to fulfill that principle. It is not up to the
Senate to remove the President from office for private conduct
that does not involve abuse of Presidential power and does not
seriously disrupt the President's capacity to function as Chief
Executive of the United States. And it would be folly to think
that to vindicate the rule of law in the United States the
Senate is obliged to reverse a national election and remove a
President from office before the completion of his term. If
there is sufficient evidence to warrant a criminal prosecution,
this President, when he returns to private life, can be
indicted, prosecuted, and tried and, if convicted, punished
like any other citizen.
I end by making a point that should never be far from our
thoughts as we continue through this trial. There is no moment
in our national public life more sacred than the ritual of
casting one's vote in a Presidential election. It is amazing,
almost miraculous, that so powerful and transforming an event
can occur so quietly in a great and populous nation. The act is
invisible to outside eyes. On one designated day, millions of
Americans go to their local polling places--to schools,
firehouses, police stations, and municipal buildings throughout
the Nation--to cast their vote for President. It is a moment of
high purpose, the only political act that we perform together
as a nation.
And so it is that we believe, short of a declaration of
war, there is nothing more serious for our elected
representatives to contemplate than, through the process of
impeachment, to undo the results of a national election and to
remove the man chosen by the American people to be their
President.
Over the past week, we have heard many speeches about the
Constitution and the rule of law and the many sacrifices that
the American people have made throughout their history to
defend their rights and their freedoms. Surely, among the most
important of those rights and freedoms is the right--freely,
fairly, and openly--to cast one's vote in a Presidential
election and have the results of that election respected and
obeyed.
Can anyone imagine anything more damaging to the
Constitution of the United States than for a Presidential
election to be reversed for conduct that the vast majority of
the American people does not believe warrants the President's
removal from office?
In the entire history of the United States, we have never
been at this juncture before. We have never come so close to
the final act of removing an elected President than we are at
this moment in time.
William Jefferson Clinton was elected freely, fairly, and
openly by the American people to be President. We dare not
reverse that decision without good and just cause. And we dare
not take that step unless the people who spoke agree that such
drastic action is justified. The damage to our political
discourse for years, decades, would be terrible to contemplate.
In the course of this impeachment process, we have also
devoted a good deal of time and attention to a discussion of
precedents that involve the impeachment and removal of Federal
judges. For the President, we have argued that when it comes to
applying constitutional standards for impeachment, judges are
different. We think that the Constitution implicitly recognizes
that distinction.
I would like to change the focus for a moment and look at
the way we think the legislative branch of our Government also
recognizes that distinction. History shows, I think, that it
has been easier for Congress to impeach and remove a Federal
judge from office than to discharge a Member of the House or
Senate, and maybe that is as it should be. When confronted with
misconduct by one of its Members, Congress has rarely been
willing to negate the popular will as expressed in
congressional elections. In truth, the Congress has, for the
most part, simply declined to take that step.
Perhaps rightly so, because of the greater deference paid
to elected, as opposed to appointed, officials or judges.
Perhaps because Presidents and Senators and Representatives are
periodically elected to defined terms, as opposed to life
terms, the Congress has chosen to rely upon the public to work
its will through the electoral system. That deference is
warranted, I submit, and it should be a factor in your
deliberations.
In 210 years of history and throughout 105 Congresses, only
4 Members of the House have ever been expelled by that body. As
for the Senate, 15 Senators--the first in 1797, the remaining
14 during the Civil War.
My point is a simple one. Because of the sanctity of
elections and the regularity of elections, and because of the
heavy burden that must be carried before reversing the will of
the people, decisions to remove elected officeholders have been
and should be, at least in some degree, based on factors that
are different than the ones used for judges appointed for life
and who serve for good behavior. By its own conduct throughout
its own history, Congress seems to agree with this point.
I come from the State of Vermont, and if you have been to
Vermont, you know that wherever you go across that State, from
the smallest squares in the smallest towns to the larger parks,
and what we like to think of as our cities, you come across
monuments celebrating the American Union. One of the things
that Vermont children learn first is that we were and are the
14th State of the Union and that our forebears fought to create
this Nation and to preserve it.
So we in our history have shown that there are two things
that we care about: We care about our American Union and we
care about equal rights for all citizens under the law. And one
of the rights that is most precious to every American is the
right to choose our leaders in free elections. That right, the
equal right to vote with confidence that the outcome will be
respected, is fundamental to our values, to our national unity
and identity.
Ladies and gentlemen of the Senate, you must do your duty
as you see it, as you see the law and facts and the evidence.
But, truly, these articles do not justify the nullification of
the American people's free choice in a national election. I
appeal to you, do not turn your back on those millions of
Americans who cast their votes in the belief that they, and
they alone, decide who will lead this country as President. Do
not throw our politics into the darkness of endless
recrimination. Do not inject a poison of bitter partisanship
into the body politic which, like a virus, can move through our
national bloodstream for years to come with results none can
know or calculate.
Do not let this case and these charges, as flawed and as
unfair as they are, destroy a fundamental underpinning of
American democracy, the right of the people, and no one else,
to select the President of the United States.
William Jefferson Clinton is not guilty of obstruction of
justice. He is not guilty of perjury. He must not be removed.
Thank you very much.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
RECESS
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we recess the proceedings now. We will begin promptly at 5
minutes after 4.
There being no objection, the Senate, at 3:53 p.m.,
recessed until 4:07 p.m.; whereupon, the Senate reassembled
when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice. I believe we are
ready to resume with the presentation of Counsel Cheryl Mills.
The CHIEF JUSTICE. The Chair recognizes Ms. Counsel Mills.
Ms. Counsel MILLS. Mr. Chief Justice, managers from the
House of Representatives, Members of the Senate, good
afternoon. My name is Cheryl Mills, and I am deputy counsel to
the President. I am honored to be here today on behalf of the
President to address you.
Today, incidentally, marks my 6-year anniversary in the
White House. I am very proud to have had the opportunity to
serve our country and this President.
It is a particular honor for me to stand on the Senate
floor today. I am an Army brat. My father served in the Army
for 27 years. I grew up in the military world, where
opportunity was a reality and not just a slogan. The very fact
that the daughter of an Army officer from Richmond, VA, the
very fact that I can represent the President of the United
States on the floor of the Senate of the United States, is
powerful proof that the American dream lives.
I am going to take some time to address two of the
allegations of obstruction of justice against President Clinton
in article II: First, the allegation related to the box of
gifts that Ms. Lewinsky asked Ms. Currie to hold for her;
second, the allegation related to the President's conversation
with Ms. Currie after his deposition in the Jones case.
Tomorrow my colleague, Mr. Kendall, will address the remaining
allegations of obstruction of justice.
Over the course of the House managers' presentation last
week, I confess I was struck by how often they referred to the
significance of the rule of law. House Manager Sensenbrenner,
for example, quoted President Theodore Roosevelt stating, ``No
man is above the law and no man is below it. . . .'' As a
lawyer, as an American, and as an African American, it is a
principle in which I believe to the very core of my being. It
is what many have struggled and died for, the right to be equal
before the law without regard to race or gender or ethnicity,
disability, privilege, or station in life. The rule of law
applies to the weak and the strong, the rich and the poor, the
powerful and the powerless.
If you love the rule of law, you must love it in all of its
applications. You cannot only love it when it provides the
verdict you seek. You must love it when the verdict goes
against you as well. We cannot uphold the rule of law only when
it is consistent with our beliefs. We must uphold it even when
it protects behavior that we don't like or is unattractive or
is not admirable or that might even be hurtful. And we cannot
say we love the rule of law but dismiss arguments that appeal
to the rule of law as legalisms or legal hairsplitting.
I say all of this because not only the facts but the law of
obstruction of justice protects the President. It does not
condemn him. And the managers cannot deny the President the
protection that is provided by the law and still insist that
they are acting to uphold the law. His conduct, while clearly
not attractive, or admirable, is not criminal. That is the rule
of law in this case.
So as my colleagues and I discuss obstruction of justice
against the President, we ask only that the rule of law be
applied equally, neutrally, fairly, not emotionally or
personally or politically. If it is applied equally, the rule
of law exonerates Bill Clinton.
That said, I want to begin where Manager Hutchinson left
off this weekend during a television program. The evidence does
not support conviction of the President on any of the
allegations of obstruction of justice. On the record now before
the Senate, and that which was before the House, Manager
Hutchinson said, ``I don't think you could obtain a conviction
or that I could fairly ask for a conviction.'' We agree. We
agree. There are good reasons for Manager Hutchinson's
judgment. And the most important, the evidence in the record
and the law on the books, does not support the conclusion that
the President obstructed justice.
Now, I know that Manager McCollum begged you in his
presentation to not pay attention to details when the
President's case was put forward. He went so far as to implore
you not to get hung up on some of the details when the
President and his attorneys try to explain this stuff--``The
big picture is what you need to keep in mind, not the
compartmentalization.'' Manager McCollum was telling you, in
effect, not to pay attention to the evidence that exonerates
the President--``Don't pay attention to the details that take
this case out of the realm of activities that are prohibited by
the law.''
But the rule of law depends upon the details because it
depends upon the facts and it depends upon the fairness of the
persons called to judge the facts. I want to walk through the
big picture and I want to walk through the facts.
I first want to discuss the real story, and then I want to
focus on all those inconvenient details, or what Manager Buyer
called those stubborn facts that didn't fit the big picture
that the House managers want you to see.
Manager Barr suggested the fit between the facts and the
law against the President in this case is as precise as the
finely tuned mechanism of a Swiss watch. But when you put the
facts together, they don't quite make out a Swiss watch; in
fact, they might not even make good sausage.
So what is the big picture? The big picture is this: The
President had a relationship with a young woman. His conduct
was inappropriate. But it was not obstruction of justice.
During the course of their relationship, the President and the
young woman pledged not to talk about it with others. That is
not obstruction of justice. The President ended their
relationship before anyone knew about it. He ended it not
because he thought it would place him in legal jeopardy; he
ended it because he knew it was wrong. That is not obstruction
of justice.
The President hoped that no one would find out about his
indiscretion, about his lapse in judgment. That is not
obstruction of justice, either. One day, however, long after he
had ended the relationship, he was asked about it in an
unrelated lawsuit, a lawsuit whose intent, at least as
proclaimed by those who were pursuing it, was to politically
damage him. That was their publicly announced goal. So he knew,
the President knew that his secret would soon be exposed. And
he was right.
It was revealed for public consumption, written large all
over the world against his best efforts to have ended the
relationship and to have put right what he had done wrong. That
is the real big picture. That is the truth. And that is not
obstruction of justice.
So let's talk about the allegation of obstruction of
justice, about the box of gifts that Ms. Currie received from
Ms. Lewinsky. I want to begin by telling you another true
story, the real story of the now famous gifts.
It takes place on December 28, 1997. On that day the
President gave Ms. Lewinsky holiday gifts. During her visit
with the President, Ms. Lewinsky has said that she raised the
subpoena that she had received from the Jones lawyers on the
19th and asked him, what should she do about the gifts. The
President has said he told her, whenever it was that they
discussed it, that she would have to give over whatever she
had. He was not concerned about the gifts because he gives so
many gifts to so many people. Unbeknownst to the President,
however, Ms. Lewinsky had been worrying about what to do with
the gifts ever since she got the subpoena. She was concerned
that the Jones lawyers might even search her apartment so she
wanted to get the gifts out of her home.
After Ms. Lewinsky's visit with the President, Ms. Currie
walked her from the building. Then or later, either in person
or on the phone, Ms. Lewinsky told Ms. Currie that she had a
box of gifts that the President had given her that she wanted
Ms. Currie to hold because people were asking questions. In the
course of that conversation, they discussed other things as
well. Ms. Currie agreed to hold the box of gifts. After their
discussion, Ms. Lewinsky packed up some but not all of the
gifts that the President had given her over time. She kept out
presents of particular sentimental value as well as virtually
all of the gifts he had given her that very day on the 28th.
Ms. Currie went by Ms. Lewinsky's home after leaving work,
picked up the box that had a note on it that said, ``Do not
throw away,'' and she took it home. Ms. Currie did not raise
Ms. Lewinsky's request with the President because she saw
herself as doing a favor for a friend. Ms. Currie had no idea
the gifts were under subpoena.
So Ms. Lewinsky's request hardly struck her as criminal.
This story that I just told you is obviously very different
from the story presented by the House managers. How can I tell
such a story that is so at odds with that which has been
presented by the House managers? The answer lies in the
selective reading of the record by the House managers. But
theirs is not the only version of the facts that needs to be
told. So what details did they downplay or discard or disregard
in their presentation to create allegations of obstruction of
justice?
To be fair, the House managers acknowledged up front that
their case is largely circumstantial. They are right. Let's
walk through the House managers' presentation of the key events
which they gave to you last week. Let's look at exhibit 1 which
is in the packet that has been handed out to you.
First key fact: On December 19, Monica Lewinsky was served
with a subpoena in the Paula Jones case. The subpoena required
that she testify at that deposition in January 1998 and also to
produce each and every gift given to her by President Clinton.
Second event: On December 28, Ms. Lewinsky and the
President met in the Oval Office to exchange Christmas gifts,
at which time they discussed the fact that the lawyers in the
Jones case had subpoenaed all of the President's gifts.
Third key fact: During the conversation on the 28th, Ms.
Lewinsky asked the question whether she should put away outside
her home or give to someone--maybe Betty--the gifts. At that
time, according to Ms. Lewinsky, the President responded, ``Let
me think about it.''
Fourth fact they presented to you: That answer led to
action. Later that day, Ms. Lewinsky got a call at 3:32 p.m.
from Ms. Currie who said, ``I understand you have something to
give me or that the President has said you have something for
me.'' It was the President who initiated the retrieval of the
gifts and the concealment of the evidence.
Fifth event they presented: Without asking any questions,
Ms. Currie picked up the box of gifts from Ms. Lewinsky, drove
to her home, and placed the box under her bed.
That is what the House managers told you last week. Now,
let's go through their story piece by piece. On December 19,
Monica Lewinsky was served with a subpoena in the Jones case.
The subpoena required her to testify at a deposition in January
1998, and also to produce each and every gift given to her by
the President. This statement is factually accurate. It does
not, however, convey the entire state of affairs. Ms. Lewinsky
told the FBI that when she got the subpoena she wanted the
gifts out of her apartment. Why? Because she suspected that
lawyers for Jones would break into her apartment looking for
gifts. She was also concerned that the Jones people might tap
her phone. Therefore, she wanted to put the gifts out of reach
of the Jones lawyers, out of harms way. The managers entirely
disregarded Ms. Lewinsky's own independent motivations for
wanting to move the gifts.
Let's continue. On December 28, 1997, Ms. Lewinsky and the
President met in the Oval Office to exchange Christmas gifts,
at which time they discussed the fact that the lawyers in the
Jones case had subpoenaed all of the gifts from the President
to Ms. Lewinsky. During conversation on December 28, Ms.
Lewinsky asked the President whether she should put away the
gifts out of her house some place, or give them to someone,
maybe Betty. At that time, according to Ms. Lewinsky, the
President said, ``Let me think about it.''
The House managers have consistently described the December
28 meeting exactly this way, as did the majority counsel for
the House Judiciary, as did the Office of Independent Counsel.
It has been said so often that it has become conventional
wisdom. But it is not the whole truth. It is not the full
record. Ms. Lewinsky actually gave 10 renditions of her
conversation with the President. All of them have been outlined
in our chart. Invariably, the one most cited is the one least
favorable to the President. But even in that version, the one
that is least favorable to the President, no one claims he
ordered, suggested, or even hinted that anyone obstruct
justice. At most, the President says, ``Let me think about
it.'' That is not obstruction of justice.
But what about the nine other versions? Some of the other
versions which I have never heard offered by the House
managers, versions that maybe you, too, have never heard, are
the ones that put the lie to the obstruction of justice
elevation.
Let's look at exhibit 2 which is in your material. You may
have never heard, for example, this version of their
conversation. This is Ms. Lewinsky speaking:
It was December 28th and I was there to get my Christmas
gifts from him . . . and we spent maybe about 5 minutes or so,
not very long, talking about the case. And I said to him,
``Well, do you think'' . . . and I don't think I said get rid
of, but I said, ``Do you think I should put away or maybe give
to Betty or give someone the gifts?'' And he--I don't remember
his response. It was something like, ``I don't know,'' or
``hmm'' or there was really no response.
You also may not have heard this version. This is a juror
speaking, a grand juror speaking to Ms. Lewinsky:
The Juror: Now, did you bring up Betty's name or did the
President bring up Betty's name?
And this is at the meeting on the 28th:
Ms. Lewinsky: I think I brought it up. The President
wouldn't have brought up Betty's name because he really
didn't--he really didn't discuss it . . . .
And you probably have not heard this version:
Lewinsky advised that Clinton was sitting in a rocking
chair in the study. Lewinsky asked Clinton what she should do
with the gifts Clinton had given her and he either did not
respond or responded ``I don't know''. Lewinsky is not sure
exactly what was said, but she is certain that whatever Clinton
said, she had no clear image in her mind of what to do next.
Why haven't we heard these versions? Because they weaken an
already fragile circumstantial case. If Ms. Lewinsky says that
the President doesn't respond at all, then there is absolutely
no evidence for the House managers' obstruction of justice
theory, even under their version of events. So these versions
get disregarded to ensure that the House managers' big picture
doesn't get cluttered by all those details. It is those facts,
those stubborn facts, that just don't fit.
But the most significant detail the managers disregard
because it doesn't fit is the President's testimony. The
President testified that he told Ms. Lewinsky that she had to
give the Jones lawyers whatever gifts she had. Why? As the
House managers predicted we would ask, because it is a question
that begs to be asked, why would the President give Ms.
Lewinsky gifts if he wanted her to give them right back? The
only real explanation is he truly was, as he testified,
unconcerned about the gifts. The House managers want you to
believe that this gift giving was a show of confidence; that he
knew Ms. Lewinsky would conceal them. But then why, under their
theory, ask Ms. Currie to go pick them up? Why not know that
Ms. Lewinsky is just going to conceal them? Better still, why
not just show her the gifts and tell her to come by after the
subpoena date has passed?
It simply doesn't make sense. The President's actions
entirely undermine the House managers' theory of obstruction of
justice.
But let's continue with their version of events. That
answer, the ``Let-me-think-about-it'' answer, that answer led
to action. Later that day, Ms. Lewinsky got a call at 3:32 p.m.
from Ms. Currie who said, ``I understand you have something to
give me or the President said you have something to give me.''
It was the President who initiated the retrieval of the gifts
and the concealment of the evidence.
Here is where the House managers have dramatically
shortchanged the truth because the whole truth demands that Ms.
Currie's testimony be presented fairly.
In telling their story, the managers do concede that there
is a conflict in the testimony between Ms. Lewinsky and Ms.
Currie, but they strive mightily to get you to disregard Ms.
Currie's testimony by telling you that her memory on the issue
of how she came to pick up the gifts was ``fuzzy''--fuzzy. In
particular, Manager Hutchinson told you:
I will concede there is a conflict in the testimony on this
point with Ms. Currie. Ms. Currie, in her grand jury testimony,
had a fuzzy memory, a little different recollection. She
testified that, the best she can remember, Ms. Lewinsky called
her, but when she was asked further, she said that maybe Ms.
Lewinsky's memory is better than hers on that issue.
That is what the House managers want you to believe about
Ms. Currie. That is not playing fair by Ms. Currie. It is not
playing fair by the facts. Why? Because Ms. Currie was asked
about who initiated the gift pick-up five times. Her answer
each time was unequivocal--5 times. From the first FBI
interview just days after the story broke in the media, to her
last grand jury appearance, Ms. Currie repeatedly and
unwaveringly testified that it was Ms. Lewinsky who contacted
her about the gifts.
Her memory on this issue is clear. What does she say? Let's
look at exhibit 3, the first time she is asked:
Lewinsky called Currie and advised she had returned all
gifts Clinton had given to Lewinsky, as there was talk going
around about the gifts.
The second time:
Monica said she was getting concerned and she wanted to
give me the stuff the President had given her, or give me a box
of stuff. It was a box of stuff.
Third time, and this was a prosecutor asking Ms. Currie the
question:
Just tell us for a moment how this issue first arose, and
what you did about it, and what Ms. Lewinsky told you.
Ms. Currie: The best I remember, it first arose with
conversation. I don't know if it was over the phone or in
person; I don't know. She asked me if I would pick up a box.
She said Isikoff had been inquiring about the gifts.
The fourth time:
The best I remember, she said she wanted me to hold these
gifts--hold this--I'm sure she said gifts, a box of gifts--I
don't remember--because people were asking questions, and I
said fine.
The fifth time:
The best I remember is, Monica called me and asked me if
she can give me some gifts, if I would pick up some gifts for
her.
The last time, the fifth time, when a grand juror
completely misstated Ms. Currie's testimony regarding how the
gift exchange was initiated by suggesting that the President
had directed her to pick up the gifts, Ms. Currie was quick to
correct the juror:
Question. Ms. Currie, I want to come back for a second to the box
of gifts and how they came to be in your possession. As I recall your
earlier testimony the other day, you testified that the President asked
you to telephone Ms. Lewinsky, is that correct?
Answer. Pardon? The President asked me to telephone Ms. Lewinsky?
Juror. Is that correct?
Ms. Currie. About?
Juror. About the box of gifts. I am trying to recall and understand
exactly how the box of gifts came to be in your possession.
Ms. Currie. I don't recall the President asking me to call about a
box of gifts.
Juror. How did you come to be in possession of the box of gifts?
Ms. Currie. The best I remember, Ms. Lewinsky called me and asked
me if she can give me the gifts--if I would pick up some gifts for her.
The record reflects that Ms. Currie's testimony on this
issue was clear--five times--every time she was asked.
What, then, are the managers talking about when they say
that Ms. Currie concedes that Ms. Lewinsky might have a better
memory than herself on this issue? They are talking about
something a little different; that was whether she, Ms. Currie,
had told the President that she had picked up the box of gifts
from Ms. Lewinsky. Let's put it in context. After being asked
the same question for the fourth time and reiterating for the
fourth time that Ms. Lewinsky contacted her about the gifts,
the prosecutor asked Ms. Currie:
Well, what if Ms. Lewinsky said that Ms. Currie spoke to
the President about receiving the gifts from Ms. Lewinsky?
Ms. Currie responds:
Then she may remember better than I. I don't remember.
Not once did Ms. Currie equivocate on the central fact Ms.
Lewinsky asked her to retrieve the gifts. The President
testified, consistent with Ms. Currie's testimony, that he
never asked Ms. Currie to retrieve the gifts from Ms. Lewinsky.
So why is Ms. Currie's testimony distorted and discounted by
the House managers?
They are asking you to make one of the most awesome
decisions the Constitution contemplates. They owe you, they owe
the President, they owe the Constitution, and they owe Betty
Currie an accurate presentation of the facts.
But what about that supposedly corroborating cell phone
call from Betty Currie to Monica Lewinsky on December 28? The
managers highlighted this call, which they claim is the call in
which Ms. Currie told Ms. Lewinsky that she understood she had
something for her, the gifts. This, they say, is the linchpin
that closes the deal on their version of the facts.
What the managers downplay, as Mr. Ruff discussed
yesterday, is the fact that this call to arrange the pickup of
the gifts comes after the time Ms. Lewinsky repeatedly
testified that the gifts were picked up by Ms. Currie. In
citing the cell phone record as corroboration, they also
disregard Ms. Currie's testimony that she picked up the gifts
leaving from work on her way home; that would have been from
Washington to Arlington. That is inconsistent with the call
from Arlington.
Most significantly, the managers purposely avoided telling
you about the length of the call. As Mr. Ruff pointed out
yesterday, the call is for 1 minute, or less. According to Ms.
Lewinsky's own testimony, when she spoke to Ms. Currie to
arrange the gift pickup, they talked about other matters, as
well as the box. They had a conversation. That is a lot of
talk: I have a box. When can you come pick it up? Where do you
want me to meet you? And other chitchat. That is a lot of talk
for a call that lasts 1 minute, or less. It is all but
inconceivable that all this took place in the call. Since Ms.
Currie placed a call to Ms. Lewinsky, though, the House
managers want you to believe that.
What next? The House managers told you, without asking any
questions, Ms. Currie picked up the box of gifts from Ms.
Lewinsky, drove to her home, which, incidentally, is
inconsistent with their theory because she is going in the
wrong direction. She is supposed to be going to the hospital--
if she picked up the gifts, on their theory--and she placed the
box under her bed. Then they posit this question: Why would Ms.
Currie pick up the gifts from Ms. Lewinsky? Why on earth would
she do such a thing? Their answer: She must have been ordered
to pick up the gifts by the President. They conclude, without
any testimonial report, that there would be no reason for Betty
Currie, out of the blue, to retrieve the gifts, unless
instructed to do so by the President. Why else would she do it?
Well, the record before you offers the answer. As Ms.
Currie told the FBI during her first interview in January of
1998, Ms. Lewinsky was a friend. She had been helpful and
supportive when she was dealing with some very painful personal
tragedies. Ms. Currie enjoyed what she saw as a motherly
relationship with Ms. Lewinsky. They would often talk about
each other's families, about their own activities, and other
chitchat. Why does she agree to hold the box of gifts for Ms.
Lewinsky? Because she is a friend. And that is not obstruction
of justice.
Now, think about the story as I told it to you, and about
the different story the managers presented. Ms. Lewinsky was
concerned about the gifts after receiving a subpoena from the
Jones lawyers. She was worried they might search her apartment
and she wanted to get the gifts out of her home. She met with
the President, and what does he do? He gives her more gifts--
more gifts.
When she asked what to do about the gifts, at most she
says, ``Let me think about it.'' Those are the words that
Lewinsky has acknowledged on several occasions, that he may
have said nothing.
Ms. Lewinsky is still concerned about the gifts. She
decides to put them away, keeping the gifts that have
sentimental value, and giving to her lawyer the gifts she
thinks the Jones lawyers are looking for, and giving to Ms.
Currie those items that she really would like back but that she
can live without. She tells Ms. Currie that she has some gifts
from the President that she wants her to hold because there is
talk going around about the gifts. Ms. Currie picks them up
after work on her way home.
This story is consistent with the President's lack of
concern about the gifts. The managers have tried to deflect the
inexplicable contradiction created by their own theory. They
want you to believe the President would really give Ms.
Lewinsky gifts only to take them back on the very same day. Of
course he wouldn't. No one would.
The only explanation they can conjure is torture: The
President gave her gifts which he intended to take back that
same afternoon to show his confidence that she would conceal
the relationship. The facts clearly do not support their
version of events. To believe the managers' version of events,
you must not only disbelieve the President, you must also
disbelieve Ms. Currie.
Ms. Currie has said that the President did not ask her to
pick up the gifts. Ms. Currie has said that Ms. Lewinsky asked
her to pick up the gifts. The managers have downplayed Ms.
Currie's credibility in this incident. They have urged you to
think of her as acting as ``a loyal secretary to the
President.''
Of course she is loyal. But it is, may I say, an insult to
Betty Currie and to millions of other loyal Americans to
suggest that loyalty breeds dishonesty. If Ms. Currie was
dishonest, why would she have told the counsel about the
conversation between the President and her that the managers
have recounted as being so damaging? Why would she have said
anything at all about that conversation? Why? Because she is
honest. And loyalty and honesty are not mutually exclusive.
Betty Currie is a loyal person, and Betty Currie is an honest
person.
These are the facts. That is not obstruction of justice.
I believe I can best sum up by using the words of Manager
Buyer who quoted President John Adams. ``Facts are stubborn
things. Whatever may be our issues, or inclinations, or the
dictates of our passions, they cannot alter the state of the
facts and the evidence.''
Those stubborn facts. Manager Buyer went on to say, ``I
believe John Adams was right.'' Facts and evidence. Facts are
stubborn things. You can color the facts, like calling Ms.
Currie's memory fuzzy. You can shade the facts by not telling
you the length of that supposed corroborating phone call. You
can misrepresent the facts by giving only 1 of 10 versions of
Ms. Lewinsky's testimony about the President's response to her
question about the gifts. You can hide the facts, like not
telling you of Ms. Lewinsky's personal motivation for wanting
the gifts. But the truthful facts are stubborn; they won't go
away. Like the telltale heart, they keep pounding. And they
keep coming. They won't go away. Those stubborn, stubborn
facts. They show that this was not obstruction of justice.
I now will talk about the President's conversation with Ms.
Currie on January 18. It is not difficult to understand these
events if you have lived a life in which you are the subject of
extraordinary media attention and extraordinary media scrutiny.
Most American lives are not like that. Our jobs and our
personal lives are not usually the subject for daily media
consumption. As Senators, you obviously know well what that
life is like.
On January 18, the President talked to Ms. Currie about the
Jones deposition and in particular about his surprise at some
of the questions the Jones lawyers had asked about Ms.
Lewinsky. In the course of their conversation, the President
asked Ms. Currie a series of questions and made some statements
about his relationship with Ms. Lewinsky, all of which seemed
to seek her concurrence, or reaction, or her input.
The managers' theory is that the President, by his
comments, corruptly tried to influence Ms. Currie's potential
testimony in the Jones case in violation of the obstruction of
justice law. They acknowledge that the President knew nothing
about the independent counsel's investigation. So they have
focused on the Jones case as the place to lodge their
obstruction of justice allegation. Ms. Currie was not scheduled
to be a witness in that case. And, as you will see, the
President had other things on his mind.
Before I go into the facts surrounding these conversations,
I want to first focus briefly on the law, as the managers did
in their presentation. There are two relevant obstruction of
justice statutes: 18 U.S.C. 1503, which is the general
obstruction of justice statute; and 18 U.S.C. 1512, the more
specific statute which prohibits witness tampering.
There are differences between these two statutes, but for
our purpose their essential elements are similar. Both require
the Government to prove that the person being accused, one,
acted knowingly; two, with specific intent; three, to corruptly
affect and influence, in 1503, and corruptly persuade, in 1512,
either the due administration of justice, under 1503, or the
testimony of a person in an official proceeding, under 1512, to
try to persuade the testimony of a person in an official
proceeding. For conviction, each and every element must be
proven beyond a reasonable doubt. If the prosecution fails to
prove even one element, the jury is obliged to acquit. In this
case, none of the elements is present.
First, a little more about the law. You have to do more
than make false statements to someone who might or might not
testify in a judicial proceeding to obstruct justice. In United
States v. Aguilar, an opinion by Chief Justice Rehnquist and
quoted by the House managers, the Supreme Court addressed the
Government's requirement and showed that the defendant knew his
actions were likely to affect a judicial proceeding. There, the
U.S. district court judge was accused and convicted of lying to
an FBI agent about a conversation with another judge and about
what he said about his knowledge of some wiretapping. The
Supreme Court reversed the conviction under 1502, the general
obstruction of justice statute, holding that the facts were
insufficient to make the case. They said in this material:
We do not believe that uttering false statements to an
investigative agent--and that seems to be all that was proved
here--who might or might not testify before a grand jury is
sufficient to make out a violation of the catch-all provision
of 1503. . . . But what use will be made of false testimony
given to an investigative agent who has not been subpoenaed or
otherwise directed to appear before the grand jury is far more
speculative. We think it cannot be said to have the ``natural
and probable effect'' of interfering with the due
administration of justice.
In responding to the defendant's criticism of the Court's
holding, Mr. Chief Justice Rehnquist wrote, under the defense
theory:
A man could be found guilty of violating 1503 if he knew of
a pending investigation and lied to his wife about his
whereabouts at the time of the crime, thinking that an FBI
agent might interview her and that she might in turn be
influencing her statements to that agent about her husband's
false accounts of where he was.
The intent to obstruct justice is indeed present, but the
man's culpability is a good deal less clear from the statute
than we would usually require in order to impose criminal
liability.
So I want to begin by focusing on the ``corruptly
persuade'' elements of witness tampering. What does it mean to
corruptly persuade? The term is vague, and the legislative
history on the specific point is not very clear. We do know it
means more than harassing, which is described as badgering or
pestering conduct, since 1512 makes intentional harassment a
misdemeanor a lesser offense of ``corruptly persuade,'' which
is a felony. The U.S. Attorneys' Manual gives some guidance. A
prosecution under 1512 would require the Government to prove
beyond a reasonable doubt, one, an effort to threaten, force or
intimidate another person and; two, an intent to influence the
person's testimony. Thus, ``corruptly persuade'' for career
prosecutors requires some element of threat or intimidation or
pressure.
Keeping that overview in mind, let's look at the facts. On
January 17, 1998, the President called Ms. Currie after his
deposition and asked her to meet with him the following day. On
January 18, the President and Ms. Currie met, and the President
told her about some of those surprising questions he had been
asked in his deposition about Ms. Lewinsky. In the course of
their conversation, according to Ms. Currie, the President
posed a series of questions and made statements including: 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? And she wanted to have
sex with me, and I can't do that.
Our analysis of this issue could stop here. There is no
case for obstruction of justice. Why? There is no evidence
whatsoever of any kind of threat or intimidation. And as we
discussed, the U.S. Attorneys' Manual indicates that without a
threat or intimidation, there is no corrupt influence. Without
corrupt influence, there is no obstruction of justice. But the
evidence reveals much more. Not only does the record lack any
evidence of threat or intimidation, the record specifically
contains Ms. Currie's undisputed testimony which exonerates the
President of this charge. This is Ms. Currie's testimony and is
the fourth exhibit in the materials.
Question to Ms. Currie:
Now, back again to the four statements that you testified
the President made to you that were presented as statements,
did you feel you were pressured when he told you those
statements?
None whatsoever.
Question: What did you think, or what was going through
your mind about what he was doing?
Ms. Currie:
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.
Question: That was your impression, that he wanted you to
say--because he would end each of the statements with
``Right?,'' with a question.
Ms. Currie:
I do not remember that he wanted me to say ``Right.'' He
would say, ``Right?'' and I could have said, ``Wrong.''
Question: But he would end each of these questions with a
``Right?'' and you could either say whether it was true or not
true.
Correct.
Did you feel any pressure to agree with your boss?
None.
The evidence on this issue is clear. There was no effort to
intimidate or pressure Ms. Currie, and she testified that she
did not feel pressured. Betty Currie's testimony unequivocally
establishes that the managers' case lacks any element of threat
or intimidation. There is no evidence, direct or
circumstantial, that refutes this testimony. This is not
obstruction of justice.
But let's not stop there. Let's look at the intent element
of the obstruction of justice laws--in other words, whether the
President had the intent to influence Ms. Currie's supposed
testimony, or potential testimony.
In an attempt to satisfy this element of the law, the
managers overreached in their presentation to create the
appearance that the President had the necessary specific
intent. They argue that, based upon the way he answered the
questions in the Jones deposition, he purposely referred to Ms.
Currie in the hopes that the Jones lawyers would call her as a
corroborating witness. Therefore, according to their theory, he
had the specific intent.
The facts belie their overreaching. The House managers
suggested to you that the President increased the likelihood
that Ms. Currie would be called as a witness by challenging the
plaintiff's attorney to question Ms. Currie. A review of the
transcript, however, shows that the President's few references
to Ms. Currie were neither forced nor needlessly interposed.
They were natural, appropriate; they were responsive. Indeed,
the only occasion when he suggested the Jones lawyers speak to
Ms. Currie is when they asked if it was typical for Ms. Currie
to be in the White House after midnight. He understandably
said, ``You have to ask her.'' Hardly a challenge. It is a
reasonable response to an inquiry about someone else's
activities.
The managers' conjecture about the President's state of
mind, however, fails on an even more basic level. If you
believe the managers' theory, if you believe that the President
went to great lengths to hide his relationship with Ms.
Lewinsky, then why on Earth would he want Ms. Currie to be a
witness in the Jones case? If there was one person who knew the
extent of his contact with Ms. Lewinsky, it was Ms. Currie.
While she did not know the nature of his relationship with Ms.
Lewinsky, Ms. Currie did know and would have testified to Ms.
Lewinsky's visits in 1997, the notes and messages that Ms.
Lewinsky sent the President, the gifts that Ms. Lewinsky sent
the President, and the President's support of the efforts to
get Ms. Lewinsky a job. With just that information, it would
have only been a matter of time before the Jones lawyers
discovered the relationship--not that they needed Ms. Currie's
testimony; they didn't need it for any of this. Ms. Tripp was
already on the December 5, 1997, witness list, and she was
already scheduled for a deposition.
So why would the President want her to testify? The answer
is simple. He didn't. The President was not thinking about Ms.
Currie becoming a witness in the Jones case. Indeed, she is the
last person the President would have wanted the Jones lawyers
to question. And even if the Jones lawyers had wanted to
question Ms. Currie, it is highly unlikely they would have been
allowed to do so, given the posture of the case at that time.
Judge Wright ordered the parties in August of 1997 to
exchange names and addresses of all witnesses no later than
December 5, 1997. Ms. Currie was not on their final witness
list. Moreover, the cutoff date for all discovery was January
30. By the time the President's deposition was over, it was
really too late to call Ms. Currie as a witness.
Finally, you need to remember that in the context of the
Jones case Ms. Currie was, at best, a peripheral witness on a
collateral matter that the court ultimately determined was not
essential to the core issues in the case. She had only
knowledge of a small aspect of a much larger case--all the more
reason not to view her as a potential witness.
The President was not thinking about Ms. Currie becoming a
witness in the Jones case. So what was the President thinking?
The President explained to the grand jury why he spoke to Ms.
Currie after the deposition. It had nothing to do with Ms.
Currie being a potential witness. That was not his concern. The
President was concerned that his secret was going to be exposed
and the media would relentlessly inquire until the entire story
and every shameful detail was public. The President's concern
was heightened by an Internet report that morning that he spoke
to Betty which alluded to Ms. Lewinsky and to Ms. Currie and to
issues that the Jones lawyers had raised. The President was
understandably concerned about media inquiries, a concern
everyone who lives and serves in the public eye likely can
understand.
In trying to prepare for what he saw as the inevitable
media attention, he talked to Ms. Currie to see what her
perceptions were and what she recalled. He talked to her to see
what she knew.
Remember, some of the questions that the Jones lawyer asked
the President were so off base. For example, they asked him
about visits from Ms. Lewinsky between midnight and 6 a.m.
where Ms. Currie supposedly cleared her in. The President
wanted to know whether or not Ms. Currie agreed with this
perception or whether she had a different view, whether she
agreed that Ms. Lewinsky was cleared in when he was present or
had there been other occasions that he didn't know about. He
also wanted to assess Ms. Currie's perception of the
relationship. He knew the first person who would be questioned
about media accounts, particularly given that she was in the
Internet report, was going to be Ms. Currie.
The House managers did the President a disservice in
suggesting in the end that his five pages of testimony about
why he spoke to Ms. Currie ultimately amounts to a four-word
sound bite to refresh his recollection. He obviously said a lot
more.
Why did they say that? Because they needed to establish
intent, and the testimony and the facts do not show intent.
That is the truth. That is all of the facts.
The President's intent was never to obstruct justice in the
Jones case. It was to manage a looming media firestorm, which
he correctly foresaw. As the President told the grand jury, ``I
was trying to get the facts and trying to think of the best
defense we could construct in the face of what I thought was
going to be a media onslaught.''
He was thinking about the media. That is the big picture.
That is not obstruction of justice.
In the end, of course, you must make your own judgments
about whether the managers have made a case for convicting the
President of obstructing justice on either of these
allegations. We believe they have not, because the facts, those
stubborn facts, don't support the allegations. Neither does the
rule of law. We are not alone in that conclusion.
We want to share with you some of the remarks from a
bipartisan panel of prosecutors who spoke to the House
Judiciary panel, some of which you saw earlier with Mr. Craig.
I have taken a very brief clip of their testimony that dealt
with allegations of obstruction of justice against the
President for, as you will see, then Representative and now
Senator Schumer focused in on one of the two allegations that I
address today.
[Text of videotape presentation:]
Mr. Sullivan. Mrs. Currie testified that she did not feel
that the president came and asked her some questions in a
leading fashion--``Was this right? Is this right? Is this
right?''--after his deposition was taken in the Jones case. And
she testified that she did not feel pressured to agree with him
and that she believed his statements were correct----
Rep. Schumer. Correct, right.
Mr. Sullivan [continuing]. And agreed with him. He--the quote is,
``He would say, `Right,' and I could have said, `Wrong,' '' Now that is
not a case for obstruction of justice. It is very common for lawyers,
before the witness gets on the stand, to say, ``Now you're going to say
this, you're going to say this, you're going to say this.''
Rep. Schumer. Right.
Mr. Sullivan. Now it doesn't make a difference if you've got two
participants to an event and you try to nail it down, so to say.
Rep. Schumer. Do all of you agree with that, with the Currie--the
Currie----
Mr. Weld. Yeah.
Rep. Schumer. And on the other two, the Lewinsky parts of this, is
there----
Mr. Davis. I think to some----
Rep. Schumer. I mean, I don't even understand how they could--how
Starr could think that he would have a case, not with the president of
the United States, but with anybody here, when it seems so natural and
so obvious that there would be an overriding desire not to have this
public and to have everybody--have the two of them coordinate their
stories--that is, the president and Miss Lewinsky--if there were not
the faintest scintilla of any legal proceeding coming about. It just
strikes me as an overwhelming stretch. Am I wrong to characterize it
that way? You gentlemen all have greater experience than I do.
Mr. Davis. I think you're right. And also, the problem a prosecutor
would face would be that in these cases, there is relationship between
these people unrelated to the existence of the Paula Jones case--the
relationship. And that's the motivation----
Rep. Schumer. Correct.
And Mr. Weld, do you disagree with--do you agree with that?
Rep. Sensenbrenner. The gentleman's time--the gentleman's time----
Rep. Schumer. Could I just ask Mr. Weld for a yes or no----
Rep. Sensenbrenner. I'm sorry, Mr. Schumer. Mr. Schumer----
Rep. Schumer [continuing]. For a yes or no answer to that?
Can you answer that yes or no, Governor?
Mr. Weld. I think it's a little thin, Mr. Congressman.
Rep. Schumer. Thank you.
Mr. Noble. Again, it's a specific-intent crime, and the question
is, what was the President thinking when he said this? We can look at
his words and try and analyze his words. But Ms. Currie says that she
didn't believe he was trying to influence her and that if she'd said
something different from him, if she believed something different from
him, she would have felt free to say it. So for that reason, I believe,
you just don't have the specific intent necessary to prove obstruction
of justice with regard to the comment that you just asked me.
Manager Hutchinson is keeping very good company. He, like
the other prosecutors, does not believe the record before you
establishes obstruction of justice. We agree.
Before I close, I do want to take a moment to address a
theme that the House managers sounded throughout their
presentation last week--civil rights. They suggested that by
not removing the President from office, the entire house of
civil rights might well fall. While acknowledging that the
President is a good advocate for civil rights, they suggested
that they had grave concerns because of the President's conduct
in the Paula Jones case.
Some managers suggested that we all should be concerned
should the Senate fail to convict the President, because it
would send a message that our civil rights laws and our sexual
harassment laws are unimportant.
I can't let their comments go unchallenged. I speak as but
one woman, but I know I speak for others as well. I know I
speak for the President.
Bill Clinton's grandfather owned a store. His store catered
primarily to African Americans. Apparently, his grandfather was
one of only four white people in town who would do business
with African Americans. He taught his grandson that the African
Americans who came into his store were good people and they
worked hard and they deserved a better deal in life.
The President has taken his grandfather's teachings to
heart, and he has worked every day to give all of us a better
deal, an equal deal.
I am not worried about the future of civil rights. I am not
worried because Ms. Jones had her day in court and Judge Wright
determined that all of the matters we are discussing here today
were not material to her case and ultimately decided that Ms.
Jones, based on the facts and the law in that case, did not
have a case against the President.
I am not worried, because we have had imperfect leaders in
the past and will have imperfect leaders in the future, but
their imperfections did not roll back, nor did they stop, the
march for civil rights and equal opportunity for all of our
citizens.
Thomas Jefferson, Frederick Douglass, Abraham Lincoln, John
F. Kennedy, Martin Luther King, Jr.--we revere these men. We
should. But they were not perfect men. They made human errors,
but they struggled to do humanity good. I am not worried about
civil rights because this President's record on civil rights,
on women's rights, on all of our rights is unimpeachable.
Ladies and gentlemen of the Senate, you have an enormous
decision to make. And in truth, there is little more I can do
to lighten that burden. But I can do this: I can assure you
that your decision to follow the facts and the law and the
Constitution and acquit this President will not shake the
foundation of the house of civil rights. The house of civil
rights is strong because its foundation is strong.
And with all due respect, the foundation of the house of
civil rights was never at the core of the Jones case. It was
never at the heart of the Jones case. The foundation of the
house of civil rights is in the voices of all the great civil
rights leaders and the soul of every person who heard them. It
is in the hands of every person who folded a leaflet for
change. And it is in the courage of every person who changed.
It is here in the Senate where men and women of courage and
conviction stood for progress, where Senators--some of them
still in this chamber; some of them who lost their careers--
looked to the Constitution, listened to their conscience, and
then did the right thing.
The foundation of the house of civil rights is in all of us
who gathered up our will to raise it up and keep on building. I
stand here before you today because others before me decided to
take a stand, or as one of my law professors so eloquently
says, ``because someone claimed my opportunities for me, by
fighting for my right to have the education I have, by fighting
for my right to seek the employment I choose, by fighting for
my right to be a lawyer,'' by sitting in and carrying signs and
walking on long marches, riding freedom rides and putting their
bodies on the line for civil rights.
I stand here before you today because America decided that
the way things were was not how they were going to be. We, the
people, decided that we all deserved a better deal. I stand
here before you today because President Bill Clinton believed I
could stand here for him.
Your decision whether to remove President Clinton from
office, based on the articles of impeachment, I know, will be
based on the law and the facts and the Constitution. It would
be wrong to convict him on this record. You should acquit him
on this record. And you must not let imagined harms to the
house of civil rights persuade you otherwise. The President did
not obstruct justice. The President did not commit perjury. The
President must not be removed from office.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Leader's Lecture Series
Mr. LOTT. Once again, I invite all Senators to attend the
Leader's Lecture Series this evening at 6 p.m. in the Old
Senate Chamber. I have already announced former President
George Bush will be the speaker.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the Senate now stand in adjournment under the previous order.
There being no objection, the Senate, at 5:14 p.m. sitting
as a Court of Impeachment, adjourned until Thursday, January
21, 1999, at 1 p.m.
------
Thursday, January 21, 1999
[From the Congressional Record]
The Senate met at 1:01 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Dear God, You know what we need before we ask You but, in
the asking, our minds and hearts are prepared to receive Your
answer. In this impeachment trial, we have learned again that
really listening over a prolonged period of time is hard work.
Often it is difficult to hear what is being said because of
differing convictions. Dissonance causes discordant static.
Sometimes our preconceptions about what we think will be said
keep us from hearing what actually is said. Thank You for the
commitment of the men and women of this Senate to serve You and
our Nation by accepting the demanding responsibility of
listening for and evaluating truth. Grant them renewed energy,
sensitive audio nerves, and discerning minds. For Your glory
and the good of America. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Order of Procedure
Mr. LOTT. Today, we will conclude the presentation of the
White House counsel. I understand that the presentation will
last approximately 4\1/2\ hours. As we have done previously, we
will take periodic breaks throughout the proceedings, with the
first one coming in approximately 1 hour and 15 minutes. I
believe that will be approximately midway in the presentation
of Mr. Counsel Kendall. Then we would probably take at least
one more break so that the Senators and Chief Justice would
have a chance to stretch and so we will have some logical break
in the presentations. As a reminder, we will convene tomorrow
at 1 p.m. to resume consideration of the articles.
At this point, I ask the indulgence of the Chief Justice
and all Senators as we take up some routine matters before we
resume consideration of the articles. These have been
precleared.
------
UNANIMOUS-CONSENT AGREEMENT
Mr. LOTT. I ask unanimous consent, notwithstanding the
consideration of the articles, that it be in order at this time
to conduct several routine legislative matters.
The CHIEF JUSTICE. Without objection, it is so ordered.
------
MEASURES READ FOR THE FIRST TIME--S. 269, 270, AND 271
Mr. LOTT. Mr. Chief Justice, there are three bills at the
desk. I ask unanimous consent the bills be considered read the
first time. I further ask consent the bills be read a second
time en bloc, and I object to my own request.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. The bills will be read a second time on the next
legislative date, as I understand it.
The CHIEF JUSTICE. The leader is correct.
The bills read the first time are as follows:
S. 269, a bill to state the policy of the United States
regarding the deployment of a missile defense system capable of
defending the territory of the United States against limited
ballistic missile attack;
S. 270, a bill to improve pay and retirement equity for
members of the Armed Forces; and for other purposes;
S. 271, a bill to provide for education flexibility
partnerships.
------
amending paragraph 1(m)(1) of rule xxv
Mr. LOTT. I ask unanimous consent that the Senate proceed
to the immediate consideration of S. Res. 28 which changes the
words ``Handicapped individuals'' to ``Individuals with
disabilities'' in Rule XXV.
I further ask consent the resolution be agreed to and the
motion to reconsider be laid upon the table.
The CHIEF JUSTICE. Is there objection?
Without objection, it is so ordered.
The resolution (S. Res. 28) was agreed to, as follows:
S. Res. 28
Resolved, That paragraph 1(m)(1) of Rule XXV is amended as
follows:
Strike ``Committee on Labor and Human Resources'' and
insert in lieu thereof ``Committee on Health, Education, Labor,
and Pensions''.
Strike ``Handicapped individuals'' and insert in lieu
thereof ``Individuals with disabilities''.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
Mr. LOTT. I believe we are prepared for the concluding
presentation by the White House counsel.
I yield the floor, Mr. Chief Justice.
THE JOURNAL
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date. Under the
provisions of Senate Resolution 16, the counsel for the
President have 18 hours and 9 minutes remaining to make their
presentation of their case.
The Chair now recognizes Mr. Counsel Kendall.
Mr. Counsel KENDALL. Mr. Chief Justice, Members of the
Senate, managers from the House of Representatives, good
afternoon. I am David Kendall of the law firm of Williams &
Connolly. Since 1993 it has been my privilege to represent the
President in the tortuous and meandering Whitewater
investigation which, approximately a year ago, was transformed
in a remarkable way into the Lewinsky investigation.
I want to address this afternoon certain allegations of
obstruction of justice contained in article II of the articles
of impeachment. Mr. Manager Sensenbrenner remarked that no
prior article allegation of obstruction of justice has ever
reached this Chamber. So this is a case of first impression.
Deputy Counsel Cheryl Mills yesterday addressed the parts
of article II pertaining to gifts and the President's
conversations with Ms. Currie. I will cover, this afternoon,
the remaining five subparts of article II. The evidence plainly
shows that the President did not obstruct justice in any way
and there is nothing in this article which would warrant his
removal from office.
As I begin, I want to thank you for your open minds, for
your attention, for your withholding judgment until you have
heard all of our evidentiary presentation. There are a lot of
myths about what the evidence is in this case. Some of them are
misunderstandings based upon erroneous media reports, some
spring from confusion in the evidence itself, and some are the
result of concerted partisan distortion.
I want to talk to you this afternoon about what the record
is and what the evidence actually shows. I apologize to you in
advance if the process is tedious. What I think I have to
request from you is your common sense and some uncommon
patience. But the evidence--those stubborn facts--is critically
important to inform your ultimate vote on these articles. I
will do my best to avoid repetition and lawyer talk--although I
am a lawyer.
In our trial memorandum, we gave you the citations to the
evidence I am going to be referencing, so you can check the
facts there. I want to say that I welcome your scrutiny.
My presentation this morning consists of six parts. I would
like, if I could, to give you those as milestones. I want to
make some remarks generally about evidence, and then I want to
consider the specific evidence which is relevant to each of the
five subparts I am going to be talking about. I am going to do
them out of numerical order but what I hope is in a logical
order. I am going to cover article 1 first, then article 2,
then article 5, article 7, and article 4. Ms. Mills, yesterday,
has already covered 3 and 6.
First of all, a few words about evidence. We have heard a
great deal about the rule of law in the various presentations
of the House managers. But what is at issue here--and I think
Mr. Manager Graham made this point very well--it is a solemn
obligation, which is constitutionally committed to this body.
Your decision, whatever it is, is not going to have some kind
of domino effect that ineluctably leads to that midnight knock
at the door. The rule of law is more than rhetoric. It means
that in proceedings like these, where important rights are
being adjudicated, that evidence matters, fairness matters,
rules of procedural regularity matter, the presumption of
innocence matters, and proportionality matters. The rule of law
is not the monopoly of the House managers, and it ought to be
practiced in these proceedings, as well as talked about in
speeches.
We have heard a lot of pejorative rhetoric about legal
hairsplitting that the President and his legal team have
engaged in. As a member of that legal team, I paid attention to
that rhetoric. But as I sat there listening to the various
presentations, they struck me as somewhat odd, because one of
the hallmarks of the rule of law is careful procedures and
explicit laws which try to define rights for every citizen.
It is not legal hairsplitting to raise available defenses,
or to point out gaps in the evidence, or to make legal
arguments based upon precedent, however technical and
politically unpopular some of those arguments may be. And I
think it is particularly important in a proceeding like this
where the charge is an accusation of a crime. Mr. Manager
McCollum was quite explicit in his argument that the first
thing you have to determine here is whether the President
committed any crimes.
I am going to try to focus on the facts and the evidence
concerning obstruction of justice. I don't think there is a
need for me to go into the law; we have set forth the relevant
legal principles in our trial memorandum. Mr. Ruff and Ms.
Mills very ably covered some of the governing principles, and
Ms. Mills played some videotape excerpts of experts, and the
law on obstruction of justice is relatively settled. Indeed,
our primary disagreement with the very able House managers
concerns the evidence and what it shows.
Now, in December the Judiciary Committee of the House of
Representatives reported four articles of impeachment to the
floor. Two of those--one alleging perjury in the President's
January 17, 1998, deposition in the Paula Jones case, and one
alleging abuse of power--were specifically considered by the
House and just as specifically rejected, although the House
managers had very cleverly attempted to weave into their
discussion of the two articles that were adopted some of the
rejected allegations.
Now, on the chart, article II alleges that the President
has, in some way, impeded or covered up the existence of
evidence relevant to the Paula Jones case. That is the whole
focus of this article. It focuses on the alleged impact on the
Paula Jones case. It is important because when we get to
subpart (7), we will see that there is no way the allegations
there could be a part of this article or impact the Paula Jones
case.
The President supposedly accomplished this obstruction of
justice through--and here I quote--``one or more of the
following acts . . .''
Here, I think I should observe that this ``one or more''
menu, as it were, is plainly defective in a constitutional
sense because, as we have pointed out in our answer and in our
trial memorandum, and as Mr. Ruff has made clear in his
presentation, such a format makes it impossible to assure that
the constitutionally required two-thirds of Senators voting
concur on any particular ground that is alleged. Since the
Senate rules provide that you can't split up this menu--you
have to cover all seven allegations together--it would be
possible for the President to be convicted without that
requisite two-thirds majority, because you might get 9 or 10
votes in favor of the article based on each of the 7 different
grounds.
The Constitution, of course, gives the House of
Representatives the sole power of impeachment and has exercised
that power to adopt article II. However, several of the
allegations about what the President did to obstruct justice,
supposedly in the House managers' presentation, are nowhere
contained in these seven subparts; they are simply not there.
For example, you heard repeatedly about the President's use
in his deposition of the term ``alone''--was he ever alone with
Ms. Lewinsky. The managers claim that that somehow obstructed
justice. The allegation that this consisted of an impeachable
offense, however, was rejected when the House of
Representatives voted down one of the four articles alleging
deposition perjury.
You have also heard reference to the President's allegedly
false and misleading answers to the 81 interrogatories sent to
the President in November by the House Judiciary Committee.
Again, an article based upon those interrogatory answers was
voted down in the House of Representatives.
I would like you to bear in mind an image which Mr. Manager
Hutchinson and Counsel Ruff share in some way. You will see
that they didn't share it entirely. Mr. Manager Hutchinson
referred to the ``seven pillars of obstruction.'' Mr. White
House Counsel Ruff referred to the seven ``shifting sand
castles of speculation.'' It won't surprise you that I agree
with Mr. Ruff's characterization. But the important point is
that there are 7 grounds in this article; there are not 8,
there are not 19, there are 7 charges. That is what the House
enacted and that is what we are going to address and rebut.
Before considering the five subparts of article II that I
am going to be addressing, I would like to say a few words
about the different kinds of evidence you are going to have to
consider. There is, first, direct evidence. Now, this isn't the
most probative kind of evidence, because it is the least
ambiguous. It comes directly from the five senses of the
witness. For example, when the witness testifies about
something the witness did, that is direct evidence.
From the House managers' very skillful presentation, you
would not be aware of the large amount of direct evidence which
is in the record which refutes and contradicts the allegations
of obstruction of justice. I am going to cover that in detail
this afternoon.
The second kind of evidence is what the law calls
circumstantial, and this describes any evidence which is
probative only if a certain conclusion or inference is drawn
from the evidence. Circumstantial evidence is admissible, but,
by its definition, it is to some degree ambiguous because it is
not direct. Its probative power--or its value--depends upon the
strength of the inference you can logically draw from it.
Let me give you an example. You walk out of your house in
the morning and you see the sidewalk is completely wet. You
might conclude that it has rained the night before and you
might be reasonably confident in that conclusion. However, were
your sharp eyes to focus further and observe your neighbor's
sprinkler sitting right by the sidewalk, dripping from the
sprinkler head, you might want to revise your conclusion.
Circumstantial evidence is often subject to several
different interpretations, and for this reason it has to be
viewed very carefully. As one court has stated,
``Circumstantial evidence presents a danger that the trier of
fact may leave logical gaps in the proof offered and draw
unwarranted conclusions based on probabilities of low degree.''
If a criminal charge is to be based on conclusions drawn
from circumstantial evidence rather than on direct evidence,
those conclusions have to be virtually unavoidable. Most of the
obstruction case presented--and they have recognized this, and
Mr. Manager Hutchinson recognized it on Saturday--is based on
circumstantial evidence, and that evidence is, at best,
profoundly ambiguous. They told you that they have painted a
picture with circumstantial evidence. I think what they have in
fact done is given you a Rorschach test.
I would like to now turn to the five subparts of article I
which I intend to cover. And I want to describe, as to each,
the relevant direct evidence in the record, the circumstantial
evidence, and the portions of the managers' presentation which
do not in fact constitute either kind of evidence but in fact
represent speculation, theorizing, and hypothesis. What I
believe you will find is that the direct evidence disproves the
charges of obstruction and the managers have had to rely on
contradictory and unpersuasive circumstantial evidence to try
to make their case.
Subpart (1) of article II alleges that the President
encouraged Ms. Lewinsky to execute an affidavit in the Paula
Jones case ``that he knew to be perjurious, false and
misleading.'' The House managers allege that during a December
17 telephone conversation Ms. Lewinsky asked the President what
she could do if she were subpoenaed in the Jones case and the
President responded, ``Well, maybe you could sign an
affidavit.'' And that is a statement the President does not
dispute making.
It is hard to believe, but this statement of the President
to Ms. Lewinsky, advising her of the possibility of totally
lawful conduct, is the House managers' entire factual basis for
supporting the first allegation in subpart (1). The managers
don't claim that the President advised her to file a false
affidavit. That is not what subpart (1) alleges. And there is
no evidence in the record anywhere to support such an
allegation. Nor do the managers allege he even told her,
advised her, urged her, or suggested to her what to put in her
affidavit. The charge which the managers have spun out of this
single statement by the President is refuted by the direct
evidence.
First of all, Ms. Lewinsky has repeatedly and forcefully
denied any and all suggestion that the President ever asked her
to lie. In her proffer--and a proffer, of course, is an offer
made to a prosecutor to try to get immunity--she made in her
own handwriting on February 1, 1998, she stated explicitly
that, ``Neither the President nor anyone on his behalf asked or
encouraged Ms. Lewinsky to lie.''
In an FBI interview conducted on July 27, she made two
similar statements. And you see them up here on the chart:
``Neither the President or Jordan ever told Lewinsky that she
had to lie.''
``Neither the President nor anyone ever directed Lewinsky
to say anything or to lie.''
And it was the FBI agent who transcribed those two
comments.
I would like to focus upon the fact that she told the FBI
the President never directed her ``to say anything or to lie.''
I think that is particularly telling as the direct evidence
in the context of this allegation that the President supposedly
urged her to file an affidavit that he knew would be false.
Finally, in Ms. Lewinsky's August 20 grand jury testimony,
she stated--and she had to volunteer to do it--``No one ever
asked me to lie and I was never promised a job for my
silence.''
``No one ever asked me to lie and I was never promised a
job for my silence.''
Is there something difficult to understand here?
It is interesting to see how the House managers try to
establish that somehow the President asked Ms. Lewinsky to file
a false affidavit. But their argument essentially begs the
question. They argue that the President in fact somehow
encouraged her to lie because both parties knew the affidavit
would have to be false and misleading to accomplish the desired
result.
But again there is no evidence to support this conjecture,
and in fact the opposite is true. Both Ms. Lewinsky and the
President have testified repeatedly that, given the particular
claims being made in the Jones case, they both honestly believe
that a truthful, albeit limited, affidavit might--``might''--
establish that Ms. Lewinsky had nothing relevant to offer in
the way of testimony in the Jones case.
The President explained in his grand jury testimony on at
least five occasions in response to the prosecutor's question
that he believed Ms. Lewinsky could execute a truthful but
limited affidavit that would have established there was no
basis for calling her as a witness to testify in the Jones
case.
For example, the President told the grand jury:
But I'm just telling you that it's certainly true what she
says here, that we didn't have--there was no employment, no
benefit in exchange, there was nothing having to do with sexual
harassment. And if she defined sexual relationship in the way I
think most Americans do . . . then she told the truth.
Or again, the President told the grand jury:
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.
It is important to bear in mind that the Paula Jones case
was a sexual harassment case, although it turned out to be
legally groundless, and it involved allegations of
nonconsensual sexual solicitations. Ms. Lewinsky's relationship
to the President had been consensual. She knew nothing
whatsoever about the allegations in the Jones case. There is no
evidence in the record that she had ever been in Arkansas in
her life. And in any event, the Jones case arose out of factual
allegations dating from May of 1991 when the President was
Governor of Arkansas, long before Ms. Lewinsky had even met the
President.
Now, it is not simply the President who believed that in
the circumstances here Ms. Lewinsky could have filed an
affidavit which could have been truthful and which might have
gotten her released from testifying in a Jones case deposition.
Ms. Lewinsky also has testified that she might have been able
to file a truthful affidavit which would have accomplished that
purpose. For example, she told the FBI in an interview after
she obtained immunity on July 29 that she had told Linda Tripp
that the purpose of an affidavit was to avoid being deposed,
and that she thought one could do this by giving only a portion
of the whole story so the Jones lawyers would not think the
person giving the affidavit added anything of relevance to
their case.
Again, in the same interview with the FBI, Ms. Lewinsky
stated that the goal of such an affidavit was to be as benign
as possible so as to avoid being deposed.
Again, in her grand jury testimony on August 6, Ms.
Lewinsky testified 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 there could range from anywhere
between maybe just somehow somehow mentioning, you know,
innocuous things.
It is not disputed that the President showed no interest in
viewing a draft of Ms. Lewinsky's affidavit, did not review it,
and, according to Ms. Lewinsky, said he did not need to see it.
This fact is obviously exculpatory. If the President were truly
concerned about what was going into Ms. Lewinsky's affidavit,
surely he would have wanted to review it prior to his
summation.
Now, to counter this inference, the House managers offer
speculation. Mr. Manager McCollum tried to downplay the
significance of this fact by asking you to engage in sheer
surmise. He said on Friday:
I doubt seriously [the President] was talking about 15
other affidavits of somebody else and didn't like looking at
affidavits anymore. I suspect and I would suggest to you that
he was talking about 15 other drafts of this proposed affidavit
since it had been around the Horn a lot of rounds.
Well, as the able House manager himself stated, this
suggestion is mere suspicion, speculation; it flies in the face
of Ms. Lewinsky's direct testimony. There is evidence of only a
few drafts, and there is no evidence that the President ever
saw any draft.
Now, Ms. Lewinsky was under no obligation to volunteer to
the Paula Jones lawyers every last detail about her
relationship with the President, and the fact that the
President did not advise her or instruct her to do so is
neither wrong nor an obstruction of justice. The fact is that
the limited truthful affidavit might have established that Ms.
Lewinsky's testimony was simply not relevant to the Jones case.
The President knew and had told Ms. Lewinsky that a great
many other women he knew who had been subpoenaed by the Paula
Jones lawyers had tried to avoid the burden, the expense, and
the humiliation of a deposition by filing an affidavit in
support of a motion to quash the deposition subpoena and by
arguing in the affidavit that the subpoenaed woman had no
relevant evidence for the Jones case. The Jones lawyers were
casting a very wide net for evidence that they could use to
embarrass the President. The discovery cutoff in the case was
fast approaching--that is the point at which you can't take any
more discovery--and there was some chance both Ms. Lewinsky and
the President felt that she could escape deposition through an
accurate but limited affidavit.
Moreover, there is significant evidence in the record that
at the time she executed her affidavit, Ms. Lewinsky honestly
could believe, honestly believed that she could deny a sexual
relationship given what she believed to be the definition of
that term. In an audiotape conversation which Linda Tripp,
secretly recorded, Ms. Lewinsky declared:
I never even came close to sleeping with the President. We
didn't have sex.
Again, I would remind you of Mr. Craig's presentation
yesterday concerning Ms. Lewinsky's understanding of the term
``sexual relations,'' which was the same as the President's.
There is another part of the chronology here--and a
circumstantial evidence case often rests heavily on
chronology--that the House managers simply ignore in their
attempt to fit some of the facts into a sinister pattern. Ms.
Lewinsky's name appeared on the Paula Jones witness list which,
the managers tell us accurately, the President's lawyers
reviewed with him on Saturday, December 6. She was one of a
great many people named on the witness list.
Now, if the President's concern was so intense about the
appearance of her name on the list, would he have waited until
December 17 to talk to her? There is no explanation for this
delay, which is consistent with intense concern on the
President's part, except that her appearance with a lot of
others was not particularly troubling to him. The main reason
for his phone call on December 17 to Ms. Lewinsky, the
unrebutted evidence shows, is that he wanted to tell Ms.
Lewinsky that Betty Currie's brother had died. Indeed, 3 days
after that telephone call, Ms. Lewinsky attended the funeral of
Ms. Currie's brother on December 20.
Now, insofar as you want to draw inferences from the
chronology of events in December, this long delay is
circumstantial evidence that the President felt no particular
urgency either to alert Ms. Lewinsky that her name was on the
witness list or make any suggestions to her about an affidavit.
Remember her repeated testimony, which is direct evidence: No
one ever asked her to lie.
Now, subpart (2) of article II alleges that the President
obstructed justice by encouraging Ms. Lewinsky, in that same
late night telephone call--two of these articles rest on that
same telephone call--to give perjurious, false and misleading
testimony if and when she was called to testify personally in
the Jones litigation.
Now, it was interesting to me that a couple of days ago the
House managers released a response to our presentation, and
they concede here that the President and Ms. Lewinsky did not
discuss the deposition that evening of December 17 because
Monica--they call her Monica--had not been subpoenaed.
Well, that is true. There was no deposition subpoena
received by Ms. Lewinsky until 2 days later. Now, the lawyers
in the room know something about what witness lists are and
what they contain that the civilian part of the world may not
know. As lawyers get ready to go to trial, and the judge
requires them to put their witnesses on the witness list, you
put every witness you can think of who might conceivably be
relevant--from Mr. Aardvark to Ms. Zanzibar. All of them go on
the witness list. And that is what had happened here. It wasn't
until you get something like a subpoena for a deposition that
you know a witness is really going to be a significant player
in the trial.
Well, let's look at the allegations here. And remember,
these allegations focus on December 17, 2 days before Ms.
Lewinsky is going to receive her subpoena. I think you
logically begin with the direct evidence, and the direct
evidence is the testimony of the two people involved in the
telephone conversation, Ms. Lewinsky and the President. Ms.
Lewinsky has repeatedly stated that no one ever urged her to
lie and that this plainly applies to this December 17
conversation. She said, in her handwritten proffer that I had
on the chart earlier, that the President did not ask her or
encourage her to lie. She made that statement when talking to
the independent counsel, when her fate was in the hands of the
independent counsel, when her immunity agreement could be
broken and she could be prosecuted. She has, nevertheless,
continued to maintain that nobody asked her ever to lie. She
said in the July 27 FBI interview neither the President nor Mr.
Jordan ever told her she had to lie, and she said that in her
grand jury testimony.
It is interesting to hear all the ways that the House
managers--and they are very skillful--try to minimize the
importance of this direct evidence. You would think Ms.
Lewinsky's statements under oath were irrelevant to this case.
She gave this testimony, for the most part, when she was
subject to prosecution for perjury. It simply cannot be blandly
dismissed because it was given under this threat. Indeed, Mr.
Manager Hutchinson--and I would like to quote him--shares this
same belief with me. He told you, standing right here, ``that
Ms. Lewinsky's testimony is credible and she has the motive to
tell the truth because of her immunity agreement with the
independent counsel, where she gets in trouble only if she
lies.''
Likewise, the President has consistently insisted he never
asked Ms. Lewinsky to lie. In his grand jury testimony last
August, he said that he and Ms. Lewinsky ``might have talked
about what to do in a non-legal context at some point in the
past,'' if anybody inquired about their relationship, although
he had no specific memory of such a conversation. And he
testified that they did not talk about this in connection with
Ms. Lewinsky's testimony in the Jones case.
He was asked by one of the prosecutors:
In that conversation, [on December 17] or in any
conversation in which you informed her she was on the witness
list, did you tell her, you know, you can always say that you
were coming to see Betty or bringing me letters? Did you tell
her anything like that?
[The President:] I don't remember. She was coming to see
Betty. I can tell you this. I absolutely never asked her to
lie.
There is, thus, no direct testimony from anybody that on
December 17 the President asked Ms. Lewinsky to lie if called
to testify in the Jones case. Here the House managers don't
really even rely on circumstantial evidence to refute the
direct testimony of the two relevant witnesses. They rely,
instead, on what they assert is logic. They claim that while
the President maybe didn't specifically tell her to lie, he
somehow suggested that she give a false account of their
relationship. What you should infer, according to them, is
based upon what they may have said about their relations at
other times, previous times to this late night December 17
phone call, the President somehow suggested that she say the
same thing at her deposition, something like, ``You know, you
can always say you were coming to see Betty, or that you were
bringing me letters.''
Their claim boils down, however, to the inferences to be
drawn from the uncontested fact that in the past, before this
time, before this December 17 phone call, the President and Ms.
Lewinsky had discussions about what she should say if asked
about the visits to the Oval Office.
Both have acknowledged that. Not surprisingly, at the time
these conversations occurred they were both concerned to
conceal their improper relationship from others while it was
going on. Cover stories are an almost inevitable part of every
improper relationship between two human beings. By its very
nature, the relationship is one that has to be concealed; and,
therefore, misleading cover stories inevitably accompanied that
relationship.
Now, to say that is not to excuse it or to exonerate it or
justify it; but, rather, to emphasize that the testimony about
``visiting Betty'' or ``bringing me letters'' is in the record,
but it is not linked in any way to the December 17 phone call
or to any testimony or affidavit with regard to the Jones case.
Here again, I want to go to the direct evidence that is
relevant on count 2, because it undercuts the managers'
suggestion that this discussion of the cover stories actually
occurred in the context of discussion about the Paula Jones
case.
Now, here on a chart we have a blowup of part of Ms.
Lewinsky's handwritten proffer to the independent counsel on
February 1, which makes it clear that she does recall having a
discussion with the President in which he said that if anyone
questioned her about visiting him, she should say she was
either bringing him letters or visiting Betty Currie. But Ms.
Lewinsky states, ``there is truth to both of these
statements.'' It was a cover story but there was some truth in
it.
She also went out of her way in this proffer to emphasize
that, while she did not recall precisely when the discussions
about cover stories occurred, they occurred ``prior to the
subpoena in the Paula Jones case.'' That is what you see in her
paragraph 11. Her paragraph 11 refers back to paragraph 2. And
her point is that, while she and the President did have these
discussions, it was not in the context of her testimony.
In paragraph 4 also, as you see from the chart or from your
handout, as to the contents of any possible testimony, Ms.
Lewinsky wrote that to the best of her recollection she did not
believe she discussed the content of any deposition during the
December 17 conversation with the President.
Now, in an FBI interview on July 31, after she had received
immunity from the independent counsel, the FBI agent noted what
Ms. Lewinsky had told him:
Lewinsky advised, though they did not discuss the issue in
specific relation[ship] to the Jones matter, she and Clinton
had discussed what to say when asked about Lewinsky's visits to
the White House.
This is direct evidence. Nobody denies that there was
discussion of cover stories early in the relationship, but
there is no evidence that it occurred in connection in any way
with the Jones case.
Again, despite Ms. Lewinsky's direct and unrefuted
testimony about the December 17 telephone call, the House
managers asked you to conclude that the President must have
asked her to testify falsely, because she had, by her own
account, on prior occasions, assured the President that she
would deny the relationship.
Think for a moment about that: They ask you to accept their
speculation, in the face of contradictory evidence from both
parties, and use that as a basis on which to remove the
President. Again, Ms. Lewinsky never stated that she told the
President anything about denying their relationship on December
17, or at any other time, after she had been identified as a
witness. Indeed, she testified in the grand jury that that
discussion did not take place after she learned she was a
witness in the Jones case. And, again, we have her grand jury
testimony displayed on the chart. A grand juror is asking a
question.
Question:
Is it possible that you also had these discussions [about
cover stories denying the relationship] after you learned that
you were a witness in the Paula Jones case?
[Ms. Lewinsky]: I don't believe so.
A juror--and these jurors were very good at questioning
witnesses throughout this proceeding:
Can you exclude that possibility?
[Ms. Lewinsky]: I pretty much can. I really don't remember
it.
Direct testimony given when Ms. Lewinsky was covered by an
immunity agreement that can only be divested by her perjuring
herself.
There is another thing that I think is relevant here, and
that is that Ms. Lewinsky has stated several times that while
these were cover stories, they were not untrue. In her
handwritten proffer, as you have seen, she stated that she
asked the President what to say if anyone asked her about her
visits. He said you could mention Betty Currie or bringing me
letters. And she added there was truth to both of these
statements and that ``[n]either of those statements [was]
untrue.'' Indeed, she testified to the grand jury that she did,
in fact, bring papers to the President and that on some
occasions, she visited the Oval Office only to see Ms. Currie.
Question by a grand juror:
Did you actually bring the President papers at all?
Yes.
All right. Tell us a little bit about that.
It varied. Sometimes it was just actually copies of letters
. . .
Again, in her August 6, 1998, grand jury appearance, Ms.
Lewinsky testified:
I saw Betty every time that I was there . . . most of the
time my purpose was to see the President, but there were some
times when I did just go see Betty but the President wasn't in
the office.
Ms. Lewinsky and Ms. Currie were friends, and they did have
a separate social relationship.
The managers assert that these stories were misleading, and
the House committee report on the articles of impeachment
declared that these stories about Ms. Currie and delivering
papers was a ``ruse that had no legitimate business purpose.''
In other words, while the so-called stories were literally
true, the explanations might have been misleading. But the
literal truth here, while it may appear legalistic and
hairsplitting, is, in fact, a defense to both the perjury and
the obstruction of justice charges under the rule of law. While
the President and Ms. Lewinsky had discussed cover stories
while their improper relationship was in progress, there is
simply no evidence that they discussed this at any time when
Ms. Lewinsky was a witness in the Jones case.
The next subpart I want to consider is subpart (5). Subpart
(5) alleges that at the deposition, 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.
It alleges obstruction solely because the President did not
say anything when his attorney, Mr. Bennett, cited Ms.
Lewinsky's affidavit in an unsuccessful argument to Judge
Wright that evidence concerning Ms. Lewinsky should not be
admitted at that point because it was irrelevant to the Jones
case. At one point, Mr. Bennett, the President's lawyer, states
that, according to the affidavit, ``there is no sex of any kind
in any manner, shape or form.''
This claim, which also is presented in the perjury section,
as Mr. Craig pointed out, is deficient as an allegation of
obstruction, both as a matter of fact and as a matter of law.
But I will say one thing. The direct evidence on this point
is uniquely available because there is only one witness who can
testify about what was in his thoughts at a given moment, and
the President has testified at great length in his grand jury
testimony about what he was thinking at this point.
The President told the grand jury that he was simply not
focusing closely on the exchange between the lawyers, but was
instead concentrating on his own testimony.
He said:
I'm not even sure I paid much attention to what he [Mr.
Bennett] 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.
And again the President testifies:
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.
I think Mr. Craig provided you with a background yesterday
that I won't repeat here, but I would refer you to about what
was on the President's mind at the time.
Mr. Manager McCollum made a very polished and articulate
presentation to you, and he predicted that the President's
lawyers were going to argue that the President sat in silence
because he wasn't paying attention. We have, indeed, argued
this, and it is the truth based upon what the President has
testified he was thinking about. But Mr. McCollum went on to
argue that there was circumstantial evidence available from the
videotape of the President at this deposition.
He stated:
We've already seen the video. And you know that he was
looking so intently. Remember, he was intensely following the
conversation with his eyes. I don't know how anybody can say
this man wasn't paying attention. He certainly wasn't thinking
about anything else. That was very obvious from looking at the
video.
We all saw the video during the House managers'
presentations, and we saw a lot of the President at the
deposition yesterday when Mr. Craig played the first part of
it. If you observe the President throughout the time you have
seen him on the video in the deposition, you will conclude that
the look on his face was no different from what it was during
other discussions or arguments of counsel about evidentiary or
procedural matters. The videotape does not, fairly considered,
indicate that the President was, in fact, focusing on the
lengthy colloquy among the lawyers or that he knowingly made a
decision not to correct his own lawyer.
The President has received a great deal of criticism,
because at one point in his grand jury testimony, when asked
about Mr. Bennett's statement, the President responds to the
prosecutor that whether Mr. Bennett's statement is true depends
on what the meaning of the word ``is'' is. That is, ``there is
no sex of any kind.''
That has gotten its share of laughs. But when you read the
President's grand jury transcript in context, this was a
serious matter, and it is apparent that the President was not
in any way describing what was in his own mind at the time of
the deposition, but he rather was discussing Mr. Bennett's
statement from the vantage point of the President's later grand
jury testimony. He is interpreting what his own lawyer was
saying. Mr. Craig pointed this out yesterday.
That interpretation is not perjury in article I, and it is
not obstruction of justice in article II. What the exchange was
was that the President, in response to one of the prosecutors,
explains why, on one reading Mr. Bennett's statement, it may
not be false.
Now, it may be hairsplitting and it may be professorial and
it may be technical, but the important thing is it is a
retrospective assessment. The President is not talking about
himself. He is talking about how to construe Mr. Bennett's
statement. And what he says is, there is a way in which Mr.
Bennett's statement at the deposition is accurate; that is, if
Mr. Bennett was referring to the relationship between the
President and Ms. Lewinsky on that date, it was an accurate
statement because the improper relationship was over a long
time earlier.
Now, the relevant point here is that the President's
disquisition on the word ``is'' and its meaning was not an
attempt to explain his own thinking at the time of the
deposition, but was rather his later interpretation of what Mr.
Bennett had said at the deposition.
In light of the President's direct unequivocal testimony,
this speculation about what was in his mind is simply baseless,
and there is, in fact, no evidence to support the charge
leveled in subpart (5) of article II.
There is another reason to reject the charge; and that is,
that the law imposes no obligation on the client to monitor his
or her lawyer's every statement and representation.
Particularly in a civil deposition, in which the client is
being questioned, clients are routinely advised to focus on the
questions posed, think carefully about the answer, answer only
the question asked and ignore distractions. And sometimes, sad
to say, the statements of one's own lawyer can be a
distraction. And those of you who are lawyers and have defended
people in depositions know that that is the advice you give the
client.
There was good reason for the President to be thinking
about his own testimony and leave the legal fencing to the
lawyers, because whatever else may be said about him, there can
be no doubt that the Jones case itself was a vehicle for
partisan attack on the President and that he was going to be
facing a series of hostile and difficult questions at the
deposition.
Now, Judge Wright ultimately ruled that, giving Ms. Jones
every benefit of the doubt, she had failed both legally and
factually to present allegations that merited going to trial.
But while it was legally meritless, while it was going on, the
case did impose a significant toll on the President both
personally and politically.
And let's be clear about one other thing while we are
looking at this deposition and while you review the
significance of the President listening in silence to Mr.
Bennett's conduct. As Mr. Craig described yesterday, Judge
Wright, in fact, interrupted Mr. Bennett in mid sentence as he
was describing Ms. Jones' affidavit. She didn't allow him to
complete his objection in which he cited the Lewinsky
affidavit. She quickly interjected--and this is sometimes what
judges do to the most learned of lawyers--she quickly
interjected and said, ``No, just a moment, let me make my
ruling.'' And then she proceeded to allow the very line of
questioning that Mr. Bennett was trying to prevent. So the
President's silence, whatever motivated it, had absolutely no
impact on the conduct of the Jones deposition.
And also let's be clear about one other thing: Nothing
about this interchange between Mr. Bennett and Judge Wright
blocked the ability of the Jones lawyers to obtain information
about the President's relationship with Ms. Lewinsky because
the Jones lawyers had been briefed the night before in great
detail by Ms. Linda Tripp. Ms. Tripp had already gotten her own
immunity agreement from the Office of Independent Counsel and
had set up a lunch with Ms. Lewinsky at the Ritz-Carlton Hotel
the day before the deposition, Friday, January 16. And at that
lunch, of course, Ms. Lewinsky was apprehended by the Office of
Independent Counsel and held for the next 12 hours. In the
meantime, however, Ms. Tripp goes back to her home where she
meets with the Jones lawyers that Friday night before the
deposition and loads them up with all the information she has
obtained from her illegal, secret audiotaping of Ms. Lewinsky.
That is why they were able to ask the questions they did with
such specificity and conviction.
Indeed, there is one point in the examination of the
President where he says to the Jones lawyer who is examining
him, Mr. Fisher--he asked the question. And Fisher says, ``Sir,
I think this will come''--he asked a question about ``Can you
tell me why you are asking these specific questions?'' and
Fisher replies, ``Sir, I think this will come to light shortly,
and you'll understand.''
Well, how ironic that I am making a presentation today on
January 21 because it did come to light--just as Mr. Fisher
knew it would; just as Ms. Tripp knew it would--it came to
light 1 year ago exactly when the story broke in the Washington
Post. This fleeting exchange between Mr. Bennett and Judge
Wright before she overruled his objection could not and didn't
have any impact on the Jones lawyers' conduct.
Now, I want to look briefly at one other part of subpart
(5) because it continues to make one other allegation: Such
false and misleading statements at the deposition by Mr.
Bennett allegedly were subsequently acknowledged by Mr. Bennett
in a communication with the judge.
Now, if you look at Mr. Bennett's letter, however, that is
not at all what the letter says. Mr. Bennett wrote to the judge
on September 30 of last year. This is after the referral had
come to Congress and after the House of Representatives had
seen fit to release Ms. Lewinsky's grand jury testimony. Mr.
Bennett does not, as the article alleges, acknowledge that he
himself made false and misleading statements or that the
President, either by his word or silence, made such statements.
What Mr. Bennett does do in this letter, as you can see, is
call the court's attention to the fact that Ms. Lewinsky
herself had testified before a Federal grand jury in August.
And--contrary to her earlier statements--she stated that
portions of her affidavit were, according to her, false and
misleading. Mr. Bennett's letter, bringing this to the judge's
attention, was a matter of professional obligation and
responsibility. It in no way is evidence supporting subpart
(5).
Take a break?
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. Mr. Chief Justice, Mr. Kendall, indicating that
he is about halfway through his presentation----
Mr. Counsel KENDALL. That is correct, sir.
Mr. LOTT. I would, then, ask unanimous consent we have a
temporary recess for 15 minutes.
There being no objection, at 2:09 p.m., the Senate recessed
until 2:30 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
Mr. CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe the Senate is ready
to proceed now with the presentation by Counsel Kendall.
The CHIEF JUSTICE. The Chair recognizes Counsel Kendall.
Mr. Counsel KENDALL. Thank you, Mr. Chief Justice.
Subpart (7)--we have two more subparts to go. I will take
them out of order. Subpart (7) of article II alleges that the
President obstructed justice when he relayed or told certain
White House officials things about his relationship with Ms.
Lewinsky that were false and misleading. This is another
example of double billing in the two articles. This charge is
leveled in article I, and it appears here in article II.
Yesterday, Mr. Craig explained why these statements didn't
constitute perjury, and I would like to take just a few minutes
this afternoon to explain why they don't constitute an
obstruction of justice, either.
First of all, and most obviously, there is no way--I said
this in the beginning--there is no way that the statements of
the aides could be in any way part of a scheme to deny Ms.
Jones evidence. I think on this ground alone subpart (7) fails,
because if you look at what is alleged in article II, it is
that the President obstructed justice in order to delay,
impede, et cetera, existence of testimony related to Ms. Jones'
lawsuit. There is no way here that whatever the President said
to an aide could have done that.
The statements, which this subpart (7) addresses, were
statements that the President made very shortly after the
Lewinsky publicity had broken to Mr. Bowles, Mr. Podesta, Mr.
Blumenthal and Mr. Ickes, none of whom were witnesses in the
Paula Jones case. They were on none of the witness lists, and
they had no evidence at all relevant to the Paula Jones case
since they had been working for the President. They weren't
working for the President when he was Governor of Arkansas in
May of 1991, and they weren't individuals subject to discovery.
So these four aides just had no evidence whatsoever that they
could contribute to the Paula Jones case.
But there is another more fundamental reason why this
article is flawed as a matter both of the evidence and the law.
The President has admitted misleading his family, his staff,
and the Nation about his conduct with Ms. Lewinsky. And he has
expressed profound regret for that conduct. Subpart (7),
however, alleges that he should be impeached and removed from
office simply because he failed to be candid with these
particular four White House aides and misled them about the
nature of his relationship with Ms. Lewinsky.
These allegedly impeachable denials to the four aides
occurred, as I said, right after the publicity broke. And one
of them occurred on January 21, last year, and then also on the
23rd and the 26th. This was at the very time the President
denied he had had sexual relations with Ms. Lewinsky in nearly
identical terms on national television to whoever throughout
the United States happened to be watching at that time.
Having made this denial to the entire country, it simply is
absurd to regard it any differently when made to four aides in
the White House directly and person-to-person rather than
through the medium of television. The President talked to these
individuals about the Lewinsky matter because of his personal
relationship and his direct professional exposure to them on a
daily basis. He spoke to them, however, misleadingly in an
attempt to allay their concern once the allegations about Ms.
Lewinsky become public.
No discovery here--never yet found a place in which
discovery would benefit the case for either side--but no
discovery here is going to illuminate the record in any way.
These four witnesses have testified before the independent
counsel's grand jury on several occasions.
I think it is important to observe also that there is no
way this interchange between the President and his aides could
have affected evidence because his statements to them were
hearsay which they would have reported accurately to the grand
jury when asked. And by ``hearsay,'' all they can testify to is
what the President told them, and they could do that
accurately. But their own testimony, based on whatever
knowledge or observation or direct sensory evidence they might
have, was not affected in any way by the President's statement.
None of these aides had any independent knowledge of the
relationship between the President and Ms. Lewinsky and,
therefore, the only evidence they do offer would be a hearsay
repetition of what the President had told them. And that was
the same public denial that he had told everyone, including,
presumably, any member of the grand jury who had his or her
television set on on that Monday, January 26.
But under the strained theory--you really have to focus on
this--under this theory, any citizen of the United States who
heard that denial could form the basis for an allegation of
impeachable conduct and removal of the President from office.
I think this subpart (7) of article II fails for a number
of reasons not related to the Paula Jones case, and it violates
common sense.
Let me turn to subpart (4). This subpart alleges that the
President obstructed justice when he intensified and succeeded
in an effort to secure job assistance for Ms. Lewinsky in order
to corruptly prevent her truthful testimony. The claim here is
of a quid pro quo, a ``this for that.'' His job assistance was
allegedly in order to prevent her truthful testimony.
I want to note a couple of things here. First of all, this
word ``intensified'' is a pretty slippery word. It doesn't say
``originated'' or ``began.'' It says ``intensified.'' And that
allegation implicitly tries to avoid the thrust of its own
logic. It recognizes that the job search Ms. Lewinsky was
conducting had begun long before there was any connection to
the Paula Jones case. And the undisputed facts are going to
reveal that Vernon Jordan and others were trying to help her
long before she appeared on the list of witnesses Ms. Jones was
considering calling.
The second thing I want to emphasize is the quid pro quo
nature of the allegation. Quid pro quo is a good Latin term
meaning ``this for that.'' ``In order to'' is the allegation of
subpart (4). The job assistance was ``in order to'' prevent Ms.
Lewinsky's truthful testimony.
Well, I want to review the evidence a bit because there is
not only no evidence in the record; there is a lot of
contradictory evidence, both direct and circumstantial. We have
heard a great deal in the various presentations about Mr.
Jordan's assistance to Ms. Lewinsky. But I was surprised to sit
right over there through 11 hours 52 minutes, by my watch, of
the House managers' very able presentation, and I heard almost
nothing about what actually happened in New York City as a
result of Mr. Jordan's efforts. But when we review the
evidence--and it is all right here. Don't worry, I am not going
to review every page of it. But it is all here. When we review
this evidence which is available--all you have to do is read
it--we get a very different picture from what we got from the
able House managers. There is no secret about it, nor is there
any conflict in the testimony of these witnesses. There is no
need for further discovery here, as I will show, because the
testimony is consistent.
Now, the proof that is in the record is that there was no
corrupt linkage, no assistance whatsoever which was designed
and focused to get Ms. Lewinsky to do anything--nothing which
tied the job assistance to what was going on in the Jones case.
Mr. Jordan did help open doors, and Ms. Lewinsky went through
those doors, and she either succeeded or failed on her own
merits. Two of the companies declined to offer her a job, and
at the third she did get an entry-level job, which she received
on her own merits.
There was no fix, no quid pro quo, no link to the Jones
case. And also there was no urgency to Mr. Jordan's assistance
to her. He started assisting her well before she showed up on
the Jones witness list, and he helped her whenever he could,
consistent with his own heavy travel schedule. There is the
allegation of a quid pro quo, but there is nothing in the
evidence to support the ``pro'' part of it.
What the House managers have tried to do--and they are
skillful prosecutors, they are able, they are experienced, they
are polished, and they know what they are doing--they have
tried to juxtapose unrelated events and, by a selective
chronology, tried to establish causation between two wholly
unrelated sets of events. And there an old logical fallacy--you
have had enough Latin today--that just because something comes
after something, it was caused by the preceding event. It is
like the rooster crowing and taking credit for the sun coming
up. When you look at the House managers' case, there is a lot
of that going on, because we will see there is no real
existence of causal connection and we will also see that a lot
of the chronology you have been given is erroneous.
As I said earlier, there is no evidence, either direct or
circumstantial, to support this quid pro quo allegation.
Now, let's start with the direct evidence, the most logical
place to begin. It could not be more unequivocal. Let's start
with Ms. Lewinsky. First of all, her New York job search began
on her own initiative long before any involvement in the Jones
case. Moving to New York was her own idea, and it was one she
raised in July of 1997. This geographical move did not affect
in any way her exposure to a subpoena in the Paula Jones case.
Under the Federal Rules of Civil Procedure, of course, a
witness can be subpoenaed in any Federal district, no matter
where the case is pending. And, indeed, a great many of the
depositions in the Paula Jones case took place outside the
State of Arkansas. For this reason, Mr. Manager Barr's
assertion that the President wanted Ms. Lewinsky to go to New
York because it would ``make her much more difficult, if not
impossible, to reach as a witness in the Jones case'' is
entirely untenable; she was just as vulnerable to subpoena in
New York as she was in Washington. And, indeed, she was already
under subpoena in January when she was finalizing her move.
This contention just does not withstand scrutiny.
Now, Ms. Lewinsky testified:
I was never promised a job for my silence.
You can't get any plainer than that. She testified that her
job search had no relation to anything that she might do in the
Jones case. In her July 27 interview with the FBI, the FBI
agent recorded her statement that there was no agreement with
the President, with Mr. Jordan, or anyone else that she had to
sign a Jones affidavit before getting a job in New York. She
told the FBI agent explicitly that she had never demanded from
Mr. Jordan a job in exchange for a favorable affidavit and
neither the President nor Mr. Jordan nor anyone else had ever
made this proposition to her.
Now, Mr. Jordan, who is an eloquent and exceedingly
articulate man, took care of that claim in his own grand jury
testimony. He was asked about any connection between the job
search and the affidavit. He said there was absolutely none. He
said, on March 5, as far as he was concerned these were two
entirely separate matters. And in his grand jury appearance on
May 5 he was asked whether the two were connected, and Mr.
Jordan said, ``Unequivocally, indubitably, no.''
The President has likewise testified that there was no
connection between the Jones case and Ms. Lewinsky's job
search. He told the grand jury:
I was not trying to buy her silence or get Vernon Jordan to
buy her silence. I thought she was a good person. She had not
been involved with me for a long time in any improper way,
several months, and I wanted to help her get on with her life.
It is just as simple as that.
Quid pro quo? No. The uncontested facts bear out these
categorical denials of the three most involved people. Ms.
Lewinsky began looking for a job in July of 1997, and the event
which hardened her resolve to move to New York was a report by
her ostensible good friend, Ms. Linda Tripp, on or about
October 6 that one of Ms. Tripp's friends at the National
Security Council said that Ms. Lewinsky would never ever get a
job in the White House again.
Now, it turns out that this disclosure, like so much else
Ms. Tripp said, is false. Ms. Tripp's NSC friend said no such
thing. But it did have a profound impact on Ms. Lewinsky, who
described it as the straw that broke the camel's back. It was
plain to her then that she was never going to be able to get
another White House job.
Mr. Jordan's assistance of Ms. Lewinsky began about a month
before Ms. Lewinsky learned--about 6 weeks before she learned
she was a possible witness in the Jones case. Ms. Lewinsky
testified that she had discussed with Linda Tripp sometime in
late September or early October the idea of asking for Mr.
Jordan's assistance, and Ms. Lewinsky indicated she could not
recall if it were her idea or Linda Tripp's idea, but in any
event Mr. Jordan became involved sometime later at the
direction not of the President but of Ms. Currie, who was a
long-time friend of Mr. Jordan and who had discussed with Ms.
Lewinsky her job search. Now, Ms. Currie had previously
assisted Ms. Lewinsky in making contact with Ambassador Bill
Richardson at the U.N. Ms. Lewinsky's first meeting was with
Mr. Jordan on November 5, and Ms. Lewinsky testified that the
meeting lasted about 20 minutes and that they had discussed a
list of possible employers she was interested in. She never
told Mr. Jordan that there was any time constraint on his
assistance, and both she and Mr. Jordan traveled a great deal
out of the country and in the country in that November-December
period.
Now, Mr. Jordan testified unequivocally that he never, at
any time, felt any particular pressure to get Ms. Lewinsky a
job. This is plain and powerful and unrebutted testimony. He
was asked in the grand jury if you recall any ``kind of a
heightened sense of urgency by Ms. Currie or anyone at the
White House'' about helping Ms. Lewinsky during the first half
of December?
And he replied, ``Oh, no, I do not recall any heightened
sense of urgency. What I do recall is that I dealt with it as I
had time to do it.''
Now, let me just pause here and observe that if there had
been any improper motive or any sinister effort to silence Ms.
Lewinsky, it would have been extremely easy for the President
to have arranged for her to be hired at the White House. If
there were some corrupt intent to silence her, that was an
obvious solution because she very much wanted to go back to
work at the White House. It mattered to her a great deal. But,
while she was interviewed a couple of times by White House
officials in the summer of 1997, those interviews never
resulted in a job offer. The fix was not in. There was no
corrupt effort to bring Ms. Lewinsky back, give her a White
House job or, indeed, transfer her in any way from her Pentagon
job.
Now, she continued her job search efforts with the
assistance of some of the White House people. In late October
or early November, she told her boss at the Pentagon, Mr.
Kenneth Bacon, that she wanted to leave and move to New York
City. She enlisted his assistance in trying to help her get a
private sector job, and he helped her because she had done good
work for him. He had a positive impression and testified that
he wanted to do whatever he could for her.
In November of 1997, her supervisor at the Pentagon
indicated that Ms. Lewinsky gave notice of an intention to quit
her Pentagon job at the year end.
Now, before we get to the private sector firms that Ms.
Lewinsky went to, I want to pause and make the point that she
had a United Nations delegation job in her back pocket. Back
pocket is a male image--perhaps in her purse. She had it in her
hand and available, all during this period.
In early October, at the request of Ms. Currie, Mr.
Podesta--John Podesta, who was then the White House Deputy
Chief of Staff--had asked Ambassador Bill Richardson to
consider Ms. Lewinsky for a position at the U.N. The Ambassador
testified that he did not take this as a ``pressure call.'' He
said ``there was no pressure anywhere by anybody'' to hire Ms.
Lewinsky.
Ms. Currie testified to the grand jury, without
contradiction, that she was acting on her own, as Ms.
Lewinsky's friend, in trying to help her.
Now, Ms. Lewinsky interviewed for the U.N. position on
October 31 with Ambassador Richardson. And he, through his
staff, offered her a job on November 3. Ambassador Richardson
testified to the grand jury that he never spoke to the
President or Mr. Jordan about Ms. Lewinsky, that he was
impressed by her, that he made the offer on the merits, and
that no one had pressured him to hire her.
He testified specifically to the grand jury on April 30:
This was my decision to hire her. I did not do it under any
pressure or anything. I felt that she would be suitable for the
job, and I didn't feel I had to report to anybody. It's not in
my nature. I don't take pressure well on personnel matters. I'm
a Cabinet member. I don't have to account for anything. This
was mine, my choice, my decision. And I stand behind it.
He also declared:
What I did was routine.
This fact was highly significant, because although this job
was not precisely the job Ms. Lewinsky wanted, it was a job in
New York, and she kept this open until January 5 when she
finally turned it down. Now, it was Mr. Manager Bryant who
referred to this in passing--just kind of walked around it. He
disparaged it in the way a good trial lawyer does--recognize it
is there, but then move around and away from it. But it is an
important fact and it tears a very large hole in their
circumstantial evidence case. Because she had in her hand, I
will say, this job offer all through this period of November
and December and into January. It wasn't precisely what she
wanted but it was a good job. It was in New York City. And
there was no urgent necessity for her, connected with her
private sector job search. Once again, quid pro quo? No.
Now, there is a lot of further direct evidence concerning
her job search. And this is contained in a great many
interviews in grand jury transcript from the people at the
various New York firms Mr. Jordan contacted on Ms. Lewinsky's
behalf. Again, there is simply no direct evidence whatsoever
from any of these people of any kind of quid pro quo treatment.
While Mr. Jordan made the contacts on her behalf, there was no
urgency about them. There was no pressure, and they were wholly
unrelated to the Jones case.
Let's recognize the obvious here. The President's relation,
improper relation with Ms. Lewinsky, had been over for many
months. He continued to see her from time to time. He did what
he could to be of assistance to her as she sought employment in
New York because, as he testified, she was a good person, and
he was trying to help her get on with her life.
Mr. Jordan was able to open some doors, but once open,
there was no inappropriate pressure. He really opened three
doors for her: at American Express, at Young & Rubicam, and at
Revlon. And she batted one for three. And actually in job
searches, as in baseball, I, at least, will take that batting
average any day of the week. But she succeeded on her own once
she was through the door. And her getting through the door had
no relation to the Paula Jones case.
Let's, first of all, take a look at what happened with
American Express and see whether in direct or circumstantial
evidence there is any evidence of a quid pro quo here. The
independent counsel conducted a very large number of interviews
and also summoned a great many witnesses from each of these
three sets of companies. Mr. Jordan was a member of the
American Express board of directors, and he telephoned a Ms.
Ursula Fairbairn, the executive vice president of human
resources at American Express on December 10 or 11. And he told
Ms. Fairbairn that he wanted to send her the resume of a
talented young woman in Washington, to see whether she matched
up to any openings at American Express.
Ms. Fairbairn told the FBI that it was not at all unusual
for American Express board members or other company officers to
recommend young people for employment. Ms. Fairbairn said Mr.
Jordan did not, in fact, mention any White House connection
that the applicant had, and he exerted no pressure at all on
her to hire the applicant. Ms. Fairbairn recalled that Mr.
Jordan made another employment recommendation about 2 months
earlier and indicated this was simply not an unusual request.
Now, the Office of Independent Counsel also--you see it on
the chart--interviewed Thomas Schick at American Express. He is
the executive vice president for corporate affairs and
communications.
Ms. Fairbairn had sent the name and resume to Mr. Schick
because she thought that is where Ms. Lewinsky might fit in,
and he interviewed Ms. Lewinsky on December 23 in Washington.
He decided after this interview not to hire Ms. Lewinsky
because he felt she was lacking in experience and he also
thought that American Express was probably not the right kind
of company for her, given what she had told him she was
interested in at the interview, and that she probably would be
better off going to a public relations firm.
The decision not to hire, he told the FBI, was entirely his
own. He felt no pressure to either hire or not hire Ms.
Lewinsky and never talked to Mr. Jordan at any time during this
process. Once again, quid pro quo? No.
The second company--actually two companies. It is Young &
Rubicam and Burson-Marsteller. Mr. Jordan called Peter
Georgescu, the chairman and CEO of Young & Rubicam, the large
New York advertising agency. Mr. Jordan had no formal
connection with the company, but he had been a friend of Mr.
Georgescu's for over 20 years.
Mr. Georgescu was interviewed by investigators of the
Office of Independent Counsel and said that sometime in
December 1997, Mr. Jordan had telephoned him and had asked him
to take a look at a young person from the White House for
possible work in the New York area.
Mr. Georgescu had responded, ``We'll take a look at her in
the usual way.'' And he stated that that was a kind of a code
between him and Mr. Jordan, and it meant that if there was an
opening for which she was qualified, she would be interviewed
and hired, but there would be no special treatment. He
testified that Mr. Jordan understood that, and he also said
that Mr. Jordan did not engage in any kind of sales pitch about
Lewinsky.
Mr. Georgescu said that he then initiated an interview on
behalf of Ms. Lewinsky, but his own involvement was arm's
length, and that she succeeded or failed totally on her own
merits.
He recalled that Mr. Jordan had made another similar
request on a previous occasion, and he said that he and Mr.
Jordan frequently exchanged opinions about people in the
advertising business on an informal basis.
As a result of this telephone call, Ms. Lewinsky was
interviewed by another person, a Ms. Celia Berk, who was the
managing director of human resources at Burson-Marsteller, a
public relations firm that was a division of Young & Rubicam.
According to Ms. Berk, this interview was handled ``by the
book,'' and while Ms. Lewinsky's interviews were a little bit
accelerated, they went through the normal steps.
Ms. Berk testified that nobody put any pressure on her. She
said that while both she and the director of corporate practice
at Burson-Marsteller, Erin Mills, and another corporate
practice associate, Ziad Toubassy, had all liked Ms. Lewinsky
and felt she was well qualified, the chairman of the corporate
practice group, Mr. Gus Weill, had decided not to hire
Lewinsky.
Ms. Mills testified that the procedure under which Ms.
Lewinsky was considered involved nothing out of the ordinary.
Not a single one of these witnesses testified there was any
urgency connected with Mr. Jordan's request.
Ms. Mills also told the FBI that despite the fact that Ms.
Lewinsky had been referred by the chairman of Young & Rubicam,
their consideration of her was entirely objective. She thought
that Ms. Lewinsky was poised and qualified for an entry-level
position, but Mr. Weill decided to take a pass. Once again,
quid pro quo? No.
Mr. Jordan was a member of the board of directors of
Revlon, a company wholly owned by MacAndrews & Forbes Holding
company, and Mr. Jordan's law firm had done legal work for both
of these companies.
The corporate structure here is complicated, but I will be
talking basically about two firms: Revlon--I think we all know
what Revlon does--and its parent company, MacAndrews & Forbes
Holding.
Mr. Jordan telephoned his old friend, Mr. Richard Halperin,
at the holding company on December 11 and said that he had an
interviewee or he had an applicant that he wanted to recommend,
and he gave Mr. Halperin some information about her. Mr.
Halperin testified to the grand jury that it wasn't unusual for
Mr. Jordan to call him with an employment recommendation. He
had done so at least three other times that Mr. Halperin could
recall.
On this occasion, Mr. Jordan told Mr. Halperin on the
telephone that Ms. Lewinsky was bright, energetic,
enthusiastic, and he encouraged Mr. Halperin to meet with her.
Mr. Halperin didn't think there was anything unusual about Mr.
Jordan's request, and he testified that in the telephone call
Mr. Jordan did not ask him to consider Ms. Lewinsky on any
particular timetable, no acceleration of any kind. Indeed, far
from there being some heightened sense of urgency, Mr. Halperin
explicitly told the FBI that there was no implied time
constraint or requirement for fast action.
Ms. Lewinsky came up to New York City and she interviewed
with Mr. Halperin on December 18, 1997. Mr. Halperin described
her as follows: As a ``typical young, capable, enthusiastic
Washington, DC-type individual.'' I don't know if that is
pejorative or not----
[Laughter.]
Who described her primary interest as being in public
relations. He and Ms. Lewinsky talked about the various
companies that MacAndrews & Forbes controlled, and Ms. Lewinsky
identified Revlon as a company that she would like to be
considered at, and Mr. Halperin decided to send her there for
an interview.
Mr. Halperin sent her resume to another person at the
holding company--not at Revlon, at the holding company--to a
Mr. Jaymie Durnan who was a senior vice president there. He got
the resume in mid-December, and he decided to interview her in
early January.
You have at the holding company two sets of interviews of
Ms. Lewinsky going on. When he returned in early January, Mr.
Durnan also scheduled an interview. He met with Ms. Lewinsky on
January 8. His decision was made entirely independently of Mr.
Halperin's decision, and he wasn't even aware Mr. Halperin had
seen Ms. Lewinsky when he met with her on January 8.
Mr. Durnan met with Ms. Lewinsky in the morning and he
thought--now there is his view; and you are going to get two
views of this interview--Mr. Durnan thought she was an
impressive applicant for entry-level work. He was impressed
with her, particularly by her work experience at the Pentagon,
he told the FBI. He felt she would fit in with the parent
company, but there were not any openings there.
Based upon what she had said her interests were, he decided
to send her resume over to Revlon, because he thought it
matched up well with her interests. He sent the resume over,
and he left a message--and now we are going to come to a Revlon
person--he left a message with Ms. Allyn Seidman, who was the
senior vice president of corporate communications at Revlon.
Now cut to Ms. Lewinsky. Ms. Lewinsky had had a very good
interview with Mr. Halperin, both she and Mr. Halperin thought.
However, for reasons the record doesn't make clear, Ms.
Lewinsky's impression of the Durnan interview was dismal. She
thought the interview had not gone well. She thought it had
gone poorly. She described herself as being upset and
distressed. She had no idea of his positive reaction to her.
And this is not just a late analysis. He had already sent the
resume. He sent the resume over to Revlon immediately after
their interview. But in any event, Ms. Lewinsky was afraid it
had gone poorly, that she had embarrassed Mr. Jordan. So she
called up Mr. Jordan.
And on that same day--later--January 8, Mr. Jordan spoke,
by telephone, to the CEO of MacAndrews & Forbes, his friend,
Mr. Ronald Perelman. He mentioned to Mr. Perelman that Ms.
Lewinsky had interviewed at MacAndrews & Forbes, but he made no
specific request and he did not ask Mr. Perelman to
specifically intervene in any way.
Later that day--and I know this is complicated--Mr. Durnan
happened to speak--Mr. Durnan is the second interviewer that
Ms. Lewinsky happened to speak to--happened to speak to Mr.
Perelman, and Perelman mentioned he had a call from Mr. Jordan
about a job candidate. Perelman then said to Durnan, ``Let's
see what we can do.'' And Durnan indicated he already, on his
own initiative, had been working on this, had talked to Ms.
Lewinsky, had sent her resume over to Revlon.
Mr. Perelman, later that day, phoned Mr. Jordan back to say
everything is all right, she appeared to be doing a good job,
the resume was over at Revlon. Mr. Jordan expressed no urgency,
no time constraints. Mr. Perelman didn't say anything out of
the ordinary had happened, because it had not.
Now, later that same day, after speaking to Mr. Perelman,
Mr. Durnan phoned Ms. Seidman at Revlon, and sent the resume
over earlier in the day. He didn't say that Mr. Perelman had
mentioned Ms. Lewinsky to him. He simply said to Ms. Seidman:
Look, I sent you a resume. I have met with the young woman. If
you think she is good, you should hire her.
According to Mr. Durnan, Mr. Perelman never said or implied
that Ms. Lewinsky had to be hired. And indeed, Mr. Durnan had
already interviewed her and formed a positive impression.
According to Ms. Seidman, who is at Revlon, Mr. Durnan gave her
a similar account that he gave to the grand jury. He said she
ought to interview Ms. Lewinsky, make her own decision, hire
her if she thought she was a good candidate only.
The record is crystal clear that Ms. Seidman over at Revlon
had no knowledge that Mr. Perelman had ever spoken to anyone
about Ms. Lewinsky. Ms. Seidman testified that she made an
independent assessment of Ms. Lewinsky. She interviewed her the
next day. She told the grand jury that she found Ms. Lewinsky
to be ``a talented, enthusiastic, bright young woman who was
very eager. I liked that in my department.''
At the conclusion of the interview, she intended to make an
offer to Ms. Lewinsky, but it was contingent on the opinion of
two other people--a Ms. Jenna Sheldon, who is the manager of
human resources at Revlon, and Ms. Nancy Risdon, who is the
manager of public relations for corporate affairs. Ms. Seidman
testified that after they both interviewed Ms. Lewinsky, Ms.
Risdon told her that she found her very impressive, and Ms.
Sheldon had also been very impressed. Ms. Risdon told the FBI
that she had been impressed with Ms. Lewinsky who, although she
had no public relations experience, was ``bright and
articulate.'' On the basis of all this, Ms. Seidman decided to
offer Ms. Lewinsky an entry-level job as public relations
administrator. The offer was made, and Ms. Lewinsky accepted.
And, I repeat, the record evidence is uncontradicted that the
fix was not on at all in this process.
This was the third company Ms. Lewinsky had interviewed
with, and on this series of interviews she was successful.
Nobody in any of these companies suggested there was any quid
pro quo link. The only person--the only person--in this record
who talked about trying to have Ms. Lewinsky use signing of the
affidavit as leverage to get a job was none other than Linda
Tripp, that paragon of fateful friendship.
On the audiotapes, it is Ms. Tripp who frequently urges Ms.
Lewinsky not to sign an affidavit until she has a job in New
York. It is not clear if Ms. Tripp knew about the U.N. job that
Ms. Lewinsky had. On the audiotape, Ms. Lewinsky sometimes
professes agreement with Ms. Tripp's advice, saying she will
not sign an affidavit until she has a job. But, as Ms. Lewinsky
testified to the grand jury--and, again, Ms. Lewinsky is
testifying under the threat of perjury, which will blow away
her immunity agreement--she was lying to Ms. Tripp when she
said she would wait to sign the affidavit until she got a job.
As Ms. Lewinsky testified to the grand jury, her statement
to Ms. Tripp about Mr. Jordan assisting her in a quid pro quo
sense was not true. She said it only because Ms. Tripp was
insisting that she promise her not to do this. But, in fact,
the affidavit was already signed when Ms. Lewinsky made that
promise. Once again, quid pro quo? No. That is some of the
direct evidence.
Let's look at the circumstantial evidence, the alleged
circumstantial evidence. The quid pro quo theory rests on
assumptions about why things happened and, on the facts, about
when things happened. The former requires logic, but the second
is a matter of fact.
I mentioned previously that article II of the subpart (4)
here uses the word ``intensified.'' It didn't say that the job
search began as an effort to silence Ms. Lewinsky. It only says
that it ``intensified'' as a result of that process.
The original charge made by the independent counsel--and it
is there in the independent counsel's referral at page 181--was
an allegation that the President helped Ms. Lewinsky obtain a
job in New York at a time when she would have been a witness
against him. However, the House committee looked at the
evidence I think in the five volumes and, even though they have
not referred to it here very much, decided that that theory
would not get off the runway. So they revised their claim and
gave us a kind of wimpified version, alleging not initiation
but intensification.
Now, under the right circumstances, it is plain that
helping somebody find a job is a perfectly acceptable thing to
do. There is nothing wrong with it. Mr. Manager Hutchinson told
you that--and I quote here--``There is nothing wrong with
helping somebody get a job. But we all know there is one thing
forbidden in public office: we must avoid quid pro quo, which
is: This for that.''
Now, he went on to assert that the President's conduct
``crossed the line,'' as he put it, when the job search
assistance became ``tied and interconnected''--those are his
words--with the President's desire to get a false affidavit.
And then he went on to say, ``You will see''--that is a
prediction that Mr. Manager Hutchinson made to you--``You will
see that they are totally interconnected, intertwined,
interrelated; and that is where the line has crossed into
obstruction.''
Mr. Manager Hutchinson pointed to a critical event for
their quid pro quo theory, and that is the entry on December
11, 1997, by Judge Wright, the judge in the Paula Jones case,
of an order pertaining to discovery in the Paula Jones case.
This is the critical event, according to the managers. But
let's look closely at this so-called ``critical event'' because
it's the only claim--only factual claim--the managers make of
some causal relationship between the job search and the Jones
case. And that claim is dead wrong; and it is demonstrably dead
wrong.
The managers have argued that what brought Mr. Jordan into
action to help Ms. Lewinsky find a job, what really jump-
started the process, was Judge Wright's December 11 order. And
that order concerned discovery of relationships the President
had--allegedly had--during the search period of time with women
who were State or Federal employees.
In the House, Chief Counsel Schippers powerfully made the
point about how important this December 11 order was. ``. . .
why the sudden interest,'' he asked, ``why the total change in
focus and effort?'' Nobody but Betty Currie really cared about
helping Ms. Lewinsky throughout November, even after the
President learned that her name was on the prospective witness
list. Did something happen [that moved] the job search from a
low to a high priority on that day?
Oh, yes, something happened. On the morning of December 11,
1997, Judge Susan Webber Wright ordered that Paula Jones was
entitled to information regarding these other women.
Now, Mr. Manager Hutchinson, again, emphasized the impact
of this December 11 order was dramatic. He stood here and told
you that the President's attitude suddenly changed, and what
started out as a favor for Betty Currie in finding Ms. Lewinsky
a job dramatically changed into something sinister after Ms.
Lewinsky became a witness.
And so what triggers [this is Manager Hutchinson]--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 that [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.
Mr. Manager Hutchinson presented in his very polished and
able presentation a chart. It was exhibit 1. I have taken the
liberty of borrowing it for our own purposes. You see the key
is outlined in detail what happened on December 11. The very
first item is that ``Judge Susan Webber issues order allowing
testimony on Lewinsky.'' The second meeting between Lewinsky
and Jordan, ``leads provided/recommendation calls placed,'' and
then, later, the ``President and Jordan talk about a job for
Lewinsky.''
That is what the chart says. But when you look at the
uncontested facts, this isn't even smoke and mirrors. It is
worse.
First of all, Ms. Lewinsky entered Mr. Jordan's building
for their meeting at 12:57 on December 11. As we see here from
the chart, the entry chart of Mr. Jordan's law firm, Ms.
Lewinsky's name is misspelled, and she identified this as her
entry into the law firm. But this did not spring from,
magically, the entry of the judge's order. It was scheduled 3
days earlier, on December 8. And even that telephone call was
pursuant to an agreement made between Ms. Lewinsky and Mr.
Jordan two weekends before then. It had nothing, whatever, to
do with the judge's order.
Indeed, after her first meeting with Mr. Jordan on November
5, Ms. Lewinsky testified that she had a follow-up conversation
by telephone with Mr. Jordan around Thanksgiving, and he
advised her he was working on the job search as he had time for
it. He asked her to call him back in early December. Mr. Jordan
testified he was out of the country from the day after
Thanksgiving until December 4. He also testified that on
December 5--this is before the witness list--Ms. Currie called
and reminded him that Ms. Lewinsky was expecting his call. He
asked Ms. Currie to have Ms. Lewinsky call him. She does so on
December 8 and they agreed to meet at Mr. Jordan's office on
December 11.
So this meeting, this sinister meeting, was arranged by
three people who had no knowledge whatever about the Paula
Jones witness list at the time they acted. Now, Ms. Lewinsky
herself was also out of Washington for most of the period from
Thanksgiving to December 4, first in Los Angeles and then
overseas.
Inexplicably, but I think significantly, because it says
something about the strength of the case, the House managers
ignore this key piece of testimony that when the meeting was
set up it is uncontradicted. The point is that the contact
between Mr. Jordan and Ms. Lewinsky resumed in December not
because of something having to do with the order, but because
they had agreed it would. The gap is attributable--the gap in
timing--to Mr. Jordan's travel schedule.
Let's look at when this discovery order was entered. It
was, in fact, entered late in the day of December 11 after the
conclusion of a conference call among all the counsel in the
Paula Jones case. We have here on the chart a blowup of the
clerk's minutes.
It is a great accommodation to lawyers when in a case a
judge will have conference telephone calls because it means you
don't have to travel to a different city. There were a number
of these held in the Jones case. This was a conference call
that began, as the clerk's minutes indicate, at 5:33 p.m.
Little Rock time, in the afternoon. That would be 6:33 in
Washington, DC. It ended at 6:50 p.m. in Little Rock, or 7:50
in Washington, DC.
Quite late in the conference call Judge Wright took up
other matters and advised counsel that an order on the
plaintiff's motion to compel testimony had been filed and
Barry--Barry Ward, the judge's clerk--will fax a copy of the
order on that motion to compel counsel. So, some time after
7:50 p.m. counsel get the witness list. Notice that this
proceeding is so late in the day, I don't know if you can see
it, but when the clerk's minutes are filed, they are filed not
on December 11, but on December 12.
Finally, while we don't even have evidence of a telephone
call between the President and Mr. Jordan--we are back now to
Mr. Manager Hutchinson's chart No. 1--we don't have any
evidence that the President, in fact, ever placed a call to Mr.
Jordan on this date. The President was out of the city. But if
the call occurred, it must have occurred by 5:55 p.m.
Let's, again, look at this chart. December 11 is so
important that the managers have put it on the chart twice. It
is the only date on the chart that appears twice. ``The
President and Jordan talk about a job for Lewinsky.'' Clearly
what they are telling you is that first you get the order. That
energizes, that jump starts the process, and then the President
talks to Vernon Jordan. As I said, if a call occurred on that
day, the earliest you could have had any knowledge of the order
would have been 7:50 p.m.
There is a problem, though, when you think that maybe the
President and Vernon Jordan talked on this date, even if we
don't have evidence of it. And the problem is that at 7:50
p.m., Mr. Vernon Jordan was high over the Atlantic Ocean in an
airplane. He was on his way to Amsterdam. He testified that ``I
left on United Flight 946 at 5:55 from Dulles Airport.'' That
is where Mr. Jordan was on the evening of December 11. He had
taken off even before the conference call.
This makes no sense. The managers' theory just makes no
sense. His meeting with Ms. Lewinsky and his calls on her
behalf had taken place earlier in the day. The President could
not have spoken to him about the entry of Judge Wright's
discovery order. The entry of that order had nothing whatever
to do with Mr. Jordan's assistance to Ms. Lewinsky. This claim
of a causal relation totally collapses when you look at the
evidence.
The charts purporting to show causation are also riddled
with errors. I only want to show a few of them. Again, we
borrowed the chart from Mr. Manager Hutchinson, his chart No.
7. Now he showed you this chart and it purports to be an
account of what happened on January 5, 1998. You see how the
President and Ms. Lewinsky appear to be conferring about the
affidavit that she is going to be filing in the Jones case. But
when you look at the real facts, the chart becomes a fiction.
Mr. Manager Hutchinson told you:
Let's go to January 5th. This is a sort of summary of what
happened on that day.
Ms. Lewinsky meets with her attorney, Mr. Carter, for an
hour. Carter drafts the affidavit for Ms. Lewinsky just a few
minutes later . . .
And Mr. Manager Hutchinson continued:
Frank Carter drafts the affidavit. She is so concerned
about it, she calls the President. The President returns Ms.
Lewinsky's phone call.
Now, the suggestion here--and this is our old
circumstantial evidence problem--the suggestion from this fact
pattern is that Ms. Lewinsky obtained a draft affidavit from
her lawyer, Mr. Carter, on January 5, and then in a call with
the President later that day she offered it to him for his
review.
Possible? Yes. True? No. The facts here simply do not bear
out this chart. Why is that? Well, it is because Mr. Carter's
grand jury testimony is very clear that he drafted the
affidavit on the morning of January 6, and he even billed for
it on that morning. He did not draft it, and Ms. Lewinsky did
not have it, on January 5. There is no causation here, no
linkage. The theory on this chart doesn't stand up. And if I
may take something else from the House managers--not simply
their chart, but to borrow Mr. Manager Bryant's expression--
``that dog won't hunt.''
Ms. Lewinsky could not have offered to show the President a
draft affidavit she herself could not have had on January 5.
The idea that the telephone call on that day is about that
affidavit is sheer, unsupported speculation and, even worse, it
is speculation demolished by fact.
Let's kick the tires of another exhibit. Chart No. 8, which
was shown to you by Mr. Manager Hutchinson, purports to
describe the events of January 6. Again, it sets forth a chain
of events which makes it look as though Mr. Jordan was himself
intimately involved in drafting Ms. Lewinsky's affidavit. Mr.
Manager Hutchinson told you, when he showed you this chart--and
I want to quote his exact words:
The next exhibit is January 6. On this particular day, Ms.
Lewinsky picks up the draft affidavit. At 2:08 to 2:10 p.m.,
she delivers that affidavit. To whom? Mr. Jordan. . . . At
3:48, he telephones Ms. Lewinsky about the draft affidavit, and
at 3:49--you will see in red--both agree to delete a portion of
the affidavit that created some implication that maybe she had
been alone with the President.
So Mr. Jordan was very involved in the drafting of the
affidavit and the contents of that.
That is the theory proposed by the chart. That is the
hypothesis they offer on the basis of the circumstantial
evidence. But there are problems that absolutely destroy that
because when we look beyond the suggestive juxtaposition and
consider material overlooked by the managers, a very different
picture emerges.
The key ``fact'' that chart 8 tries to establish is the
statement that at 3:49 Mr. Jordan telephoned Ms. Lewinsky to
discuss the draft affidavit, and they allegedly agreed ``to
delete an implication that she had been alone with the
President.''
There is a very serious difficulty with this ``theory.''
The chart blithely states that ``both agree[d] to delete [the]
implications that she had been alone with the President.'' But
that is not what the evidence shows.
Ms. Lewinsky testified that she spoke to Mr. Jordan because
she had concerns about the draft affidavit. According to her
testimony, when asked whether Mr. Jordan agreed with what were
clearly Ms. Lewinsky's ideas about changes in the affidavit,
Ms. Lewinsky said, ``Yes, I believe so.''
Mr. Jordan recalled the conversation in which Ms. Lewinsky
raised the subject of her draft affidavit. He remembered her
saying that she ``had some questions about the draft of the
affidavit.'' But his testimony was emphatic that he was ``not
interested in the details,'' that the ``problems she had with
what had been drafted for her signature [were] for her to work
out with her counsel,'' and that ``you [Ms. Lewinsky] have to
talk to your lawyer about it.'' And Ms. Lewinsky did talk to
her lawyer about it.
The record is perfectly clear about that. Indeed, it could
not be clearer, although you would not know this from chart 8,
that the idea of deleting the reference to her being alone with
the President came from her own lawyer, Mr. Carter. He
testified to the grand jury--this is the lawyer who actually
drafted the affidavit. He was referring to a passage about Ms.
Lewinsky being alone with the President, and he said:
Paragraph 6 has in its [draft] form as the last part of the
last sentence ``and would not have been a `private meeting,
that is not behind closed doors'. . . .''
According to Mr. Carter:
This paragraph was modified when we sat down in my office
[on January 7], the day after the events described on chart 8.
Mr. Carter further testified that ``before the meeting on
the 7th, it was my opinion that I did not want to give Paula
Jones' attorney any kind of a hint of a one-on-one meeting.
What I told Monica was, `If they ask you about it, you will
tell them about it. But I'm not putting it in the affidavit. I
am not going to give them that lead to go after in the
affidavit, because my objective is not to have you be deposed.'
''
It is clearly Mr. Carter who deleted the reference to being
alone with the President. The bottom line is that the
insinuations on that chart just don't survive scrutiny.
I want to say a final thing about all the charts involving
circumstantial evidence. You remember how many telephone calls
were up on these charts. I am going to let you in on a little
secret--a secret that a lot of you who are lawyers know. It is
pretty easy to get telephone call records and to identify
telephone calls. But it is a common trick to put them up, even
though you don't know what is going on in the telephone calls,
and ask people to assume some insidious relationship between
events and the telephone call. No matter how many telephone
calls are listed on the chart, you don't know, without
testimony, what was happening in that phone call, unless the
mere existence--and there are cases where the mere existence of
a phone call is probative, but not in these cases. Here they
are trying to weave a web, and no particular call is of
significant importance.
The incontrovertible evidence shows that, in fact, Mr.
Jordan spoke to the President on many, many, many occasions. He
was a friend; he has been a friend of the President since 1973,
and a call between them was a common occurrence. When asked in
the grand jury if Mr. Jordan believed that the pattern of
telephone calls to the President was ``striking,'' Mr. Jordan
replied, ``It depends on your point of view. I talk to the
President of the United States all the time, and so it's not
striking to me.''
Mr. Jordan also testified that he never had a telephone
conversation with the President in which Ms. Lewinsky was the
only topic.
The House managers ask you to believe, simply on faith,
that if two things happen on the same day, they are related.
This relation may be logical, but it is not necessarily
factual. I just want to make this point with a couple of
telephone calls. Take Mr. Manager Hutchinson's chart for
January 17, 1998, the day of the President's deposition in the
Jones case.
This chart suggests that there are two calls between Mr.
Jordan and the President after the President had concluded his
deposition. One call is at 5:38, and the other is at 7:02. The
chart does not tell you several important things. First, these
two calls each lasted 2 minutes. Second, and more
significantly, Mr. Jordan testified to the grand jury as to
both telephone conversations:
On Saturday, the 17th, in the two conversations I had with
the President of the United States, we did not talk about
Monica Lewinsky or his testimony in the deposition.
Mr. Jordan was asked:
Or [about] the questions asked of him in the deposition?
And he replied:
That is correct.
In another exchange, the prosecutors asked Mr. Jordan:
Did the President ever indicate to you [in the January 17
telephone conversations] that Monica Lewinsky was one of the
topics that had come up?
Jordan replied:
He did not.
The prosecutors asked:
Did the President ever indicate to you [in these two
conversations] that your name had come up in the deposition as
it related to Monica Lewinsky?
And Mr. Jordan answered:
He did not.
The managers, in the absence of evidence that anyone
endeavored to obtain Ms. Lewinsky a job in exchange for her
silence, indeed, in the face of direct testimony of all of
those involved that this did not happen, ask you to simply
speculate. They ask you to speculate that since they have
thrown a lot of telephone calls up there, they must have some
sinister meaning. And they ask you to speculate that a lot of
those phone calls must have been about Ms. Lewinsky, and they
ask you to speculate further that in one of those unidentified,
unknown phone calls, somebody must have said, ``Let's get Ms.
Lewinsky a job in exchange for her silence.''
There is no evidence for that. It is not there. It is just
a theory.
With regard to all this evidence about the job search, when
you look at these dates, when you have the right chronology in
mind, and when you look at the relevant and uncontested facts,
these facts are there; they don't have to be discovered: There
is no--no--evidence of wrongdoing of any kind in connection
with Ms. Lewinsky's job search effort in New York City. This is
not a case of the managers' presentation resting on even
circumstantial as opposed to direct evidence. They don't even
have circumstantial evidence here. All they have is a theory
about what happened, which isn't based on any evidence either
direct or circumstantial.
Nothing in this evidence is really contested when you get
right down to it; strictly as a matter of who said what to whom
when. When lawyers ask you to ``keep your eye on the big
picture,'' when they ask you, ``don't lose the forest for the
trees,'' or ``don't get lost in the details,'' that is usually
because the details--the stubborn facts--refute and contradict
the big picture.
So it is here. You can keep adding zero to zero to zero for
a very long time, and indeed forever, and you will still have
zero. The big picture here just doesn't exist. And no matter
how many times the House managers keep making the assertion,
there is just no evidence of any kind.
I realize that it has taken us a good bit of time and
painstaking--perhaps even painful--attention for each one of
you to walk through these facts in a lawyerly manner. I am also
keenly aware of the old saying that when all is said and done
with a lawyer, there is more said than done. But we needed to
take a look carefully and specifically at this evidentiary
material with regard to these five grounds in the same way that
Ms. Mills took you through very specifically yesterday with
regard to the other two grounds to try and dispel the popular
misconception that we were either unwilling or unable to rebut
the facts. We have rebutted the facts.
The simple fact is that there is no evidence indirectly to
support the allegation that the President obstructed justice in
his December 17 telephone call with Ms. Lewinsky, in his
statements to his aides, in his statements to Betty Currie with
relation to gifts, or the job search. It sometimes has been
claimed by the managers that we have adopted a ``so what''
defense trying to take lightly or to justify the improper
actions that are at the root of this case. Well, Senators, with
all respect, that argument is easy to assert, but it is false,
a straw man asserted, only to be knocked down.
We have tried in our presentations the last few days and
today to treat the evidence in a fair and a candid and a
realistic way about the facts as the record reveals them. We
have tried to show you that the core charges of obstruction of
justice and perjury cannot be proven. We are not saying that
the alleged conduct doesn't matter. We are saying that perjury
didn't occur, and obstruction of justice didn't happen.
We haven't tried to sugar-coat or excuse conduct that is
wrong. I think that Mr. Manager Buyer used the right phrase
when he referred to ``self-inflicted wounds.'' There is no
doubt that there are self-inflicted wounds here, wounds that
are very real and very painful and very troubling. There is
just no question about that. The question before you is whether
these self-inflicted wounds rise to such a level of lawless and
unconstitutional conduct that they leave you no alternative, no
choice but to assume the awesome responsibility for reversing
the results of two national elections.
On that question, what the situation demands is not
eloquence, which the very able managers have in abundance, but
rather a relentless focus on the facts, the law, and the
Constitution, all of which are on the side of the President.
It is a great honor for me to stand here. This body has
been called ``the anchor of the Republic.'' And it is that
constitutional ability, that political sanity, that is needed
now. There is a story, which is perhaps apocryphal, that when
Thomas Jefferson returned from France where he served as
Ambassador while his colleagues were writing the Constitution,
that he met with George Washington, and he asked Washington why
they had found it necessary to create the Senate. Washington is
said to have silently removed the saucer from his teacup and
poured the tea into the saucer and told Jefferson that like the
act he had just performed, the Senate would be designed to cool
the passion of the moment. Historically, this place has been
really a haven of sanity, balance, wisdom in debating
controversial issues which have been passionately felt, with
candor, with courage, and civility.
So once again, I think it is your responsibility, and yours
alone, committed to you by the Constitution, to make a very
somber judgment. The President has spoken powerfully and
personally of his remorse for what he has done.
Others have pointed out the poisonous partisanship that led
the other body to argue for impeachment on the most narrowly
partisan vote in its history.
I think that the bipartisan manner, however, in which you
have conducted this impeachment trial is a welcome change from
the events of the last year.
We ask only that you give this case and give this country
constitutional stability and the political sanity which this
country deserves. The President did not commit perjury, he did
not obstruct justice, and there are no grounds to remove him
from office.
Thank you.
recess
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we recess the proceedings for 15 minutes, but that Senators be
prepared to resume at 5 minutes after 4, because we have to
hear the eloquence of one of our former colleagues.
There being no objection, at 3:49 p.m., the Senate recessed
until 4:10 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice. I believe the
Senate is prepared now to hear the final presentation to be
made by White House counsel, and at the conclusion of that, I
will have a brief wrapup, a statement to make about how we hope
to proceed on Friday and generally on Saturday. I will do that
at the close of this presentation. I yield the floor, Mr. Chief
Justice.
The CHIEF JUSTICE. The Chair recognizes Mr. Counsel Bumpers
to continue the presentation in the case of the President.
Mr. Counsel BUMPERS. Mr. Chief Justice, my distinguished
House managers from the House of Representatives, colleagues, I
have seen the look of disappointment on many faces, because I
know a lot of people really thought they would be rid of me
once and for all.
[Laughter.]
I have taken a lot of ribbing this afternoon. But I have
seriously negotiated with some people, particularly on this
side, about an offer to walk out and not deliver this speech in
exchange for a few votes.
[Laughter.]
I understand three have it under active consideration.
[Laughter.]
It is a great joy to see you, and it is especially pleasant
to see an audience which represents about the size of the
cumulative audience I had over a period of 24 years.
[Laughter.]
I came here today for a lot of reasons. One was that I was
promised a 40-foot cord. I have been shorted 28 feet. Chris
Dodd said he didn't want me in his lap. I assume he arranged
for the cord to be shortened.
I want to especially thank some of you for your kind
comments in the press when it received some publicity that I
would be here to close the debate on behalf of the White House
counsel and the President.
I was a little dismayed by Senator Bennett's remark. He
said, ``Yes, Senator Bumpers is a great speaker, but he was
never persuasive with me because I never agreed with him.''
[Laughter.]
I thought he could have done better than that.
[Laughter.]
You can take some comfort, colleagues, in the fact that I
am not being paid, and when I finish, you will probably think
the White House got their money's worth.
[Laughter.]
I have told audiences that over 24 years, I went home
almost every weekend and returned usually about dusk on Sunday
evening. And you know the plane ride into National Airport,
when you can see the magnificent Washington Monument and this
building from the window of the airplane--I have told these
students at the university, a small liberal arts school at
home, Hendrix--after 24 years of that, literally hundreds of
times, I never failed to get goose bumps.
The same thing is true about this Chamber. I can still
remember as though it was yesterday the awe I felt when I first
stepped into this magnificent Chamber so full of history, so
beautiful. And last Tuesday, as I returned, after only a short
3-week absence, I still felt that same sense of awe that I did
the first time I walked in this Chamber.
Colleagues, I come here with some sense of reluctance. The
President and I have been close friends for 25 years. We fought
so many battles back home together in our beloved Arkansas. We
tried mightily all of my years as Governor, and his, and all of
my years in the Senate when he was Governor, to raise the
living standard in the delta area of Mississippi, Arkansas and
Louisiana, where poverty is unspeakable, with some measure of
success; not nearly enough.
We tried to provide health care for the lesser among us,
for those who are well off enough they can't get on welfare,
but not making enough to buy health insurance. We have fought
about everything else to improve the educational standards for
a State that for so many years was at the bottom of the list,
or near the bottom of the list, of income, and we have stood
side by side to save beautiful pristine areas in our State from
environmental degradation.
We even crashed a twin engine Beech Bonanza trying to get
to the Gillett coon supper, a political event that one misses
at his own risk. We crashed this plane on a snowy evening at a
rural airport off the runway, sailing out across the snow,
jumped out--jumped out--and ran away unscathed, to the dismay
of every politician in Arkansas.
[Laughter.]
The President and I have been together hundreds of times at
parades, dedications, political events, social events and in
all of those years and all of those hundreds of times we have
been together, both in public and in private, I have never one
time seen the President conduct himself in a way that did not
reflect the highest credit on him, his family, his State and
his beloved Nation.
The reason I came here today with some reluctance--please
don't misconstrue that, it has nothing to do with my feelings
about the President, as I have already said--but it is because
we are from the same State, and we are long friends. I know
that necessarily diminishes to some extent the effectiveness of
my words. So if Bill Clinton, the man, Bill Clinton, the
friend, were the issue here, I am quite sure I would not be
doing this. But it is the weight of history on all of us, and
it is my reverence for that great document--you have heard me
rail about it for 24 years--that we call our Constitution, the
most sacred document to me next to the Holy Bible.
These proceedings go right to the heart of our Constitution
where it deals with impeachment, the part that provides the
gravest punishment for just about anybody--the President--even
though the framers said we are putting this in to protect the
public, not to punish the President.
Ah, 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. And those 400
historians--and I know some have made light about those
historians, are they just friends of Bill?
Last evening, I went over that list of historians, many of
whom I know, among them C. Vann Woodward. In the South we love
him. He is the preeminent southern historian in the Nation. I
promise you--he may be a Democrat, he may even be a friend of
the President, but when you talk about integrity, he is the
walking personification, exemplification of integrity.
Well, colleagues, I have heard so many adjectives to
describe this gallery and these proceedings--historic,
memorable, unprecedented, awesome. All of those words, all of
those descriptions are apt. And to those, I would add the word
``dangerous,'' dangerous not only for the reasons I just
stated, but because it is dangerous to the political process.
And it is dangerous to the unique mix of pure democracy and
republican government Madison and his colleagues so brilliantly
crafted and which has sustained us for 210 years.
Mr. Chief Justice, this is what we lawyers call ``dicta''--
this costs you nothing. It is extra. But the more I study that
document, and those 4 months at Philadelphia in 1787, the more
awed I am. And you know what Madison did--the brilliance was in
its simplicity--he simply said: Man's nature is to get other
people to dance to their tune. Man's nature is to abuse his
fellow man sometimes. And he said: The way to make sure that
the majorities don't abuse the minorities, and the way to make
sure that the bullies don't run over the weaklings, is to
provide the same rights for everybody. And I had to think about
that a long time before I delivered my first lecture at the
University of Arkansas last week. And it made so much sense to
me.
But the danger, as I say, is to the political process, and
dangerous for reasons feared by the framers about legislative
control of the Executive. That single issue and how to deal
with impeachment was debated off and on for the entire 4 months
of the Constitutional Convention. But the word ``dangerous'' is
not mine. It is Alexander Hamilton's--brilliant, good-looking
guy--Mr. Ruff quoted extensively on Tuesday afternoon in his
brilliant statement here. He quoted Alexander Hamilton
precisely, and it is a little arcane. It isn't easy to
understand.
So if I may, at the expense of being slightly repetitious,
let me paraphrase what Hamilton said. He said: The Senate had a
unique role in participating with the executive branch in
appointments; and, two, it had a role--it had a role--in
participating with the executive in the character of a court
for the trial of impeachments. But he said--and I must say
this; and you all know it--he said it would be difficult to get
a, what he called, well-constituted court from wholly elected
Members. He said: Passions would agitate the whole community
and divide it between those who were friendly and those who had
inimical interests to the accused; namely, the President. Then
he said--and these are his words: The greatest danger was that
the decision would be based on the comparative strength of the
parties rather than the innocence or guilt of the President.
You have a solemn oath, you have taken a solemn oath, to be
fair and impartial. I know you all. I know you as friends, and
I know you as honorable men. And I am perfectly satisfied to
put that in your hands, under your oath.
This is the only caustic thing I will say in these remarks
this afternoon, but the question is, How do we come to be here?
We are here because of a 5-year, relentless, unending
investigation of the President, $50 million, hundreds of FBI
agents fanning across the Nation, examining in detail the
microscopic lives of people--maybe the most intense
investigation not only of a President, but of anybody ever.
I feel strongly about this because of my State and what we
have endured. So you will have to excuse me, but that
investigation has also shown that the judicial system in this
country can and does get out of kilter unless it is controlled.
Because there are innocent people--innocent people--who have
been financially and mentally bankrupt.
One woman told me 2 years ago that her legal fees were
$95,000. She said, ``I don't have $95,000. And the only asset I
have is the equity in my home, which just happens to correspond
to my legal fees of $95,000.'' And she said, ``The only thing I
can think of to do is to deed my home.'' This woman was
innocent, never charged, testified before a grand jury a number
of times. And since that time she has accumulated an additional
$200,000 in attorney fees.
Javert's pursuit of Jean Valjean in Les Miserables pales by
comparison. I doubt there are few people--maybe nobody in this
body--who could withstand such scrutiny. And in this case those
summoned were terrified, not because of their guilt, but
because they felt guilt or innocence was not really relevant.
But after all of those years, and $50 million of Whitewater,
Travelgate, Filegate--you name it--nothing, nothing. The
President was found guilty of nothing--official or personal.
We are here today because the President suffered a terrible
moral lapse of marital infidelity--not a breach of the public
trust, not a crime against society, the two things Hamilton
talked about in Federalist Paper No. 65--I recommend it to you
before you vote--but it was a breach of his marriage vows. It
was a breach of his family trust. It is a sex scandal. H.L.
Mencken one time said, ``When you hear somebody say, `This is
not about money,' it's about money.''
[Laughter.]
And when you hear somebody say, ``This is not about sex,''
it's about sex.
You pick your own adjective to describe the President's
conduct. Here are some that I would use: indefensible,
outrageous, unforgivable, shameless. I promise you the
President would not contest any of those or any others.
But there is a human element in this case that has not even
been mentioned. That is, the President and Hillary and Chelsea
are human beings. This is intended only as a mild criticism of
our distinguished friends from the House. But as I listened to
the presenters, to the managers, make their opening statements,
they were remarkably well prepared and they spoke eloquently--
more eloquently than I really had hoped.
But when I talk about the human element, I talk about what
I thought was, on occasion, an unnecessarily harsh, pejorative
description of the President. I thought that the language
should have been tempered somewhat to acknowledge that he is
the President. To say constantly that the President lied about
this and lied about that--as I say, I thought that was too much
for a family that has already been about as decimated as a
family can get. The relationship between husband and wife,
father and child, has been incredibly strained, if not
destroyed. There has been nothing but sleepless nights, mental
agony, for this family, for almost 5 years, day after day, from
accusations of having Vince Foster assassinated, on down. It
has been bizarre.
I didn't sense any compassion. And perhaps none is
deserved. The President has said for all to hear that he
misled, he deceived, he did not want to be helpful to the
prosecution. And he did all of those things to his family, to
his friends, to his staff, to his Cabinet, and to the American
people. Why would he do that? Well, he knew this whole affair
was about to bring unspeakable embarrassment and humiliation on
himself, his wife whom he adored, and a child that he
worshipped with every fiber of his body and for whom he would
happily have died to spare her or to ameliorate her shame and
her grief.
The House managers have said shame, an embarrassment is no
excuse for lying. The question about lying--that is your
decision. But I can tell you, put yourself in his position--and
you have already had this big moral lapse--as to what you would
do. We are, none of us, perfect. Sure, you say, he should have
thought of all that beforehand. And indeed he should have, just
as Adam and Eve should have, just as you and you and you and
you and millions of other people who have been caught in
similar circumstances should have thought of it before. As I
say, none of us is perfect.
I remember, Chaplain--the Chaplain is not here; too bad, he
ought to hear this story. This evangelist was holding this
great revival meeting and in the close of one of his meetings
he said, ``Is there anybody in this audience who has ever known
anybody who even comes close to the perfection of our Lord and
Saviour, Jesus Christ?'' Nothing. He repeated the challenge
and, finally, a little-bitty guy in the back held up his hand.
``Are you saying you have known such a person? Stand up.'' He
stood up. ``Tell us, who was it?'' He said, ``My wife's first
husband.''
Make no mistake about it: Removal from office is
punishment. It is unbelievable punishment, even though the
framers didn't quite see it that way. Again, they said--and it
bears repeating over and over again--they said they wanted to
protect the people. But I can tell you this: The punishment of
removing Bill Clinton from office would pale compared to the
punishment he has already inflicted on himself. There is a
feeling in this country that somehow or another Bill Clinton
has gotten away with something. Mr. Leader, I can tell you, he
hasn't gotten away with anything. And the people are saying:
``Please don't protect us from this man.'' Seventy-six percent
of us think he is doing a fine job; 65 to 70 percent of us
don't want him removed from office.
Some have said we are not respected on the world scene. The
truth of the matter is, this Nation has never enjoyed greater
prestige in the world than we do right now. I saw Carlos Menem,
President of Argentina, a guest here recently, who said to the
President, ``Mr. President, the world needs you.'' The war in
Bosnia is under control; the President has been as tenacious as
anybody could be about Middle East peace; and in Ireland,
actual peace; and maybe the Middle East will make it; and he
has the Indians and the Pakistanis talking to each other as
they have never talked to each other in recent times.
Vaclav Havel said, ``Mr. President, for the enlargement of
the North Atlantic Treaty Organization, there is no doubt in my
mind that it was your personal leadership that made this
historic development possible.'' King Hussein: ``Mr. President,
I've had the privilege of being a friend of the United States
and Presidents since the late President Eisenhower, and
throughout all the years in the past I have kept in touch, but
on the subject of peace, the peace we are seeking, I have
never, with all due respect and all the affection I held for
your predecessors, known someone with your dedication, clear-
headedness, focus, and determination to help resolve this issue
in the best way possible.''
I have Nelson Mandela and other world leaders who have said
similar things in the last 6 months. Our prestige, I promise
you, in the world, is as high as it has ever been.
When it comes to the question of perjury, you know, there
is perjury and then there is perjury. Let me ask you if you
think this is perjury: On November 23, 1997, President Clinton
went to Vancouver, BC. And when he returned, Monica Lewinsky
was at the White House at some point, and he gave her a carved
marble bear. I don't know how big it was. The question before
the grand jury, August 6, 1998:
What was the Christmas present or presents that he got for
you?
Answer: Everything was packaged in the Big Black Dog or big
canvas bag from the Black Dog store in Martha's Vineyard and he
got me a marble bear's head carving. Sort of, you know, a
little sculpture, I guess you would call, maybe.
Was that the item from Vancouver?
Yes.
Question, on the same day of the same grand jury:
When the President gave you the Vancouver bear on the 28th,
did he say anything about what it means?
Answer: Hmm.
Question: Well, what did he say?
Answer: I think he--I believe he said that the bear is
the--maybe an Indian symbol for strength--you know, to be
strong like a bear.
Question: And did you interpret that to be strong in your
decision to continue to conceal the relationship?
Answer: No.
The House Judiciary Committee report to the full House, on
the other hand, knowing the subpoena requested gifts, is that
giving Ms. Lewinsky more gifts on December 28 seems odd. But
Ms. Lewinsky's testimony reveals why he did so. She said that
she ``never questioned that we would not ever do anything but
keep this private, and that meant to take whatever appropriate
steps needed to be taken to keep it quiet.''
They say:
The 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.
She just got through saying ``no.'' Yet, this report says
that is the only logical inference. And then the brief that
came over here accompanying the articles of impeachment said,
``On the other hand, more gifts on December 28th . . .'' Ms.
Lewinsky's testimony reveals her answer. She said that she
``never questioned that we were ever going to do anything but
keep this private, and that meant to take whatever appropriate
steps needed to be taken to keep it quiet.''
Again, they say in their brief:
The 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.
Is it perjury to say the only logical inference is
something when the only shred of testimony in the record is,
``No, that was not my interpretation. I didn't infer that''?
Yet, here you have it in the committee report and you have it
in the brief. Of course, that is not perjury.
First of all, it is not under oath. But I am a trial lawyer
and I will tell you what it is; it is wanting to win too badly.
I have tried 300, 400, maybe 500 divorce cases. Incidentally,
you are being addressed by the entire South Franklin County,
Arkansas Bar Association. I can't believe there were that many
cases in that little town, but I had a practice in surrounding
communities, too. In all those divorce cases, I would guess
that in 80 percent of the contested cases perjury was
committed. Do you know what it was about? Sex. Extramarital
affairs. But there is a very big difference in perjury about a
marital infidelity in a divorce case and perjury about whether
I bought the murder weapon, or whether I concealed the murder
weapon or not. And to charge somebody with the first and punish
them as though it were the second stands our sense of justice
on its head.
There is a total lack of proportionality, a total lack of
balance in this thing. The charge and the punishment are
totally out of sync. All of you have heard or read the
testimony of the five prosecutors who testified before the
House Judiciary Committee--five seasoned prosecutors. Each one
of them, veterans, said that under the identical circumstances
of this case, they would never charge anybody because they
would know they couldn't get a conviction. In this case, the
charges brought and the punishment sought are totally out of
sync. There is no balance; there is no proportionality.
But even stranger--you think about it--even if this case
had originated in the courthouse rather than the Capitol, you
would never have heard of it. How do you reconcile what the
prosecutors said with what we are doing here? Impeachment was
debated off and on in Philadelphia for the entire 4 months, as
I said. The key players were Gouverneur Morris, a brilliant
Pennsylvanian; George Mason, the only man reputedly to be so
brilliant that Thomas Jefferson actually deferred to him--he
refused to sign the Constitution, incidentally, even though he
was a delegate because they didn't deal with slavery and he was
a strict abolitionist. Then there was Charles Pinckney from
South Carolina, a youngster at 29 years old; Edmund Randolph
from Virginia, who had a big role in the Constitution in the
beginning; and then, of course, James Madison, the craftsman.
They were all key players in drafting this impeachment
provision.
Uppermost in their minds during the entire time they were
composing it was that they did not want any kings. They had
lived under despots, under kings, and under autocrats, and they
didn't want anymore of that. And they succeeded very admirably.
We have had 42 Presidents and no kings. But they kept talking
about corruption. Maybe that ought to be the reason for
impeachment, because they feared some President would corrupt
the political process. That is what the debate was about--
corrupting the political process and ensconcing one's self
through a phony election; maybe that is something close to a
king.
They followed the British rule on impeachment, because the
British said the House of Commons may impeach and the House of
Lords must convict. And every one of the colonies had the same
procedure--the House and the Senate. In all fairness, Alexander
Hamilton was not very keen on the House participating. But here
were the sequence of events in Philadelphia that brought us
here today. They started out with maladministration and Madison
said, ``That is too vague; what does that mean?'' So they
dropped that. They went from that to corruption, and they
dropped that. Then they went to malpractice, and they decided
that was not definitive enough. And they went to treason,
bribery, and corruption. They decided that still didn't suit
them.
Bear in mind one thing: During this entire process, they
are narrowing the things you can impeach a President for. They
were making it tougher. Madison said, ``If we aren't careful,
the President will serve at the pleasure of the Senate.'' And
then they went to treason and bribery. Somebody said that still
is not quite enough, so they went to treason and bribery. And
George Mason added, ``or other high crimes and misdemeanors
against the United States.'' They voted on it, and on September
10 they sent the entire Constitution to a committee they called
the Committee on Style and Arrangement, which was the committee
that would draft the language in a way that everybody would
understand--that is, well crafted from a grammatical
standpoint. But that committee, which was dominated by Madison
and Hamilton, dropped ``against the United States.'' And the
historians will tell you that the reason they did that was
because they were redundant, because that committee had no
right to change the substance of anything, and they would not
have dropped it if they had not felt that it was redundant.
Then they put it in for good measure. And we can always be
grateful for the two-thirds majority.
This is one of the most important points of this entire
presentation. First of all, the term ``treason and bribery''--
nobody quarrels with that. We are not debating treason and
bribery here in this Chamber. We are talking about other high
crimes and misdemeanors. And where did ``high crimes and
misdemeanors'' come from? It came from the English law. And
they found it in English law under a category which said
distinctly ``political'' offenses against the state.
Let me repeat that. They said ``high crimes and
misdemeanors'' was to be because they took it from English law
where they found it in the category that said offenses
distinctly ``political'' against the state.
So, colleagues, please, for just one moment, forget the
complexities of the facts and the tortured legalisms--and we
have heard them all brilliantly presented on both sides. And I
am not getting into that.
But ponder this: If high crimes and misdemeanors was taken
from English law by George Madison, which listed high crimes
and misdemeanors as ``political'' offenses against the state,
what are we doing here? If, as Hamilton said, it had to be a
crime against society or a breach of the public trust, what are
we doing here? Even perjury, concealing, or deceiving an
unfaithful relationship does not even come close to being an
impeachable offense. Nobody has suggested that Bill Clinton
committed a political crime against the state.
So, colleagues, if you are to honor the Constitution, you
must look at the history of the Constitution and how we got to
the impeachment clause. And, if you do that, and you do that
honestly, according to the oath you took, you cannot--you can
censor Bill Clinton, you can hand him over to the prosecutor
for him to be prosecuted, but you cannot convict him. You
cannot indulge yourselves the luxury or the right to ignore
this history.
There has been a suggestion that a vote to acquit would be
something of a breach of faith with those who lie in Flanders
field, Anzio, Bunker Hill, Gettysburg, and wherever. I did not
hear that. I read about it. But I want to say, and,
incidentally, I think it was Chairman Hyde who alluded to this
and said those men fought and died for the rule of law.
I can remember a cold November 3 morning in my little
hometown of Charleston, AR. I was 18 years old. I had just
gotten one semester in at the university when I went into the
Marine Corps. So I was to report to Little Rock to be inducted.
My, it was cold. The drugstore was the bus stop. I had to be
there by 8 o'clock to be sworn in. And I had to catch the bus
down at the drugstore at 3 o'clock in the morning. So my mother
and father and I got up at 2 o'clock, got dressed, and went
down there. I am not sure I can tell you this story. And the
bus came over the hill. I was rather frightened anyway about
going. I was quite sure I was going to be killed, only slightly
less frightened that Betty would find somebody else when I was
gone.
The bus came over the schoolhouse hill and my parents
started crying. I had never seen my father cry. I knew I was in
some difficulty. Now, as a parent, at my age, I know he thought
he was giving not his only begotten son, but one of his
begotten sons. Can you imagine? You know that scene. It was
repeated across this Nation millions of times. Then, happily, I
survived that war, saw no combat, was on my way to Japan when
it all ended. I had never had a terrible problem with dropping
the bomb, though that has been a terrible moral dilemma for me
because the estimates were that we would lose as many as a
million men in that invasion.
But I came home to a generous government which provided me,
under the GI bill, an education in a fairly prestigious law
school, which my father could never have afforded. I practiced
law in this little town for 18 years, loved every minute of it.
But I didn't practice constitutional law. And I knew very
little about the Constitution. But when I went into law school,
I did study constitutional law, Mr. Chief Justice. It was very
arcane to me. And trying to read ``The Federalist Papers,'' de
Tocqueville, all of those things that law students are expected
to do, that was tough for me, I confess.
So after 18 years of law practice, I jumped up and ran for
Governor. I served as Governor for 4 years. I guess I knew what
the rule of law was, but I still didn't really have much
reverence for the Constitution. I just did not understand any
of the things I am discussing and telling you. No. My love for
that document came day after day and debate after debate right
here in this Chamber.
Some of you read an op-ed piece I did a couple of weeks ago
when I said I was perfectly happy for my legacy, that during my
24 years here I never voted for a constitutional amendment. And
it isn't that I wouldn't. I think they were mistaken not giving
you fellows 4 years.
[Laughter.]
You are about to cause me to rethink that one.
[Laughter.]
The reason I developed this love of it is because I saw
Madison's magic working time and time again, keeping bullies
from running over weak people, keeping majorities from running
over minorities, and I thought about all of the unfettered
freedoms we had. The oldest organic law in existence made us
the envy of the world.
We have also learned that the rule of law includes
Presidential elections. That is a part of the rule of law in
this country. We have an event, a quadrennial event, in this
country which we call a Presidential election, and that is the
day when we reach across this aisle and hold hands, Democrats
and Republicans, and we say, win or lose, we will abide by the
decision. It is a solemn event, a Presidential election, and it
should not be undone lightly or just because one side has the
clout and the other one doesn't.
And if you want to know what men fought for in World War
II, for example, in Vietnam, ask Senator Inouye. He left an arm
in Italy. He and I were with the Presidents at Normandy, on the
50th anniversary, but we started off in Anzio. Senator
Domenici, were you with us? It was one of the most awesome
experiences I have ever had in my life. Certified war hero. I
think his relatives were in an internment camp. So ask him,
what was he fighting for? Or ask Bob Kerrey, certified Medal of
Honor winner, what was he fighting for? Probably get a quite
different answer. Or Senator Chafee, one of the finest men ever
to grace this body and certified Marine hero of Guadalcanal,
ask him. And Senator McCain, a genuine hero, ask him. You don't
have to guess; they are with us, and they are living, and they
can tell you. And one who is not with us in the Senate anymore,
Robert Dole, ask Senator Dole what he was fighting for. Senator
Dole had what I thought was a very reasonable solution to this
whole thing that would handle it fairly and expeditiously.
The American people are now and for some time have been
asking to be allowed a good night's sleep. They are asking for
an end to this nightmare. It is a legitimate request. I am not
suggesting that you vote for or against the polls. I understand
that. Nobody should vote against the polls just to show their
mettle and their courage. I have cast plenty of votes against
the polls, and it has cost me politically a lot of times. This
has been going on for a year, though.
In that same op-ed piece, I talked about meeting Harry
Truman my first year as Governor of Arkansas. I spent an hour
with him--an indelible experience. People at home kid me about
this because I very seldom make a speech that I don't mention
this meeting. But I will never forget what he said: ``Put your
faith in the people. Trust the people. They can handle it.''
They have shown conclusively time and time again that they can
handle it.
Colleagues, this is easily the most important vote you will
ever cast. If you have difficulty because of an intense dislike
of the President--and that is understandable--rise above it. He
is not the issue. He will be gone. You won't. So don't leave a
precedent from which we may never recover and almost surely
will regret.
If you vote to acquit, Mr. Leader, you know exactly what is
going to happen. You are going to go back to your committees.
You are going to get on with this legislative agenda. You are
going to start dealing with Medicare, Social Security, tax
cuts, and all those things which the people of this country
have a nonnegotiable demand that you do. If you vote to acquit,
you go immediately to the people's agenda. But if you vote to
convict, you can't be sure what is going to happen.
James G. Blaine was a Member of the House when Andrew
Johnson was tried in 1868, and 20 years later he recanted. He
said, ``I made a bad mistake.'' And he said, ``As I reflect
back on it, all I can think about is that having convicted
Andrew Johnson would have caused much more chaos and confusion
in this country than Andrew Johnson could ever conceivably have
created.''
And so it is with William Jefferson Clinton. If you vote to
convict, in my opinion, you are going to be creating more havoc
than he could ever possibly create. After all, he has only 2
years left. So don't, for God's sake, heighten the people's
alienation, which is at an all-time high, toward their
Government. The people have a right, and they are calling on
you to rise above politics, rise above partisanship. They are
calling on you to do your solemn duty, and I pray you will.
Thank you, Mr. Chief Justice.
The PRESIDING OFFICER. The Chair recognizes the majority
leader.
order of procedure
Mr. LOTT. Mr. Chief Justice, I believe that concludes the
White House presentation. I remind all Senators we will
reconvene tomorrow beginning at 1 p.m. On Friday, under the
provisions of Senate Resolution 16, we will begin the question-
and-answer period for not to exceed 16 hours. The majority will
begin the questioning, and as we go forward in that process, we
will alternate back and forth across the aisle. I have
discussed this proposition, obviously, with Senator Daschle,
and we have discussed it in our conferences. We looked at a
number of alternatives, but we thought this would be a fair way
to proceed, that we would begin from this side with a Senator
who will be named and go to the other side, back and forth.
We think this provides fairness. I hope all Members will
entrust the Chief Justice to be fair during this portion of the
deliberations and for the managers and counsel to, of course,
be succinct in their answers and respond to the question that
is actually asked.
At this time, I anticipate approximately 5 hours of
questions and answers being used tomorrow, Friday. We will then
reconvene on Saturday at 10 a.m. and again resume questioning,
alternating back and forth. We have not set any definite time
for Saturday. We will need to see how the questions go. We
don't really know whether we will need 5 hours or 10 hours or
the full 16. But if we reach a point on Saturday where we need
to conclude the day's proceedings and we feel there are still
more questions that will need to be asked, then after
communication on both sides of the aisle we will decide how to
go forward.
It is my hope that we can complete this questioning period
during the day Friday and Saturday and conclude it Saturday. I
hope the Senators will be thoughtful in their questions. They
must be in writing. Please be brief with your written
presentation. Dissertations will not be appreciated in writing
at this point. We will do our best, Mr. Chief Justice, to deal
with the question of repetition or redundancy and try to have
some process that Senator Daschle and I will use to get the
Senators' questions to the Chief Justice.
I thank all Senators for their attention during the past 2
weeks, both in the presentation of the case by the House
managers and the presentation by the White House counsel.
Obviously, the Senators have been here, attentive. We have
listened. I think we have learned a great deal, and I
appreciate the way the Senate has conducted itself.
[The following notice of intent was received on Wednesday,
January 20, 1999:]
Notice of Intent To Suspend the Rules of the Senate by Senators Harkin
and Wellstone
In accordance to Rule V of the Standing Rules of the Senate, I (for
myself and for Mr. Wellstone) hereby give notice in writing that it is
my intention to move to suspend the following portions of the Rules of
Procedure and Practice in the Senate When Sitting on Impeachment Trials
in regard to debate by Senators on any motion to dismiss, any motion to
subpoena witnesses and/or to present any evidence not in the record
during the trial of President William Jefferson Clinton:
(1) The phrase ``without debate'' in Rule VII;
(2) The following portion of Rule XX: ``, unless the Senate shall
direct the doors to be closed while deliberating upon its decisions. A
motion to close the doors may be acted upon without objection, or, if
objection is heard, the motion shall be voted on without debate by the
yeas and nays, which shall be entered on the record''; and
(3) In Rule XXIV, the phrases ``without debate'', ``except when the
doors shall be closed for deliberation, and in that case'' and ``, to
be had without debate''.
______
adjournment until 1 p.m. tomorrow
Mr. LOTT. I move the Senate stand in adjournment under the
previous order.
The motion was agreed to and, at 5:10 p.m., the Senate,
sitting as a Court of Impeachment, adjourned until Friday,
January 22, 1999, at 1 p.m.
------
Friday, January 22, 1999
[From the Congressional Record]
The Senate met at 1:03 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Spirit of the living God, fall afresh on us. We need Your
strength. The wells of our own resources run dry. We need Your
strength to fill up our diminished reserves--silent strength
that flows into us with artesian resourcefulness, quietly
filling us with renewed power. You alone can provide strength
to think clearly and to decide decisively.
Bless the Senators today as they trust You as Lord in the
inner tribunal of their own hearts. You are Sovereign of this
land, but You are also Sovereign of the inner person inside
each Senator. May these hours of questions bring exposure of
truth and resolution of uncertainties. O God of righteousness
and grace, guide this Senate at this decisive hour. You are our
Lord and Saviour. Amen.
The CHIEF JUSTICE. Senators may be seated. The Sergeant at
Arms will make the proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against William Jefferson Clinton,
President of the United States.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, the
Senate is provided up to 16 hours during which Senators may
submit questions in writing directed to either the managers, on
the part of the House of Representatives, or counsel for the
President. The Chair recognizes the majority leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
order of procedure
Mr. LOTT. This afternoon, the Senate will begin the
question-and-answer period for not to exceed 16 hours, as
provided in Senate Resolution 16. I have consulted several
times about this procedure with Senator Daschle and others, and
we have determined that the majority will begin the questioning
process with the first question, and we will then alternate
back and forth.
As I noted yesterday, this has not been done in quite a
while, so we will just have to go forward in a way that we feel
is fair and comfortable. We ask that you give the benefit of
the doubt to us in how we send the questions up to the Chief
Justice. Senator Daschle and I will try to make sure that the
time stays pretty close to even as we go through the day. Of
course, the Chief Justice, I am sure, will make sure the
deliberations and the answers are fair. We hope the answers
will be succinct and that they will respond to the questions.
One question that has arisen from Senators on both sides
is, can we direct a question to both sides, the White House
counsel and the House managers, simultaneously, and the answer
is no. Under our rules, we will direct the question to one side
or the other, and our questions for either side may go to
either one of the parties, but only one can answer that
question.
Of course, there is the possibility for a followup question
that might be directed to one side or the other. We will just
deal with that as we go forward.
I expect, for the information of all Senators, that we will
go approximately 5 hours today. I don't know how many questions
we can get done in an hour, but I suspect by 6 o'clock on
Friday we will have exhausted a series of questions that will
entitle us to a break at that point. But, again, we will just
have to see how we feel about it. We would not stop, obviously,
in the middle of a question.
We will resume again on Saturday at 10 a.m., alternating
between both sides. The schedule at this point is undecided. We
need to see how many questions are left that Senators really
feel need to be asked and, again, we will have to see how the
day progresses.
I did have Senators come up to me yesterday and talk to me
about we need some reasonable limit on that. But I am thinking
in general terms of not going beyond 4 o'clock on Saturday. We
will converse and make those announcements after consultation
as we go forward today or during the day even tomorrow.
I hope we can complete our questioning period by the close
of business tomorrow, but if we go with the times I basically
mentioned, we are talking about 10 hours, not 16. So we will
have to consult and determine if we ask the basic questions or
if we want to continue it later or even over on Monday.
I believe, Mr. Chief Justice, that completes the
explanation I wanted to give at this time.
I do have the first question prepared to send to the Chief
Justice, but I thought perhaps he has some further business he
might want to address before I do that.
The CHIEF JUSTICE. Yes. I would like to advise counsel on
both sides that the Chair will operate on a rebuttable
presumption that each question can be fully and fairly answered
in 5 minutes or less.
[Laughter.]
Mr. LOTT. Mr. Chief Justice, I do send the first question
to the desk.
The CHIEF JUSTICE. Senators Allard, Bunning, Coverdell and
Craig ask the House managers:
Is it the opinion of the House Managers that the President's
defense team, in the presentation, mischaracterized any factual or
legal issue in this case? If so, please explain.
Mr. Manager BRYANT. Mr. Chief Justice, distinguished
colleagues, and Members of the Senate, first of all, let me
thank you for the opportunity to respond to questions. We hope
we can do that in a succinct manner today.
There are a number of mischaracterizations in statements
that we disagree with that the President's defense team made. I
will not attempt to cover all of these. I would like to
highlight just a few of these, and perhaps might, in a short
manner, exceed the rebuttal presumption of 5 minutes.
Mr. Craig made the argument on behalf of the President that
this is a lot about an oath versus oath perjury case. Article I
is the perjury allegation--one word against another person's
word, ``he said, she said.'' However, we submit that there was
not discussed in their presentation the fact that there is
ample corroboration which is provided for under the law as it
being necessary.
But we believe factually there was much corroboration; that
is, another person or other evidence to support the fact that
the President did commit the perjury, and particularly those
aspects of the perjury charge that deal with the personal
relationship that Ms. Lewinsky and the President had.
Very clearly, White House records and phone logs, along
with Ms. Lewinsky's incredible recollection of particular names
and events, and the circumstances surrounding these particular
occasions, that have already been highlighted in the past--and
we all know about those types of telephone conversations. And
she was very clear in the facts. The people have all
corroborated her on her presence in the White House at certain
times.
No. 2, the Secret Service testimony that placed her inside
the Oval Office, on occasion alone; the fact that there have
been contemporaneous statements made by Ms. Lewinsky describing
the details of this relationship--and as we all know, the law
permits this contemporaneous statement--to, in this case, at
least eight friends and two professional counselors detailing
the particular relationship while it was ongoing.
The blue dress is very clearly corroboration, and the DNA
testing that resulted from that. Also, the transfer of Ms.
Lewinsky from the White House, and the later surreptitious
efforts with Ms. Currie to sneak her back into the White House,
again, indication that efforts had been made to move her, to
relocate her, away from the President to protect him from those
circumstances.
Also, the President's prepared statement in the grand jury
is another example that was not mentioned. And in particular, I
highlight the statement that he made that would lead you to
believe this relationship evolved over a period of time, and
being that he was sorry that what had started out as a
friendship turned into this type of relationship, where, in
fact, Ms. Lewinsky's testimony is very clear that that
relationship began immediately, the very first day that he
actually spoke to her.
Mr. Ruff's statement that the managers' case was misleading
is also incorrect, I believe. He used words like ``fudging the
facts,'' ``a witches' brew,'' and ``be wary of a prosecutor who
feels like he must deceive the court.'' This comes as somewhat
of a surprise to many of us at this table who know that Mr.
Ruff is familiar with the facts of this case.
Just last month, when he testified before the Judiciary
Committee, he said: I have no doubt that the President walked
up to that line that he thought he understood. Reasonable
people--reasonable people--and you may have reached that
conclusion that he could have crossed over that line and that
what for him was truthful but misleading or nonresponsive or
misleading and evasive was in fact false.
He didn't tell you in his presentation that just a month
ago he took the position that reasonable people can disagree,
and yet before this Senate, and the audience that we have
watching, he asserts that anyone who would accuse his client of
perjury is guilty of ``fudging the facts,'' ``brewing a
witches' brew,'' and ``deception.'' And even Mr. Craig,
unfortunately, borrowed many of those same words in that
characterization. It may be good theater, but it is simply not
the case that these managers are engaged in that type of
practice before the Senate and the American people.
White House Counsel Cheryl Mills spoke in a similar manner
and tone to this House about inconvenient and stubborn facts--
oh, those stubborn facts. In her meticulous presentation, she
passed over--she completely missed--the second occasion wherein
President Clinton attempted to coach Ms. Currie.
Did anyone hear about the second event? As carefully as she
tried to make innocent the wrongful effort of the President to
tamper with the potential witness, she just as carefully
skirted the entire similar episode 2 or 3 days after the first
one where he again tampered with her testimony. According to
Ms. Currie, spoke with her, just recapitulating. Remember that
in our presentation?
Likewise, in her review of witness tampering, she
mischaracterized the law stating that an actual threat was
required. 18 U.S.C. 1503 states that obstruction of justice
occurs when a person corruptly endeavors to influence the
testimony of another person. And ``corruptly'' has been
interpreted by the District Court in the District of Columbia
to mean acting for an improper purpose.
Clearly, this was an improper purpose when the President
was trying to get her to testify falsely, but a threat is not a
part of the law and not needed.
I will quickly mention two more.
Mr. Ruff stated the President gave the same denial to his
aides that he gave to his country and family. You recall him
specifically saying that he said nothing different to the
American public and his family than he told the aides whom we
talked about--John Podesta, Sidney Blumenthal.
That's not right. ``He told''--the President told Mr.
Podesta--and this is Mr. Podesta talking--``He told me that he
never had sex with her and that he never asked--you know, he
repeated the denial. But he was extremely explicit in saying he
never had sex with her in any way whatsoever, that they had not
had oral sex.''
He told Mr. Blumenthal an entirely different story, that
``Monica Lewinsky came at me and made a sexual demand on me.
[And I, the President,] rebuffed her.'' He said that ``I've
gone down that road before [and] . . . caused pain for a lot of
people and I'm not going to do that again.''
``She threatened him.'' Ms. Lewinsky threatened the
President. And ``[s]he said that she would tell [other] people
[that she] had an affair, that she was known as a stalker among
her peers, and that she hated [that], and if she had an affair
. . . [with the President] she wouldn't be . . . anymore.''
That is not the story that he told the American people and
his family. These are embellishments that are very important
because he anticipated that they would go into the grand jury
and repeat those misstatements.
And finally, the affidavit of Monica Lewinsky. White House
defense lawyers spoke so eloquently about the procurement of
this affidavit--as he glided through how the President believed
that Monica Lewinsky could have filed a truthful affidavit
while still skirting their sexual relationship sufficiently to
avoid testifying in the Paula Jones case.
This is an important issue. As it was specifically raised
in the answer before this Senate, the President's lawyers
brought this statement into this Senate as part of their answer
that he could have advised her that she could have filed an
affidavit that would have been truthful while still at the same
time denying a sexual relationship sufficiently that she would
not be called as a witness.
I know opposing counsel makes light of the hairsplitting
and the legal gymnastics that people have talked about here,
but that is an incredible statement that you can do the twister
enough to go into a deposition where the purpose of being there
is to discover this type of information, who you might have had
an affair with, and have her tell a truthful affidavit and
still not to be able to testify.
Had she told a truthful affidavit, she would have been
immediately called. Plus, the President was given an
opportunity by Ms. Lewinsky to review the affidavit.
Remember the statement that he didn't need to, he had seen
15 just like it? If he had that ``out'' for her where she could
have told the truth and still not been able to testify, don't
you think he owed it to her to cause her not to have to commit
perjury in that affidavit--which she did--not to have to commit
a crime? Wouldn't he have shared that with her if he had that
information at that time?
I suggest that he didn't. I have others that I would like
to talk to, but in the interest of time and fairness, I will
stop my presentation at this point.
I thank the Senate.
Mr. DASCHLE. Mr. Chief Justice.
The CHIEF JUSTICE. I recognize the minority leader.
Mr. DASCHLE. Can I inquire as to the length of time that
response took.
The CHIEF JUSTICE. Approximately 9 minutes.
Senator Sarbanes asks:
Would you please comment on any of the legal or factual assertions
made by the managers in their response to the previous question from
Senators Allard, Bunning, Coverdell, and Craig?
Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
It may be that I will need to call on some of my colleagues
to be of assistance here, but let me begin, and we will strive
mightily to stay within the rebuttal of 5 minutes.
Mr. Manager Bryant began by suggesting that there really is
corroboration on the key issue that he focussed on, which as
you know, is the nature of the specific details of the
relationship between the President and Ms. Lewinsky. And he
suggested that among the corroborating matters that he would
point to were her recollection of events, which is alleged to
be detailed; records reflecting that she was, indeed, in the
White House on particular days; Secret Service records; DNA
testing. None of those have anything to do with the essential
issue that Congressman Bryant raised, because nobody disputes
the fact that Ms. Lewinsky was in the White House engaged in
inappropriate conduct with the President on a particular day.
The only point that I think the manager raises that is new
and needs to be addressed is this notion that contemporary,
consistent statements made to third parties about these events
are somehow corroborative of Ms. Lewinsky's testimony in this
regard. And as all of you who had the pain of suffering through
an evidence course will know, or have had the pain of trying
lawsuits in which this issue arises, so-called prior consistent
statements are not, in fact, viewed as some corroborating
evidence that can be introduced by the prosecutors in this
Senate; for they know, and I am sure those of you who suffered
through these pangs know, as well, that the law rejects the
notion that merely because you tell the same story many times
it is corroborative of the underlying credibility of the
witness' version, and that there are only certain very limited
areas in which prior consistent statements are, in fact,
admissible.
A couple of others and I will turn this briefly over to Ms.
Mills.
Manager Bryant suggests that I have somehow gone too far in
suggesting that the prosecutors here have, in my words,
``engaged in fudging.'' I have never suggested that the entire
presentation is so, and I made very clear in my comments to the
Senate the other day the specific examples which I think we
documented quite fully. But beyond that, let me go back to his
reference to my earlier testimony before the House Judiciary
Committee in which I did, indeed, in response to questions,
comment that the President may well have walked up to the line
believing he didn't cross it, but that reasonable people might
conclude otherwise.
The only problem with that example, as broached by Mr.
Manager Bryant, is that I was talking there--and the record is
very clear--I was talking about his testimony in the Jones
deposition which, as everyone in this room will fully
understand, is not before you because the House of
Representatives specifically decided that the President's
testimony in the Jones deposition was not a basis for
impeachment.
With that, without having used, I hope, all of my time, Mr.
Chief Justice, I will allow Ms. Mills, if she would, to come
forward and respond specifically to the point raised with
respect to her presentation.
Ms. Counsel MILLS. Thank you.
I just want to address briefly two issues that the House
managers raised. With regard to the statute on obstruction of
justice, with respect to witness tampering, the House managers
focused on 1512, with respect to Ms. Currie which does require
a threat or intimidation and, indeed, specifically addressed
that--they wanted to focus on 1512--when they were addressing
her and the situation where the President spoke with her.
With regard to 1503, though, to the extent the House
managers suggest that the President's actions and his
conversation with Ms. Lewinsky violated 1503, I think probably
you all might recall from my presentation that we discussed the
Aguilar case in which it is clearly necessary that you have a
nexus between the actual conduct and the official proceeding
that would be going forward. In that case, we had a judge who
lied to an FBI agent who indicated that this might come up in a
grand jury proceeding, and Mr. Chief Justice, in his opinion,
indicated that was insufficient to find the nexus that was
necessary to violate 1503.
If you all have my package, you can look back. I provided
you with a specific quotation. So in this instance, we clearly
wouldn't have the nexus between the President's conversation
with Ms. Currie, who was not yet a witness. There was no
suggestion that she was going to be a witness in the Jones
case; indeed, no one even mentioned that fact to him, as you
actually did have in Aguilar.
In addition, with regard to both statutes, the specific
intent is not fulfilled. That is something we spoke about when
I gave my presentation before.
With regard to the President's conversation with Ms.
Currie, which happened on the 18th and again on a subsequent
day, in that instance it also happened prior to all of the
media attention and other matters that came out. So in effect,
all of the same issues apply because there was no--at that
point--no indication that the independent counsel was involved
in this matter, and the President still was concerned about the
Jones proceeding; indeed, he was concerned that the media
attention would be significant, and he was accurate as it began
to grow and grow.
Thank you.
Mr. LOTT. Mr. Chief Justice, we send our next question to
the desk.
The CHIEF JUSTICE. Senators Enzi and Coverdell ask the
House managers:
Please elaborate on whether the President's defense team failed to
respond to any allegations made by the House managers.
Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and
gentlemen of the Senate, as to the areas that were not covered
by the President's defense team, I think that my fellow Manager
Bryant already mentioned one, but I thought it was significant
that in the questioning of Ms. Currie, or the statements made
to Betty Currie after the President's deposition on January 17
where he brought her into the office and he went through that
series of questions--``I was never alone, right,'' and that
series of questions everybody is so familiar with, they
discussed that primarily in the terms that she was not a
witness. But during 3 days of presentation they never discussed
the fact that it was 2 days later that the same series of
questions or statements or coaching were addressed to Ms.
Currie.
So the President's defense that, ``Well, I was just trying
to refresh my recollection on the facts so I could respond to
media inquiries,'' does not make sense in light of the fact
that it was done on one day--the series of questions. But Betty
Currie testified that 2 days later she was called into the
office, the same series of statements, declarations, coaching
was made to her, and the only possible explanation for that is
that the President was trying to make a very clear statement to
her--``This is what I remember; this is what I want you to
do,'' and for 3 days, for 3 days of presentations, the
President's defense lawyers never, never mentioned that.
I want to come back to what Ms. Mills just said because
this was a big issue in the presentation of Mr. Ruff. In fact,
I have the quotes here. I hope that will be turned over to you.
But whenever Betty Currie was questioned, they say, well, she
wasn't a witness. There was never any clue she was going to be
a witness, that the Jones lawyers never anticipated she was
going to be a witness, and that it was never put at all on the
witness list. That's very significant.
I just want to drive this point home. This is Mr. Ruff--
talk about prosecutorial fudging; how about defense fudging?
Mr. Ruff said this:
Ms. Currie was neither an actual nor prospective witness.
In the entire history of the Jones case, Ms. Currie's name had not
appeared on any witness list, nor was there any reason to suspect that
Ms. Currie would play a role in the Jones case.
Discovery was down to its final days.
That was Counsel Ruff.
Yet, in the days and weeks following the deposition, the Jones
lawyers never listed her, never contacted her, never added her to any
witness list.
That was the presentation of Mr. Ruff, and it was also that
of Ms. Mills. Yet, if you look at the facts in the Jones case,
the deposition was concluded on January 17. There was a holiday
on the 18th. In fact, on January 22, within 5 days of the
deposition, a subpoena was issued for Betty Currie. Within 5
days, a subpoena was issued for Betty Currie, and, in fact, on
the 23rd, there was a supplement to the witness list by the
Jones lawyers, which included Betty Currie's name as 163. This
was served on Mr. Bennett and the other lawyers for the
President.
In addition, I have--which I will distribute to you--the
actual subpoena that was issued for Betty Currie, as I
indicated, on January 22, and the proof of service in which
Betty Currie was served as a witness in that case on January
27--the proof of service. So the statements by Mr. Ruff that
there was never any indication that the Jones people knew she
was going to be a witness is totally not within the record. In
fact, it is clear that the subpoena was issued; it was served.
Whenever that deposition of the President was over, both
the President left there and the Jones lawyers left there
knowing immediately that Betty Currie was going to be a
witness. She had to be a witness, with the President asserting,
``ask Betty, ask Betty, ask Betty,'' so many times during that
deposition. That is why the President came back and had to deal
with Betty Currie being a witness, and the Jones lawyer went
out and immediately amended the witness list so as to do that,
and then issued a subpoena, which was served on Betty Currie.
That is the record. Those are the facts. We will distribute
this to you.
The CHIEF JUSTICE. Senator Levin asks White House counsel:
Would you please comment on any of the legal or factual assertions
made by the managers in their response to the previous question?
Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Let me
respond very briefly to Manager Hutchinson's last remarks,
because I owe him indeed an explanation and he is correct in
one respect. I did not accurately reflect the fact that after
the January 21 story in the Washington Post, the Jones lawyers
did, in fact, attempt to track the entire independent counsel
investigation. And I think Mr. Hutchinson will tell you, they
indeed issued a long list of subpoenas. For that misleading
statement, I apologize, and I trust we will hear equally candid
assessments from the managers. But more importantly, let me
return to the substance of that issue because it is important
to note, without the chart being up there, that indeed, at the
moment, which is the critical moment, when the President was
talking about Betty Currie, whether it be on the 18th or on the
20th or 21st--the 21st, you remember, is when the story breaks.
The answer is the same. He had no reason to believe at that
stage--and that is the critical stage because that is what's in
his mind and that is what you have to ask if you are talking
about obstruction of justice or witness tampering--at that
stage, he had no more reason to know that Ms. Currie was going
to be a witness than he did, as we explained it, both I and Ms.
Mills, in our earlier presentations.
The fact that the Jones lawyers, once this story became a
matter of public knowledge, which it did on the 21st,
thereafter dumped a series of subpoenas and deposition notices
literally in the closing days of discovery does not bear on the
question of what was in the President's mind, which is the
critical moment for testing his intent, at the moment when he
first had his conversations with Betty Currie.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Senators Thurmond, Grassley, Chafee and
Craig direct to the House managers:
President Clinton has raised concerns about whether the articles of
impeachment are overly vague and whether they charge more than one
offense in the same article. How do you respond to this concern?
Mr. Manager CANADY. Mr. Chief Justice and Members of the
Senate, I will be pleased to do my best to address this
question.
The President has made two claims against the forum in
which the articles of impeachment have been drafted. I submit
to you that neither of these claims has any merit, and I will
be pleased to address both claims as briefly as I can.
First, the President claims that the two articles of
impeachment are vague and lack specificity and, therefore,
prevent him from knowing with what he has been charged.
Second, the President asserts that the articles are flawed
because they charge multiple offenses in a single article. With
respect to the first claim, it is clear in the President's
trial memorandum and his presentation here that President
Clinton and his counsel know exactly what he is being charged
with. And I submit to you that if President Clinton had
suffered from any lack of specificity in the articles, he could
have filed a motion for a bill of particulars. He did not
choose to do so.
Moreover, articles of impeachment have never been required
to be drafted with the specificity of indictments. After all,
this proceeding is not a criminal trial. If it were, then we,
as the prosecutors, would not only be entitled to call
witnesses, but would be required to call them to prove our
case. We would certainly not be put in the position of
defending the appropriateness of witnesses.
President Clinton wants all the benefits of a criminal
trial without bearing any of its burdens. Impeachment is a
political and not a criminal proceeding. That has been clear
from the institution of this proceeding in our Constitution. As
recognized by Justice Joseph Story, the Constitution's greatest
interpreter during the 19th century, ``Impeachment is designed
not to punish an offender by threatening deprivation of his
life, liberty, or property, but to secure the State by
divesting him of his political capacity.'' Justice Story thus
found the analogy of articles of impeachment to an indictment
to be invalid. I quote what Justice Story had to say, which is
directly pertinent to this question:
The articles need not and indeed do not pursue the strict form and
accuracy of an indictment. They are sometimes quite general in the form
of the allegations, but ought to contain certainty as to enable the
party to put himself upon the proper defense, and also in the case of
acquittal, to avail himself of it as a bar to another impeachment.
Indeed Alexander Hamilton had commented on the same point
in ``The Federalist.'' We have heard many references to
Federalist No. 65, and in this trial today I will refer once
again to what Alexander Hamilton said in ``The Federalist'' on
this particular point. There Alexander Hamilton stated that
impeachment proceedings:
. . . 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 served to limit the discretion
of courts in favor of personal security.
By that, he means in criminal cases. I think this statement
from Alexander Hamilton refutes the argument of the President's
counsel directly.
I also point out that unlike the judicial impeachments in
the 1980s, President Clinton has not committed a handful of
specific misdeeds that can be easily listed in separate
articles of impeachment. In order to encompass the whole
assortment of misdeeds that caused the House of Representatives
to impeach the President, the Judiciary Committee looked to the
more analogous case, that of President Nixon. In 1974, in the
proceedings with respect to President Nixon, the committee also
was faced with drafting articles of impeachment of a reasonable
length against a President who had committed a series of
improper acts designed to achieve an illicit end.
The first article against President Nixon charged that in
order to cover up an unlawful entry into the headquarters of
the Democratic National Committee and to delay, impede, and
obstruct the consequent investigation and for certain other
purposes, he engaged in a series of acts such as ``making or
causing to be made false or misleading statements to lawfully
authorized investigative officers, endeavoring to misuse the
Central Intelligence Agency, and endeavoring to cause
prospective defendants and individuals, duly tried and
convicted, to expect favored treatment and consideration in
return for their silence or false testimony.
The articles did not--I repeat ``did not''--list each false
or misleading statement, did not list each misuse of the CIA,
and did not list each respective defendant and what they were
promised. That is the record. Anyone who is familiar with the
Nixon case--President Nixon case--is familiar with those facts.
In like fashion, the articles of impeachment against
President Clinton charged him with providing perjurious, false,
and misleading testimony concerning four subjects, such as
sexual relations with a subordinate government employee,
engaging in a course of conduct designed to prevent, obstruct,
impede the administration of justice, which of course included
four general acts, such as an effort to secure job assistance
for that employee.
I submit to you that an argument can be made that the
articles of impeachment against President Clinton were drafted
with more specificity than the articles that were drafted
against President Nixon.
I will do my best to briefly address the second claim which
has been asserted by the President's lawyers against the form
of the articles of impeachment; that is, that they are invalid,
charging multiple offenses in one article. The articles of
impeachment allege that President Clinton made one or more
perjurious, false and misleading statements to the grand jury
and committed one or more acts in which he obstructed justice.
Once again, these articles are modeled after the articles
adopted by the House Committee on the Judiciary against
President Nixon and were drafted with the rules of the Senate.
Specifically in mind, the Senate rules explicitly contemplate
that the House may draft articles of impeachment in this manner
and prior rules of the Senate have held that such drafting is
not sufficient and will not support a motion to dismiss.
Rule XXIII of the Rules of Procedure and Practice in the
Senate When Sitting On Impeachment Trials now states that an
article of impeachment ``shall not be divisible for the purpose
of voting thereon at any time during trial.'' When the Senate
Committee on Rules and Administration amended rule XXIII in
1986, it explained that. And I quote this at length. And this
goes right to the heart of the matter. This is what the Rules
Committee in its report said. It said:
The portion of the amendment effectively enjoining the division of
an 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 M. 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. . . . [I]t was agreed to write into the proposed rules
language which would allow each Senator to vote to convict under either
the first or second articles if he were convinced that the person
impeached was `guilty' of one or more of the enumerated
specifications.''
The Senate rules themselves, thus, specifically contemplate
that an article of impeachment may include multiple
specifications of impeachable conduct as in the case of
President Nixon. The Senate itself has recognized the articles
against President Nixon as an appropriate model to be followed.
The House has, in the articles now before the Senate, simply
followed that model.
Moreover, I point out in conclusion that the Senate has
convicted a number of judges on such omnibus articles,
including Judges Archibald, Louderback and Claiborne.
I submit to the Members of the Senate that the articles of
impeachment against President Clinton present his offenses and
their consequences in an appropriately transparent and
understandable manner. They are not constitutionally deficient.
Thank you.
The CHIEF JUSTICE. This question is sent by Senators Dodd
and Leahy:
Would you please comment on any of the legal or factual assertions
made by the managers in their response to the previous question by
Senators Thurmond, Grassley, Chafee, and Craig; particularly what would
have stopped or limited the House in specifying precisely the
statements on which the articles were based?
Mr. Counsel CRAIG. In our case, we are talking about an
allegation of perjury. In the Nixon case--in the 1974 Nixon
case--he was not charged with perjury. I think our argument was
that perjury is a different kind of thing. You have to be very
specific in what you charge, and you have to be very clear as
to what the statement is when you are charging perjury. And
that is the tradition of our criminal justice system and of our
jurisprudence.
The danger here is that if you do not, if you are overly
broad, as we contend in article I, that at any given moment you
can fill the vessel with what your meaning is.
Let me give you a little history of these allegations of
grand jury perjury against the President.
The Starr referral had three allegations. The Starr
referral was September 9. Mr. Schippers, when he made his
presentation to the Judiciary Committee, had two allegations.
One was different. He incorporated one of Starr's. When Starr
appeared and testified on November 19 in front of the Judiciary
Committee, he almost spent no time on this at all--one or two
sentences. But he added a new charge, which was that the
President was not truthful when he testified that he had been
truthful in the deposition.
Then, we appeared and made our representations and our
defense on behalf of the President on the basis of what Mr.
Starr had written in his referral and what Mr. Schippers had
presented to the Judiciary Committee and in addition to what
Mr. Starr had said when he appeared. But then when Mr.
Schippers gave his closing argument the following day, we saw
the new articles. We had, by my count, 10 allegations from Mr.
Schippers. Two had to do with the definition of sexual
relations. Three had to do with the prepared statement. Two had
to do with things that were never alleged again and never
surfaced again in the course of the case. And they had to do
with Mr. Bennett and his proffer of the Lewinsky affidavit.
Then, on December 16 we had a whole new additional
collection of reports of allegations. And on January 11, the
file brief here set forth eight examples.
Just to highlight the danger of not being specific, of not
tying yourself to a definition, let me compare, for example,
the trial brief that was submitted by the House managers 3 days
before Mr. Rogan made his presentation.
The precise statement that the President is accused of
testifying falsely in front of a grand jury was that he was
lying when he said that the reason he was seeing Betty Currie
was to refresh his recollection. In the trial brief--they make
that reference one, two, three, four times--that the statement
that is specific here in the trial brief is he lied when he
said he was going to refresh his recollection. That is not even
mentioned in Mr. Rogan's presentation. He changes it. And he
says he lied when he said he wanted to ascertain what the facts
were, trying to ascertain what Betty's perception was--a very
different statement requiring a very different defense. And 2
days before, 3 days before we even hear the allegations on the
floor of the Senate, we still don't know precisely what they
are.
Mr. Counsel RUFF. Mr. Chief Justice, if I may absorb
whatever rebuttal time is still available to us, may I for just
a moment, sir?
The CHIEF JUSTICE. Sure.
Mr. Counsel RUFF. Thank you.
I want to talk briefly about two aspects of Manager
Canady's presentation.
First of all, he asks why didn't we seek a bill of
particulars. Let me remind all the Senators, although I don't
think any of you were here at the time of the trial of Judge
Louderback who also saw a bill of particulars, and the House of
Representatives at the time made it clear that the managers do
not have the authority to rewrite the articles, though they
certainly have, I suggest, attempted to do so on the fly, but
that it would have required a remand to the House of
Representatives in order to have a bill of particulars to judge
what they themselves meant when they had passed these articles.
Second, just very briefly, I spoke to the issue of
multiplicity, duplicity, the other day, and the question of
whether the rule XXIII revision makes any difference. As I
pointed out--and I won't embarrass him any further--one Member
of this body spoke at length about the importance of not
loading up multiple offenses into one count well after the
revision of rule XXIII, clearly with no sense that this body
had been precluded from dealing with the critical issue of
whether a two-thirds vote can sensibly be taken on an article
that contains multiple and, particularly as my colleague, Mr.
Craig, indicated, multiple nonspecific violations.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Senators Thompson and Grassley,
Thurmond, Allard, Frist, Burns, and Inhofe direct this question
to the President's counsel:
If the President were a Federal judge accused of committing the
same acts of perjury and obstruction of justice and the Senate found
sufficient evidence that the acts alleged were committed, should the
Senate vote to convict?
Mr. Counsel RUFF. This will sound halfhearted, but it is
not. I am glad you asked that question. This really goes right
to the heart of the managers' argument here, which is that
there is no difference in the consideration of the impeachment
process between an allegation against a Federal judge and an
allegation against the President of the United States.
I will not repeat the extended discussion of this subject
of a few days ago, but let me try to summarize very briefly. It
is absolutely crystal clear from the history of the drafting of
the impeachment clause that the concern of the framers was, Is
there such action as to subvert our Government that we can no
longer persist in permitting, in their case, the President of
the United States to remain in office? That question must be
dramatically different when you ask it about the conduct of 1
of 1,000 judges.
Beyond that, it is also clear that there has been extended
debate in many forums and at many times in the past 210 years
about, indeed, just what the standard is for the impeachment of
judges.
I hesitate to do this, and I do it apologetically, Mr.
Chief Justice, but the Chief Justice himself in an earlier time
and an earlier guise spoke to this issue and made it clear--
this during his tenure as assistant attorney general for the
Office of Legal Counsel--when the issue was being debated
whether there was a nonconstitutional, nonimpeachment device
for disposing of judges alleged to have engaged in misconduct
that may not fall within the high crimes and misdemeanors
provision of the impeachment clause, that, indeed, the good
behavior standard for judges was something far broader than the
standard to be applied under the high crimes and misdemeanors
standard. And, indeed, that debate was resumed many years later
in the context of a further effort to establish a
nonconstitutional device for removing judges.
That history, and just the core question, do you ask the
same questions about the trauma the Nation suffers when you are
removing a judge and you are removing a President, the answer
must be no. You must ask, What is the nature of the perjury
that has been committed? What is the nature of the offense that
has been committed? What is the factual setting in which it
occurs? And, ultimately, does it so subvert the accused's
ability to perform the duties of his office that you must
remove him?
That question for Judge Nixon, convicted and imprisoned,
has to be different from--``different'' is much too mild a
word--stunningly different from the question you ask against
the backdrop of our history when you ask whether the President
of the United States should be removed and the will of the
electorate overturned.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Senators Dorgan and Baucus and Schumer
to the President's counsel:
In Counselor Ruff's presentation, he set forth a time line that
undermined the managers' theory that Judge Wright's December 11
discovery letter triggered an intensification of the President's and
Jordan's efforts to assist Lewinsky in finding a job. In response to
Mr. Ruff's presentation, the managers handed out a press release
outside the Senate Chamber asserting that it was the December 5
issuance of the witness list in the Jones case and not the judge's
discovery order on the 11th that triggered the intensification of the
job search. It does not appear consistent with assertions made by the
House managers in their trial brief and oral presentations. Please
comment.
Mr. Counsel KENDALL. It was the assertion very clearly
voiced in Mr. Manager Hutchinson's presentation and very
clearly made in the trial brief of the House managers that it
was, indeed, the December 11 order that--I used the word
``jump-started'' yesterday--that catalyzed, that pushed
forward, the job search.
If you look at page 21 of the House managers' brief, you
see them say this sudden interest was inspired by a court order
entered on December 11, 1997. Now, their position could not
have been clearer until we began our presentations, and then,
all of a sudden, it wasn't the December 11 order; it was,
instead, the December 5 witness list.
There are a number of things to be said about that. One of
them is that they have very clearly said that there was no
urgency at all after the witness list arrived to help Ms.
Lewinsky. They have said that Mr. Jordan met with the President
on December 5 but that meeting had nothing to do with Ms.
Lewinsky. This was in the majority report at page 11. They said
that very clearly.
Because it has been clear that the December 11 order was
entered at a time when Mr. Jordan was flying to Europe, he
could not have known about it. He had met with Ms. Lewinsky
earlier that day. And, indeed, that December 11 meeting had
sprung from actions taken by Ms. Lewinsky in a phone call with
Mr. Jordan in November. They agreed that when Mr. Jordan
returned to the country, they would set up a meeting. They did
that on December 5, or she tried to get in touch on December 5.
They finally succeeded in getting in touch on December 8, and
that was not at a time she knew she was on the witness list.
So the point is these were two entirely separate chains of
events going forward--the job search and the witness list. And
nothing supports the intensification theory presented by the
managers, certainly not this new, ``Well, it wasn't the
December 11th order; it was the December 5th order.''
The CHIEF JUSTICE. Senators Ashcroft and Hatch--is there
anyone on the floor who can't hear me? This is for the House
managers:
The White House makes much of the fact that Vernon Jordan was on a
flight to Holland on December 11 before Judge Wright ruled that
afternoon that other women who may have had relationships while in
President Clinton's employ were relevant to the Jones suit. However,
the President was faxed a witness list on December 5 and actually
reviewed it no later than the 8th. Thus, isn't the White House argument
that the President had no incentive to assist Ms. Lewinsky's job search
until December 11 just a red herring?
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. And I
appreciate the opportunity to respond here.
Just let me say, by way of preface, that we are lawyers. We
are trying to do three things at once. Usually you have an
opening statement where you outline where you want to go in a
case, then you have a presentation of the evidence, then you
have a closing argument. And we are trying to do it all at the
same time.
It is for that reason, as I said at the very beginning of
my presentation, that you need to pay attention to the record
and to the facts. That is what you depend upon. And I get
carried away in my argument. I am arguing, just as they are
arguing their theory of the case. We are both arguing a point
of view here, and it is up to you to make the determination.
I have great respect for these counselors. They are
admirable. They are doing a great job for their client, and
they are presenting their theory of the case. We are arguing
our point of view, and it is the facts that make the
determination.
Let me go back to--and you have it in front of you--my
presentation, exhibit C, which I guess is the third exhibit,
which is really the White House exhibit that Mr. Ruff had up
here for a number of days, because they were really trying to
hammer home this statement that I made in my presentation. I
hope you all have that.
Mr. GRAMM. Just tell us.
Mr. Manager HUTCHINSON. I will tell it to you then. Thank
you.
Exhibit C--which I hope you have; we asked them to
distribute that--is a statement that Mr. Ruff portrayed, from
me, which in my presentation I said: ``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.''
There are two things that I am pointing to as the trigger
mechanisms for the job search intensification. One of them is
the witness list that comes in on December 5, that the
President knows about, at the latest, on December 6. The other
thing that intensified that effort was the judge's order on
December 11.
They went through this long circumstance of Mr. Jordan
being in Holland and the time of the phone call with the judge
and all of that, showing that the judge's order of December 11
could not have triggered any action on the 11th. There is no
question about that. That is obvious from the facts, as it was
obvious when I made my presentation. The meetings on the 11th,
with Vernon Jordan and Monica Lewinsky, were triggered by the
witness list coming on the 5th, that the President knew about
on the 6th, that he discussed with Vernon Jordan as well.
We say that the judge's order of the 11th, which was filed
that day--the only thing that was filed on the 12th was their
memorandum of that telephone conversation--that triggered
additional action down the road. The job search was not over;
the activity continued into January. And, so, that all put
pressure on the ultimate fact, in January when the job was
obtained, the false affidavit was filed.
Now let me just point to a couple of other things along
that line. We need to look at this because they basically make
the point that there is not any connection between the false
affidavit--and that is my characterization--that was filed, and
the job search. But if you look at the testimony of Vernon
Jordan, and that is exhibit--I think they are giving them out
now--F, that I am presenting to you, the sworn testimony of
Vernon Jordan which was on March 3 of 1998, he testifies in
answer to a question:
Counselor, the lady comes to me with a subpoena in the Paula Jones
case that I know, as I have testified here today was about sexual
harassment. . . . you didn't have to be an Einstein to know that that
was a question that had to be asked by me at that particular time
because heretofore this discussion was about a job.
And then he says, ``The subpoena changed the
circumstances.'' And I think this is important, that Mr.
Jordan, who is filled with common sense, says you don't have to
be an Einstein. You don't have to be learned, like Mr. Ruff or
any of the other White House counsel, to apply common sense.
Common sense tells you that whenever he knew about the
subpoena, it escalated to a new arena and obviously the witness
list would have the same impact.
And, so, Mr. Jordan himself makes the connection, the job
search was one thing but whenever she became a witness in the
Jones case, that changed everything. That changed the
circumstances. Let me tell you, that is a friend of the
President who is making that statement.
We have to take this picture, that they were related as
they were going two tracks, they became interconnected and
became one track.
The final point--and this was raised on the job search
issue--that the call by Mr. Jordan to Mr. Perelman, the CEO of
the parent company of Revlon, really had no impact on Monica
Lewinsky getting a job because there is a misinterpretation as
to how well she did on the interview. But if you look back to
the testimony, the grand jury testimony, there was a
connection, because Mr. Jordan calls Mr. Perelman and, as he
characterized it: Make it happen if it can happen. Mr. Perelman
then calls Mr. Durnan, and then Mr. Durnan calls Ms. Seidman,
who was actually doing the interview the next day with Monica
Lewinsky.
So the person who was going to make the decision whether to
hire Monica Lewinsky got the word down through the channel
before that interview took place and before the decision was
made. And of course the important thing is: What was the
intent? Not the result, but the intent. I think you can see
that there was an intent to make sure that Monica Lewinsky was
taken care of. Again she was on board, part of the team, before
she actually would have to give testimony or the President
would have to give testimony.
The CHIEF JUSTICE. This question from Senator Boxer, and it
is to counsel for the President:
In light of the concession of Manager Hutchinson that Judge
Wright's order had no bearing on the ``intensity'' of the job search,
can you comment on the balance of his claim on the previous question?
Mr. Manager HUTCHINSON. Mr. Chief Justice, can I object to
the form of the question? That was not properly characterizing
what I just stated.
The CHIEF JUSTICE. Can the managers object to a question?
[Laughter.]
Mr. Manager HUTCHINSON. I withdraw my objection.
The CHIEF JUSTICE. Very well. The Parliamentarian says they
can only object to an answer, not to a question, which is kind
of an unusual thing but----
Mr. Counsel RUFF. Mr. Chief Justice, I was going to remark
that they can if they have the courage.
I want to link up my response to Manager Hutchinson's most
recent comments with the previous discussion about vagueness.
If there was ever a moving target, we have just seen it in
motion: Well, it really wasn't December 11, because now we know
it didn't happen on December 11, so let's go to December 19, or
maybe January 8, and somewhere in there we are going to find
the right answer.
I suggest to you that is reflective of both the difficulty
we have had in coming to grips with these charges and,
candidly, the difficulty that the House might have had figuring
out what those charges really were.
Let me just respond briefly to Mr. Manager Hutchinson's
argument. And let me focus, first, on another portion of his
presentation in which he states, and there--and he is referring
now to Ms. Lewinsky--she is referring to a December 6 meeting
with the President in which, as you will recall, she has
testified that there was a brief discussion about her efforts
to get a job through Mr. Jordan and the President sort of
vaguely said, ``Yes, I'll do something about that.'' This is
Mr. Manager Hutchinson's characterization of that moment.
December 6, you will recall, is the day after the witness list
comes out and the day on which she learns of it:
So you can see from that that it was not a high priority for the
President either. It was, ``Sure, I'll get to that, I will do that.''
But then the President's attitude suddenly changed. What started out as
a favor for Betty Currie dramatically changed after Ms. Lewinsky became
a witness and the judge's order was issued again on December 11.
But to the extent the managers now seek to drag the
intensification process back into the December 5 or 6 period,
which is when Ms. Lewinsky went onto the witness list, you must
look at what they say.
Page 11, majority brief, Mr. Jordan met President Clinton
the next day, December 7, but they didn't discuss the job at
all. It is absolutely clear that the President knew that Ms.
Lewinsky was on the witness list when he met with Mr. Jordan on
December 7, and yet the issue of Monica Lewinsky didn't even
surface.
I am getting some help here.
``The first''--``the first,'' their words, page 11,
majority brief, majority report--``The first activity
calculated to help Ms. Lewinsky actually get a job took place
on December 11. There was no urgency.''
It is possible, of course, as their trial brief reflects,
to bob and weave and dodge around the facts here, but their
trial brief says:
There was obviously--
Referring to the period after she appears on the witness
list--
There was obviously still no urgency to help Ms. Lewinsky.
And even they acknowledge that the December 7 meeting with
Mr. Jordan was unrelated to Ms. Lewinsky.
But let me point, because I think this really goes to the
heart of it, to what the managers ask you to think about in
this context in which now, whether we call it a confession or
simply an acknowledgment, what they asked you to do when you
heard the recitation about the December 11 events. We now know
Mr. Jordan is flying over the Atlantic at the critical moment,
and here is what Mr. Manager Hutchinson asks you to do with
Vernon Jordan, distinguished citizen, distinguished lawyer:
Now, if 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.
There is only one message there: Vernon Jordan must have
been lying or at least there is enough question about his
credibility and his honesty and his decency to explore whether
he was lying. If you predicate that question on the, shall we
say, erroneous recitation of events on December 11, you need to
know nothing more about what the time line and the chronology
and the managers' theory of this case is all about.
Thank you, Mr. Chief Justice.
Mr. CHIEF JUSTICE. This question is from Senators Sessions,
Gramm of Texas, Smith of New Hampshire, Inhofe, Allard, and
Roberts. It is directed to the House managers:
In defense of the President, Ms. Mills has repeatedly stated, and
has just reiterated, that the crime of witness tampering requires some
element of threat, intimidation or pressure. Isn't it true that section
1512(b) criminalizes anyone who corruptly persuades or engages in
misleading conduct with the intent to influence the testimony of any
person in an official proceeding? Please explain.
Mr. Manager BARR. Mr. Chief Justice, we appreciate the
question from the Senators, since it bears on a number of
different questions and a great deal of the evidence that you
all have heard in this case.
One can talk around the law, one can talk about the law,
one can ignore the law and, as we have seen, one can break the
law, but one has to deal with the law in court and in these
proceedings. And that is why throughout these proceedings the
Senators have heard us, as the House managers on behalf of the
House of Representatives, and as the presenters of this case
against the President, refer repeatedly and explicitly to the
actual language of the statutes which form the basis for the
articles of impeachment against President William Jefferson
Clinton.
Counsel Mills has, in fact, misrepresented the law of
tampering with witnesses as set forth very explicitly in
section 1512 of title 18 of the United States Code. In her
arguments 2 days ago, Ms. Mills quite expressly stated that one
of the elements that a prosecutor must charge and that must be
found here, if, indeed, article II, which is obstruction of
justice, should lie as the basis for a conviction thereon, one
must find that tampering under 1512 requires threats or
coercion. Nothing could be further from the truth.
Now, if, in fact, Ms. Mills had stated to this body that
one of the bases, one of several bases on which a prosecutor or
we, as House managers, could, indeed, show this body that
tampering with a witness would lie, includes, as an
alternative, as an option, threats or coercion, she would have,
instead of being misleading, been absolutely correct. That was
not her position.
Section 1512 of the United States Code expressly does not
require threats of force, intimidation or coercion. It may be
based on the person corruptly persuading another person or
engaging in misleading conduct toward another person, both of
which are terms, the definitions for which are not found in the
ether, but are found, yet further reading, in title 18. Neither
of them requires threats, intimidation or coercion.
Moreover, in considering whether or not section 1512 or,
indeed, its companion section, 1503, also obstruction of
justice under the U.S. Criminal Code, which also does not
require for a conviction to lie thereon threats of force,
intimidation or coercion, but also may be and is based on
corruptly influencing, those terms are expressly defined and
dealt with not only in the definitional provisions of title 18,
and including specifically definitions that apply to these
provisions, these sections, but also in the case law.
We respectfully direct the attention of the Senators in
reviewing the law of obstruction of justice and the law of
tampering with witnesses to some of the very cases cited by the
attorneys for the President in their effort to deflect
attention away from these particular provisions of the law as
they apply to the conduct of the President.
For example, in her presentation, Presidential Counsel
Mills relied on the Supreme Court case of United States v.
Aguilar in her statements. In that case, the Court held that a
lie told to a criminal investigator was insufficient to prove
witness tampering.
What Ms. Mills failed to disclose, however, was that the
Court's decision in that case, in that Aguilar case, was based
on a specific finding not applicable to the facts of this case
that the evidence was insufficient to prove that the defendant
could have even thought that the investigator was a potential
witness at the time that he lied to him.
The overwhelming body of evidence in this case, as we have
heard yet this morning, most recently in response to questions,
is that not only could the President, and the President did in
fact reasonably presume, indeed almost invite, the lawyers in
the Jones case to subpoena Ms. Currie as a witness, but we have
found, contrary to the prior misleading statements of Counsel
Ruff, she was, in fact, subpoenaed and called as a witness.
Therefore, we believe that on both arguments raised by
counsel for the President seeking to deflect attention away
from and render inapplicable both obstruction provisions, 1503
and 1512, because they, one, require--as we have shown they do
not--but they would argue they require coercion, threats,
intimidation or force or, two, they are inapplicable because
the President could not have reasonably believed or did not
know that Ms. Currie was a witness, could reasonably be
expected to be a witness at the time the coercion took place.
I yield for 1 minute to House Manager Graham.
The CHIEF JUSTICE. I believe the House managers' time has
expired.
Mr. Manager BARR. I will not yield to House Manager Graham.
The CHIEF JUSTICE. Senator Byrd, to the President's
counsel:
Alexander Hamilton, in Federalist essay No. 65, states that ``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.'' Putting aside the specific legal
questions concerning perjury and obstruction of justice, how does the
President defend against the charge that, by giving false and
misleading statements under oath, such ``misconduct'' abused or
violated ``some public trust''?
Mr. Counsel RUFF. Mr. Chief Justice, this, too, goes to the
very heart of the deliberations in which you must engage at the
end of these proceedings. As I have tried to make clear in my
earlier arguments, it is not enough simply, I think, to ask
does a particular generic form of misconduct, however serious
it may be, lead inexorably to the conclusion that the President
of the United States has committed an impeachable offense?
As the framers made clear, and I think the history that lay
behind their deliberations and the history that has followed
make clear, when we speak of the kind of political--in caps,
which is what it was in Federalist 65--offenses against the man
in his public role, we speak of offenses which this body must
ultimately judge as being so violative of his public
responsibilities that our system cannot abide his continuing in
office.
Let us assume for a moment--and we will disagree with each
and every element of the accusation--but let us assume for a
moment that this body were to conclude that the President lied
in the grand jury about his relationship with Ms. Lewinsky.
That in and of itself does not lead to the judgment, and in our
view must not lead to the judgment, that he needs to be removed
from office. It must give you pause. You must think carefully
about it.
But ultimately you must ask, despite our rejection of any
such conduct--whether it be a judge or a President or any other
civil officer--have the framers instructed us to remove from
his office, and overturn the will of the electorate, a
President who, admittedly, if you conclude that he did violate
the law in this regard, has violated a public trust in the
broadest sense, as each of us does who serves the public, if we
do anything other than that which are our properly assigned
responsibilities, and do them with the utmost of integrity?
Each of us violates that trust if we don't meet that standard.
But the one thing we can be certain of is that the framers
understood the frailties with which they were dealing. They
understood the nature of the offense that had been the
background of impeachment proceedings in England. And certainly
the framers, in their debate, made it clear that it has to be
at the highest level of public trust--the breach of the public
trust that is embodied in the words ``treason,'' ``bribery,''
``selling your office'' and similar other high crimes and
misdemeanors.
And so all I ask the Senators in this regard is not to
simply leap, as the managers would have you do it, from the
definition of the offense or the statute governing their
conduct, but to ask the constitutional question, as I know you
will, the framers' question. If we have not convinced you on
the facts, I hope we will convince you that the framers would
have asked: Is our system so endangered that we must not only
turn the President over to the same rule of law that any other
citizen would be put under, after he leaves office, but must we
cut short his term and overturn the will of the Nation? And in
our view, in the worst case scenario, you can find the answer
to that question must still be no.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Senator Lott asks the House managers:
Do the managers wish to respond to the answer just given by the
President's counsel?
Mr. Manager CANADY. Mr. Chief Justice, Members of the
Senate, we will briefly respond to the response just given by
counsel for the President. We believe that the response and the
position taken by the counsel for the President here really
involves two great errors. One error is in establishing a
standard of conduct for the Presidency that is too low. The
other error is in attempting to minimize the significance of
the offenses that this President has been charged with and
which we submit to you the evidence supports the charges.
Now, we do not submit that any President--this President,
whoever it may be--should be impeached and removed from office
for trivial or insubstantial offenses. We believe that an
essential part of the focus of your inquiry must be on whether
there was a serious, corrupt intent involved in the underlying
conduct.
A President should not be impeached and removed from office
for a mistake of judgment. He should not be impeached and
removed for a momentary lapse. Instead, he should be impeached
and removed if he engages in a conscious and deliberate and
settled choice to do wrong, a conscious and deliberate and
settled choice to violate the laws of this land.
We submit that he must be impeached and removed if he does
that, because in doing so he has violated his oath of office
and in doing so he has turned away from the unique role which
he has under our Constitution, as the Chief Executive, charged
with ensuring that the laws be faithfully executed. He steps
aside from that role and takes on the role of one who attacks
the rule of law. And it is for that reason that we believe this
President should be removed. And we further submit the attempt
to minimize the significance of the conduct of this President
does a disservice to the laws of this land.
The attempt to minimize this course of conduct, which
started out as an effort to deprive a plaintiff in a civil
rights case of her just day in court, is a serious course of
conduct, a course of conduct which brings disrespect on the
Office of the Presidency and, indeed, undermines the integrity
of the Office of the Presidency, the integrity of the judicial
system. And it is for all of those reasons that we submit to
you the President's counsels' efforts to persuade you that this
course of conduct is not impeachable are not persuasive and
should not be accepted by the Senate in this case.
The CHIEF JUSTICE. Senators Torricelli and Rockefeller ask,
to the President's counsel:
The House managers have made the overly broad argument that
``[n]othing in the text, structure, or history of the Constitution
suggests officials are subject to impeachment only for official
conduct.'' Can this unbending argument be reconciled with the following
statement from Justice James Wilson: ``Our President . . . is amenable
to [the laws] in his private character as a citizen, and in his public
character by impeachment''--and with the standard adopted by a
bipartisan majority in the Watergate proceedings?
Mr. Counsel RUFF. Mr. Chief Justice, Senators, I could
probably simply say no, given the articulate framing of that
question, and I would have said as much as needed to be said.
I think the managers have, in their strawman-building role,
tried to suggest that our position somehow is so distant from
constitutional realities and the realities of the operations of
our Government that we could not conceive of a situation in
which private conduct, no matter how egregious, would lead to
removal. Of course, that is not the case. None of us could
contemplate a setting in which even personal conduct--and I
need not go through any examples--was so egregious that the
people simply could not contemplate the notion of a President
remaining in office.
But other than that, if there is one message that comes
out, not only of Judge Wilson but of the entire debate of 1787
and all of the commentary since then, it is that, indeed, the
focus of attention must be--and this goes back to, in large
measure to Senator Byrd's question--must be on the public
character of the man; the political, in a broader sense,
character of the man; and of his acts.
And if you look back at the 1974 writings of the House
Judiciary Committee, both majority and minority, this is not a
partisan view. They make it absolutely clear that the House
then believed something which they must either not believe
today or have ignored as they engaged in their discussions,
which is that the test to be applied is whether the President
in this case has so abused the public trust, so abused the
powers of his office, that he goes to the very heart of what
the framers had in mind in 1787 when they carefully confined
and carefully limited the range of activity that could lead to
contemplation of removal, and that is not a range of activity
that, with all due respect, touches anywhere near the conduct
that you have before you today.
The CHIEF JUSTICE. Senator Nickles asks the House managers:
President's counsel stated the President did not commit perjury.
Please respond.
Mr. Manager ROGAN. Mr. Chief Justice, I trust that the
presumption of 5 minutes is a rebuttable one, correct? I will
do my best not to have to go beyond the time. I thank the
Senator for the question.
First, just as a predicate, obviously in 5 minutes I could
not do a comprehensive review on the perjury aspects of this
case, so let me just start with a preliminary issue and we can
move on with different questions and revisit the issue at
another time. If anybody wants a lesson in legal schizophrenia,
please read the President's trial brief on this very subject.
They skirt the issue by saying nowhere in the President's grand
jury deposition did he ever affirm the truth of his civil
deposition testimony. But they won't come out and say he lied,
they won't come out and say he perjured himself, and they try
to ignore the actual fact of when the President was asked
questions about his oath that he took during the grand jury.
I read, therefrom:
Question to the President:
You understand the oath required you to give the whole truth that
is a complete answer to each question, sir.
Answer: I will answer each question as accurately and fully as I
can.
Question to the President:
Now, you took the same oath to tell the truth, the whole truth, and
nothing but the truth, on January 17, 1998, in a deposition in the
Paula Jones litigation, is that correct, sir?
Answer: I did take an oath there.
Question: Did the oath you took on that occasion mean the same to
you then as it does today?
Answer: I believed then that I had to answer the questions
truthfully, that's correct.
The colloquy goes on. It is in your materials.
They attempt to say that that somehow inoculates the
President from having to admit that he perjured himself during
the Paula Jones deposition.
But let's take a quick look at some of the answers he gave
during the Paula Jones deposition that he affirmed in his grand
jury testimony that we now know is false.
Question to the President:
If she [Monica Lewinsky] told someone she had a sexual affair with
you beginning in November 1995, would that be a lie?
Answer: It certainly would not be the truth.
Question: I think I used the term ``sexual affair;'' and so the
record is completely clear, have you ever had sexual relations with
Monica Lewinsky as that term is defined in deposition exhibit No. 1?
Answer: I have never had sexual relations with Monica Lewinsky.
I've never had an affair with her.
Then they go on to ask:
Is it true that when Monica Lewinsky worked at the White House, she
met with you several times?
Answer: I don't know about ``several times.'' There was a period
when the Republican Congress shut the government down. The whole White
House staff was being run by interns. She was assigned to work back in
the Chief of Staff's Office. We were all working there. I saw her on
two or three occasions then. And then when she worked at the White
House I think there were one or two times when she brought some
documents down to me.
Question: At any time were you and Monica Lewinsky in the hallway
between the oval office and the kitchen area?
Answer: I don't believe so unless we were walking back to the
dining room with pizzas. I just don't remember. I don't believe we were
in the hallway, no.
This colloquy goes on and on. I invite the Senate to review
the President's deposition testimony.
He clearly was giving answers that were false. They were
not part of the record. He wasn't doing it to protect himself
from embarrassment; he was doing it to defeat Paula Jones'
sexual harassment case. When the President testified in August
before the grand jury, he never denied the truth of those
testimonies. He refused to admit he lied during the deposition.
He reiterated the truth of those because he knew he would be
subject to perjury.
The question for the President's counsel is this, and it is
a simple question: Did the President lie under oath on January
17 when he was asked questions about the nature of his
relationship with Monica Lewinsky? Did he lie when the U.S.
Supreme Court had said Paula Jones had a right to proceed in a
sexual harassment case? Did he lie when Judge Susan Webber
Wright ordered him to answer those basic questions under oath?
And if the answer to that question is yes, then we have an
incredible admission; if the answer is no, I invite them to
point to the record where that is demonstrated.
The CHIEF JUSTICE. To the President's counsel from Senators
Conrad and Torricelli:
The House of Representatives rejected two proposed articles of
impeachment, including an article of alleged perjury in the Jones
deposition. Do you believe that the Senate may, consistent with its
constitutional role, convict and remove the President based on the
allegations under the rejected articles, including the allegations of
perjury?
Mr. Counsel CRAIG. Mr. Chief Justice, article II was
defeated. But more importantly, article I specifically
incorporates by reference, or tries to incorporate by
reference, all the elements of article II. And the House of
Representatives, when they voted to reject article II, I think,
voted also to eliminate these issues about which you have just
heard.
We predicted--and our prediction has come true--that the
managers would like to argue this case. If you look at the
majority point that comes out before the vote occurs on all
four articles and you go to article I and try to find out where
in article I they define those perjurious statements that
compose subpart (2), the civil deposition, you will see in the
majority report they say go look at article II--which is the
argument about the civil deposition--and the House of
Representatives specifically voted to take out all those
accusations and allegations of misconduct with respect to the
civil deposition.
I have testified, as did Mr. Ruff, before the Judiciary
Committee on this issue. I said that the President's responses
in the Jones deposition were surely evasive, that they surely
were incomplete, that they surely were intended to mislead; and
it was wrong for him to do all that. But they were not
perjurious.
If you want to try a perjury case about all of the things
and the statements that the House of Representatives did not
want to accuse him of, that would be inconsistent, I think,
with your duty as members of this court. You cannot impeach the
President on the issues that are included in article II. He was
not impeached; you cannot remove.
Mr. LOTT. Mr. Chief Justice, I believe we have had an equal
number of questions, although the timing may not be exactly
equal.
I ask unanimous consent that we take a 15-minute recess at
this point.
There being no objection, at 2:41 p.m., the Senate recessed
until 3:01 p.m.; whereupon the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to
resume the questions, and I believe this will be question No.
16. We send the question to the Chief Justice.
The CHIEF JUSTICE. This is a question from Senators
Santorum, Smith of Oregon, and Thomas to the House managers:
Please respond to the presentation made by counsel to the
President, including the argument made by Mr. Craig, to the effect that
the rejection of article II had the effect of eliminating that portion
of article I. Did the House conclude that lying in a civil deposition
is not impeachable, but that lying to the grand jury about whether the
witness lied in a civil deposition is impeachable?
Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators
for the question and for the opportunity to rebut the
presentation a few minutes ago by counsel for the President,
Mr. Craig.
In his response he asks the Senate to do specifically what
none of the attorneys can do in their presentations, and that
is go beyond the record. Specifically, Mr. Craig is asking the
Senate to make assumptions as to why the House of
Representatives defeated what was then known as article II, a
stand-alone article of impeachment that the President lied
during the civil deposition. And he goes so far in his
presentation to say because the House of Representatives
defeated what was then article II, the Senate should not
consider any of the language relating to the President's
perjury during the civil deposition.
First, I ask the Senate not to make those assumptions
because if there was any reasonable inference to be drawn, it
would be that it was cumulative. Why is it cumulative? Why did
the House not want this to be a stand-alone article? It is
cumulative because, if Mr. Craig would read article I, he would
see that one of the allegations of perjury is that the
President committed perjury in the grand jury when he
referenced his civil deposition answers and reiterated those to
the grand jury. And so the House made a decision not to use a
separate stand-alone article. But I respectfully submit to this
body that that is the only inference that can be drawn.
The other thing I want to mention briefly about Mr. Craig's
presentation on that issue is what I found to be a startling
admission on his part. Assuming, of course, that the Senate is
going to look at article I as it was drafted and passed by the
House and is presented to you dealing with civil deposition
perjury, Mr. Craig said that the President's testimony in the
Jones case was evasive and incomplete.
He goes even further in his testimony, or statement to the
Senate a couple days ago, and I am quoting. He said, ``The
President's testimony in the Jones case, the President was
evasive, misleading, incomplete in his answers.''
That begs the question. What kind of oath did the President
take in the civil deposition? Did he take an oath, did he raise
his hand and swear to tell the truth, the evasive truth, and
nothing but the evasive truth? Did he take an oath to tell the
truth, the misleading truth, and nothing but the misleading
truth? Did he take an oath to tell the truth, the incomplete
truth, and nothing but the incomplete truth? Because, if he
did, if that was the language that the President used when he
took his oath and testified, then perhaps Mr. Craig's position
is well taken. But a brief review of the oath that the
President took clearly states that he took an oath and was
obliged under the law to tell the truth, the whole truth, and
nothing but the truth--not the incomplete or misleading truth,
the truth, the whole truth, and nothing but the truth.
And so this body has to make a determination when they
review that testimony, both given during the civil deposition
and reiterated during the grand jury, whether the President
fulfilled his legal obligation in a sexual harassment lawsuit.
And if he did, then clearly that should be stricken, and you
should not consider that. But if he did not, if you find that
in fact he testified, as Mr. Craig says he testified,
incompletely, evasively, and misleadingly, then I believe this
body has an obligation to cast a vote accordingly.
The CHIEF JUSTICE. Senator Reed of Rhode Island asks the
White House counsel:
Would you please comment on any of the legal or factual assertions
made by the managers in their response to the previous question.
Mr. Counsel RUFF. I thank you, Mr. Chief Justice.
Mr. Manager Rogan asked you not to make assumptions about
what the actions of the House mean, and then proceeded to make
a series of assumptions about what the House might have meant.
The problem with Mr. Manager Rogan's analysis is twofold:
One, he and his colleagues in the House on the Judiciary
Committee drafted these four articles. They believed, at least
20 of the majority believed, that it should be an impeachable
offense, as he now puts it: did the President fulfill his
obligation in the Jones deposition? You don't need to make a
lot of assumptions to understand merely on the face of the
action that was taken that the full House said, no, it is not,
even if we were to conclude, as the House Judiciary majority
wishes us to conclude, an impeachable offense.
And so the managers have had to find a way to drag back
into article I all of the problems that they see in the
President's testimony in the Jones deposition. The problem is
that--and you can listen to it in the language that Mr. Manager
Rogan has used not only today but earlier and that is used in
the brief filed by the House managers--that the President, in
his words, referenced and reiterated his testimony in the Jones
case. Senators, that is not so.
They try to hook onto a statement, as best we are able to
tell in searching their position and their writings on the
subject, the managers hook onto a statement in which the
President said, I tried to walk through the minefield of the
Jones deposition without violating the law and think I did.
And, on that frail hook--which is clearly a statement of the
President's state of mind about whether he succeeded or didn't
succeed in testifying without violating the law in the Jones
case--on that hook they hang every single item. They didn't
tell us what they were--but they hang every single item that
the House rejected out of hand in article II.
Wholly apart from the inadequacy of the predicate that they
lay, if there was ever an example of a situation that Mr. Craig
talked about earlier and that I talked about on Tuesday, in
which I challenge anybody in this room to tell me how you would
have known coming into this Chamber what it was that the
managers were alleging with respect to the Jones deposition,
this is it.
Look at the trial brief. If you look at Manager Rogan's
presentation of the other day, if you listened to his
presentation today, where, amongst all that, do we pick and
choose to find the statements? Even if you agree with Mr.
Manager Canady that it is all right just to sort of generally
charge, as a constitutional proposition--and I firmly disagree
with that. I don't care under what level you are operating--the
lowest trial court in the country--nobody would ever say: Now,
Mr. Defendant, I want you to understand that you are being
charged with what you'll find at page, whatever it is, of the
majority report where we refer you over to this list of other
things that was rejected by--just let us say the grand jury--
and somewhere in there you are going to find the charges to
which we ask you to respond.
The bottom line is, you can go down that list. Some of them
you will never hear mentioned in this Chamber--haven't heard
them mentioned yet. I defy anybody in this Chamber, including
the managers, to justify asking the President of the United
States to defend against a reference from one page of a brief
to another in order to tell the charges of which he stands
accused.
If you read his grand jury testimony, you see he addressed
a number of issues that he addressed in the Jones deposition.
He clarified. He elaborated. He told the truth in the grand
jury. Not once was he ever asked by the independent counsel and
all his lawyers there who had been pursuing this investigation
for 7 months when they had him in the grand jury--not once did
they ask him this simple question: Is everything you testified
to in the Jones deposition true? Or, go down the list and say:
Is what you testified to on page 6, or page 8, or page 87 true?
And when they got through with that deposition, 4 hours,
professional prosecutors, and they went back and spent from
August 18 to September 9, when they sent their referral up,
looking back, using a fine-tooth comb on that transcript, and
they went back and said--where are the violations? Even they
don't say that there is some sort of wholesale importation of
the Jones deposition into the grand jury. And, yet, not the
House but the Judiciary Committee majority report and the
managers, with that big, vacant, empty spot in the middle, the
rejection of article II by the House of Representatives, would
have you believe that, indeed, what the independent counsel's
office didn't believe happened and didn't force to make happen,
did happen. And they are asking you to remove the President
from office on that kind of logic.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. This is from Senators Shelby and Snowe
to the House managers.
There has been much debate regarding the nature of the offenses
that fit within the definition of ``high crimes and misdemeanors.''
When employing this phrase in the Constitution, the framers relied on
precedents supplied by Colonial and English common law to provide
context and meaning. Please explain whether or not the offenses charged
in the two Articles fit within the types of impeachable offenses
contemplated by the framers as they interpreted Colonial and English
common law precedent.
Mr. Manager CANADY. Mr. Chief Justice and Members of the
Senate, I will be happy to respond to this question because it
is a question that goes to the heart of the matter that is
before us.
On Saturday I made a presentation which focused on the
history of the impeachment process in Great Britain and the way
in which that serves as a backdrop for the work of the framers.
I would like to refer you, again, to a document to which I made
reference during the course of the proceedings on Saturday.
This is a document which has also been referred to repeatedly
by counsel for the President. It is the report prepared by the
staff of the impeachment inquiry in the case of President Nixon
entitled ``Constitutional Grounds for Presidential
Impeachment.''
I believe that in that report they grapple with the very
issue that you have now raised. And in characterizing the
background of impeachment and characterizing the things that
the framers focused on both in the course of the Constitutional
Convention and in the ratification debates and also--it goes a
little beyond your question--the course of impeachment
proceedings over the last 200 years in the House of
Representatives and in the Senate, they came to this
conclusion, and this is what they said. They said:
The emphasis has been on the significant effects of the conduct--
undermining the integrity of office, disregard of constitutional duties
and oath of office, arrogation of power, abuse of the governmental
process, adverse impact on the system of government.
They went on to say:
Impeachment was evolved by Parliament to cope with both the
inadequacy of criminal standards''--and one of the issues that they
were concerned with was whether there had to be a criminal violation in
order for there to be a high crime or misdemeanor, and they concluded,
I believe rightly, that there need not be a criminal offense, but they
said, ``Impeachment was evolved by Parliament to cope with both the
inadequacy of criminal standards and the impotence of courts to deal
with the conduct of great public figures.
They concluded, then, by saying:
Because impeachment of a President is a grave step for the nation--
which all of us in this Chamber concede--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.
That is the standard which they set forth, which I believe
encapsulates the whole history of the experience of the English
Parliament, as well as the discussions in the Constitutional
Convention and the ratification debates as well as anything I
have seen.
Let me point out that this was a product of the staff of
the Rodino committee. This is not something that the House
managers here today have come up with to support our case; it
is there as part of the record.
Let me refer to another part of that particular report,
which I think gets to the essence of the matter here. They
said, ``Each of the thirteen American impeachments''--of
course, there have been more impeachments since the time this
was written--``involved charges of misconduct incompatible with
the official position of the officeholder. This conduct falls
into three broad categories.''
I think that this is a very sensible division of the types
of conduct that may fall--the types of conduct that constitute
high crimes and misdemeanors.
(1) exceeding the constitutional bounds of the powers of the office
in derogation of the powers of another branch of government; (2)
behaving in a manner grossly incompatible with the proper function and
purpose of the office; and (3) employing the power of the office for an
improper purpose or for personal gain.
I submit to you, in conclusion, that what we have before
the Senate in this case is conduct that clearly falls within
the scope of category 2, which I just read, which I will
repeat--``behaving in a manner grossly incompatible with the
proper function and purpose of the office''--for the very
reasons I explained a few moments ago. When the President of
the United States, who has taken an oath of office to support
and defend the Constitution, who has a constitutional duty to
take care that the laws be faithfully executed, engages in a
calculated course of criminal conduct, he has, in the most
direct, immediate, and culpable manner, violated his oath of
office, breached his duty under the Constitution, and for that
reason has behaved in a way that is grossly incompatible with
the proper function and role of the high office to which he has
been entrusted--which has been entrusted to him by the people
of the United States.
The CHIEF JUSTICE. This question from Senator Bingaman to
White House counsel:
Would you please comment on any of the legal or factual assertions
made by the Managers in their response to the previous question?
Mr. Counsel RUFF. Mr. Chief Justice, Senators, let me make
a couple of points, if I might. The question that was put to
the managers started by asking what we can learn from looking
back into English roots of impeachment and how that might bear
on the decisions that you face in the coming days.
I will not, in any sense, hold myself out as a scholar or
at least enough of one to be able to answer the question with
any specificity, but I do know enough about the parliamentary
form of government and its experience with impeachment to know
that a couple of lessons can be drawn from it.
First, that impeachment was a developing tool over the
course of the 14th, 15th, 16th and 17th centuries as a weapon
in the battle between the Parliament and the Crown. It was one
of the ways--indeed, one of the very few ways--the Parliament
could reach out and remove the King's ministers or the Queen's
ministers, and that was really where the battleground was.
Even in that setting, when it was an avowed political tool,
history, I think, will tell us that Parliament did ask itself,
Was the conduct of the minister at issue--whoever that minister
might be--so subversive of the constitutional form of
government that removal of the minister, or in some cases even
more severe sanctions, was necessary?
If you transport that into the experience of the framers,
it does two things, I believe: One, it tells you what the
framers knew of the seriousness of the offenses that had to be
addressed through impeachment and what the need for impeachment
was as the ultimate solution to the ultimate problem.
But it also tells you very clearly that the framers did not
want to bring that English experience in wholesale because they
recognized it for what it was, which was, indeed, a weapon in
the battle between the Parliament and the Crown, and the
government that they had created needed balance among the
legislature and the executive and the judicial branch. The use
of impeachment, as it was reflected over the four or five
centuries that had been developed, was not consistent with what
these framers were creating. And so they very carefully chose,
and the debates reflect that, to limit the scope of impeachment
and to use it as they viewed it: only as a matter of
constitutional last resort.
In doing so, they foretold, I think, the positions staked
out both by the majority and the minority at the time of
Watergate. And let me pause here just for a moment to say that
I will not go into detail respecting the conduct engaged in by
former President Nixon, except to say and suggest to you that
it is so far distant from anything that has been charged here
that it doesn't belong in the same sentence, paragraph, or
certainly article.
But if you look at what came out of the House Judiciary
Committee in 1974, I agree entirely with the theme of the
majority staff report at the time, as did the minority. Their
theme was the theme that I hope I have sounded, probably too
often, over the last few days. And I am going to read to you
again--I apologize to you--something I read to you earlier,
which is the minority view on the meaning of impeachment:
It is our judgment, based upon this constitutional history, that
the framers of the United States Constitution intended that the
President should be removable but by the legislative branch only for
serious misconduct dangerous to the system of Government established by
this Constitution. Absent the element of danger to the State, we
believe the delegates to the Federal Convention of 1787--
I will skip over a little language here--
struck the balance in favor of stability in the executive branch.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Senators Grassley, Smith of New
Hampshire, Bunning and Craig ask the House managers:
In your presentation, you made the case that the Senate should call
witnesses. In light of the White House's response to this argument, do
you still hold this position? Please elaborate.
Mr. Manager McCOLLUM. Mr. Chief Justice and Senators, the
House definitely holds to the position that we should call
witnesses. But I think the issue here is what has been related
to us in anything we have heard in the past few days by the
White House counsel that would say we don't need them, or I
think just the contrary, what have we heard that says we are
more likely to need them, or you are more likely to need them.
First of all, I would like to point out to you that the White
House counsel is trying to have it both ways.
They have been arguing to you on a lot of technicalities of
the law, the criminal law, for the last few days, and that is
understandable.
As I said to you a few days ago, I think this is a two-
stage process. We, the managers, do. You have to determine if
the President committed crimes, and if he did, should he be
removed from office: two separate questions. They have argued
to you that you should use the standard, beyond a reasonable
doubt, which is a criminal standard, and I might add that
standard is only for facts, it is not for whether you remove;
it isn't to determine law.
You wear the hat as finders of fact as well as the judges,
finders of the law, and so forth. But if you choose to use that
standard, you need to know that it doesn't mean it excludes any
doubt. You probably need to hear a jury instruction, which we
can provide at some reasonable point for you, about how a
Federal court would charge a jury about that.
The point I am making is that they have claimed that, and
they claim there is a lack of specificity in the charges. We
are not in court in the sense of a real trial here. We don't
have to be specific like that. The whole history of the
articles of impeachment that have come over here in the past on
judges have never gotten down into the technical specificity of
a courtroom and been thrown out because they were not exactly
right.
My point is they have built up a whole case about we ought
to follow these rules and have a criminal proceeding and judge
the crimes on that basis, and yet they have said you wouldn't
have witnesses or we shouldn't call witnesses.
In any criminal trial, you are going to call witnesses; you
need to judge their credibility. I want to walk through what
else they have said to you in the last couple of days that
makes that point very clear with regard to testimony, with
regard to judging who you believe or who you don't believe and
how important that is.
First of all, let's just take a few glimpses, but as we do
this, remember the big picture is the scheme the President has
engaged in. The whole basis for our discussion today in each of
these two articles of impeachment involves the questions of the
President trying to thwart the Jones court will, trying to hide
evidence from the court and planning not to tell the truth in
that deposition in January. Whether that is over here on a
perjury count or not is irrelevant. It is critical to this case
for both obstruction of justice and perjury that you accept and
understand, as I think clearly you do from listening to all of
this, that the President lied many times in that deposition in
the Jones case because he didn't want them to get the facts,
the true facts of his relationship with Monica Lewinsky.
In that process of looking at that, he needed Monica, if
you recall, to file a false affidavit. He needed to obscure the
fact that there were gifts there. He needed to obscure the
trail that led to him in any detailed relationship with her.
So let's take, for example, the gift-exchange discussion
counsel had out here a couple of days ago with us. They were
pointing out to you--the White House counsel--that on December
28, that Monica Lewinsky, in her grand jury testimony,
testified that the President said to her--with respect to what
she should do about those gifts, and she raised giving them to
maybe Betty Currie--I don't know or let me think about that.
The counsel said, well, let's go back and look at 10
different times where she said about that subject all kinds of
different ways. I submit to you that her grand jury testimony,
after she got the immunity to testify, is clearly the most
credible. We presented that to you, and that is what the
President said.
It is significant what he said, because that is part of
your chain you have to lead down the road to figure out whether
or not he had the requisite intent to influence the outcome of
what was done with the gifts.
The reality of this is that when you look at it, you have
to question her testimony; you have to question her
believability. You ought to bring her out here. She should be
brought out here, if they are going to challenge her like this,
and give an opportunity for us to examine her on both sides and
determine what is her best testimony about that, if that is
important to you, and apparently it is to White House counsel.
The same thing is true of the questions with regard to Ms.
Currie and the phone call dealing with the question of coming
over to get the gifts. There White House counsel is saying, in
essence, Ms. Lewinsky is not telling the truth; Ms. Currie is.
If you don't have them here to listen to, who are you going to
believe? I suspect if Ms. Lewinsky came out here, that 1-minute
phone conversation, which was not part of the Starr referral--
we discovered that subsequent to that--would be something she
could comment on and explain, and maybe Ms. Currie could, too.
But we do not have that. And they made a big to-do over that in
the last couple days.
Last, but not least, what I put up on the chart here is
dealing with this affidavit. This affidavit is very important.
It is a central part of the obstruction of justice. It is the
very first obstruction of justice and the question of
truthfulness. And who you believe in this pattern is very, very
important.
The White House counsel have been arguing the last few days
that, indeed, with regard to the cover stories, that there was
no discussion of cover stories in a timely way during the
December 17 phone conversation when the President suggested
Monica Lewinsky file an affidavit, and that the cover story
idea somehow isn't tied into the issue of putting into her head
that she should tell a lie.
I call your attention to what I read to you the other day.
It is up here on this board. And I refer it back to you on the
chart. This is one of the charts where she testified before the
grand jury--Monica Lewinsky did:
At some point in the conversation, and I don't know if it was
before or after the subject of the affidavit came up--
I don't know if it was before or after, but it was during
that conversation on December 17 when the affidavit did come
up--
he sort of said, ``You know, you can always say you were coming to
see Betty or that you were bringing me letters.'' Which I understood
was really a reminder of things that we had discussed before.
And she went on to say the famous quote: ``And I knew
exactly what he meant [by this].''
And if you remember--I read that to you the other day--she
also said: ``It was the pattern of the relationship, to sort of
conceal it.''
I am not going to put the other board up here, but in the
same context they have been saying, with respect to this
affidavit issue again, ``No one asked me to lie.'' Remember
that was repeated over and over and over again. And I, again,
point out to you that you need to bring her in here, I think,
based on what they are saying and arguing, to find out for
yourself if she is going to corroborate this.
She said in the grand jury testimony:
For me, the best way to explain how I feel what happened was, you
know, no one asked or encouraged me to lie, but no one discouraged me
either.
And she went on to say: ``And by him not calling me and
saying that''--that she shouldn't lie; I didn't read the whole
paragraph--``I knew what [he] meant.''
``Did you understand all along that he would deny the
relationship also?''
She says: ``Mm-hmmm. Yes.''
The question: ``And when you say you understood what it
meant when he didn't say, `Oh, you know, you must tell the
truth,' what did you understand that to mean?''
She says: ``That--that--as we had on every other occasion
and every other instance of this relationship, we would deny
it.''
If you believe her, then the President is not telling the
truth. The affidavit clearly is something he was trying to get
her to file falsely. It makes sense that he would, because he
relied on it in the deposition. He patterned it after the cover
stories in the affidavit--what he had to say--the lies he told
about the relationship. It makes common sense to me.
The CHIEF JUSTICE. Mr. McCollum, I think you have answered
the question.
Mr. Manager McCOLLUM. Thank you very much.
My point is, you ought to bring the witnesses.
The CHIEF JUSTICE. The question from Senator Bryan to the
White House counsel:
Would you please comment on any of the legal or factual assertions
made by the managers in their response to the previous question,
focusing on the need for witnesses and the time likely required to
prepare for and conduct discovery?
Mr. Counsel KENDALL. Mr. Chief Justice, the first question
to ask about the need to call witnesses is, What would the
witnesses add? That has not been described. What you have heard
are vague expressions of credibility and hope. You have not
heard specifically what these witnesses would add. And the
answer to that is, they would add nothing to what is not
already there.
Yesterday, I held up the five volumes of testimony,
thousands and thousands of pages. You have it before you. Now,
those five volumes represent 8 or 9 months of activity by the
independent counsel. The independent counsel called many, many,
many witnesses, many, many, many times. They proceeded with no
limitation on their budget, on their resources. They turned
things upside down. And they repeatedly--I think abusively--but
they repeatedly called witnesses--like Ms. Currie, Mr. Jordan,
Ms. Lewinsky--back to the grand jury for repeated interviews.
It is all right there. And the managers have really told you
nothing that could be added to this record.
Second, they have not made a representation about what the
witnesses would really say that is different. And the reason
they have not is that they themselves don't know. They
themselves have done no investigation. They don't know what
these witnesses would say. They are hoping that maybe something
will turn up.
What they have done is they have taken those five volumes,
and more, from the independent counsel. And I am reminded of
the old bureau that many newspapers had called ``Rewrite.''
That was not a bureau which did independent reporting. When an
editor read something that was incomprehensible, he or she
would say, ``Get me Rewrite.'' So what the House has done is
gotten ``Rewrite'' to write up its own report. They cannot tell
you--they can tell you what they hope--they cannot make a
representation or a proffer to you about what any witnesses
would say.
Their third, and really their only argument, is the
credibility argument--got to see these witnesses. In point of
fact, in the real world, when you have witnesses, their stories
often differ in some ways. They differ not because anybody is
lying; they differ only because people don't always have
precisely the same recollection of things. That doesn't mean
that looking at them will add anything other than getting for
you the 6th, 7th, 8th, 9th, 10th account of what some witnesses
said.
For example, in our trial brief, we quote--and Mr. McCollum
referred to this--at pages 66 to 67, 11 accounts that Ms.
Lewinsky has given on the gift exchange. I do not think you are
going to learn anything from a 12th account. And by the way,
with respect to the question of she might have testified
differently after she got immunity, 9 out of 11 of these
accounts were given, as you will see from the dates and the
testimony, after she got immunity. Calling witnesses will add
nothing to the record now before you. All the major witnesses
have testified, and their testimony is right there.
In response to the question of how long it will take, I
must tell you, we have never had a chance to call witnesses
ourselves, to examine them, to cross-examine them, to subpoena
documentary evidence--at no point in this process. It would be
malpractice for any lawyer to try even a small civil case, let
alone represent the President of the United States when the
issue is his removal from office, without an adequate
opportunity for discovery.
I think if they are going to begin calling witnesses, and
going outside the record, which we have right now--I think the
record is complete; and we are dealing with it as best we can
without having had an ability ourselves to subpoena people and
cross-examine them and depose them--but I think you are looking
realistically at a process of many months to have a fair
discovery process.
The CHIEF JUSTICE. This question is from Senator Chafee. It
is to the House managers:
The White House defense team makes a lot out of Monica Lewinsky's
statement that she delivered the presents to Betty Currie around 2:00
or 2:30 and about the fact that the phone call came from Betty Currie
at 3:32. Isn't it reasonable to assume that Ms. Currie meant that she
delivered the presents to Ms. Currie in the afternoon?
If the President was unconcerned about the presents, as he said in
his grand jury testimony, why didn't he simply tell Ms. Lewinsky not to
worry about it?
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
Let me just broadly review the whole gift issue and the
discrepancy in the testimony.
First of all, I want to go back to Mr. Ruff's presentation
during the last 3 days.
He argued that I unfairly characterized Betty Currie as
having a fuzzy memory whenever she was unclear. And she was
clear that it was her memory that Monica Lewinsky called to
initiate the retrieval of the gifts. And, of course, that is in
conflict with the testimony of Monica Lewinsky.
Further, they argue that Monica Lewinsky's time sequence as
to when she went to pick up the gifts, when Betty Currie went
to pick up the gifts, destroys her credibility. Her time
sequence does not fit. Let's look at her testimony on this
particular point. This is what Betty Currie has testified to,
and this is exhibit H-A in your folder on my presentation;
exhibit A. These are statements of Betty Currie in her
deposition testimony about when she picked up the gifts.
The first one is her testimony on January 27, 1998. She was
asked when she picked up the gifts, and she said, ``Sometime in
the last 6 months;''
In May she was asked when she picked up the gifts, and she
said, ``A couple of weeks'' [after the December 28 meeting]; in
the May 6 testimony, it was after the 28th meeting; and then in
her last testimony, July 22, in the ``fall maybe.''
That is Betty Currie's testimony. Contrast that to that of
Monica Lewinsky.
This is her recollection as to when Betty Currie came to
pick up the gifts. You will see that she has testified in her
proffer of February 1, ``Later that afternoon''; July 27, she
said Currie called ``several hours after leaving the White
House;'' ``about 2 o'clock''; ``Later in the day''; and August
6, called ``several hours'' after Lewinsky left the White
House. Her memory is fairly good about this.
The question is, the cell phone call, which really
corroborates what Monica Lewinsky said, that it was Betty
Currie who called to retrieve the gifts, and said the President
said, ``You have something for me,'' or something to that
effect. That came about 3:30. The cell phone record was
retrieved after Monica Lewinsky's testimony.
Does this destroy her credibility, particularly in contrast
to that of Betty Currie? I think it reflects that you are
trying to remember--you remember that it was a call
specifically from Betty Currie to retrieve the gifts. At the
time, she said it was in the afternoon. I think it corroborates
her because she has never had an opportunity to look at the
cell phone record--neither has Betty Currie--to refresh her
recollection and trigger it and see what that produces.
That is on the gift issue.
They say, What would it add to call witnesses? How are you
going to determine the truthfulness of this issue? Juries
across the country do it by calling witnesses.
In this particular case, it should be noted that all other
testimony of Betty Currie--I think her last one was about July
27 before the grand jury--all of it preceded the testimony of
William Jefferson Clinton which was in August before the grand
jury. The point is, because of the rush, the push, the
independent counsel didn't call anybody back to the grand jury
to re-question them after the information received from William
Jefferson Clinton.
So there are a lot of unanswered questions, perhaps, that
were generated by his testimony. The 1-minute call was raised:
How in the world could this be expressed in 1 minute--the
conversation that Betty Currie called to retrieve the gifts? If
you look at Monica Lewinsky's description of that call--excuse
me, let me read from her grand jury transcript. She was asked
about the call, and her answer was:
What I was reminded a little bit, jumping back to the July 14th
incident where I was supposed to call back Betty the next day, but not
getting into the details with her that this was along the same lines:
Question to Monica Lewinsky:
Did you feel any need to explain to her what was going to happen?
Her answer:
No.
In other words, this was a cell phone call. It was a
cryptic call. It was about retrieving gifts that were under
subpoena. It was a short conversation. It doesn't take a minute
to say, ``The President indicated you had something for me''--
Monica knows what she is talking about--``Come over,'' and that
is the end of the conversation--certainly it would not take 1
minute.
So all of the evidence is consistent with Monica's
testimony.
But let's look at the big picture on the gifts. The
evidence was concealed under the bed. It was evidence that was
concealed in a civil rights case; secondly, it was under
subpoena; thirdly, the President knew it was under subpoena;
and fourthly, Monica Lewinsky's testimony indicates that it
was, the call from Betty Currie, at the direction of the
President--and I am arguing there, a little; please understand
that--which initiated the retrieval of the evidence that was
under subpoena.
That is the big picture on this. I believe we have made our
case on that, and I believe it is strong, and I think it also
justifies the hearing of the testimony to resolve the remaining
conflict.
The CHIEF JUSTICE. This is to the President's counsel from
Senators Leahy, Schumer, and Wyden:
Notwithstanding the previous response by the House manager, does
not the evidence show:
(a) Ms. Lewinsky's testimony; it was her idea to give the gifts to
Betty Currie?
(b) the President's testimony; that he never told Betty Currie to
retrieve the gifts from Ms. Lewinsky?
(c) Betty Currie's testimony; that it was Ms. Lewinsky, not the
President, who asked her to pick up the gifts? And,
(d) the fact that the President gave Ms. Lewinsky additional gifts
on the very morning that he is alleged to have asked for them back?
Mr. Counsel RUFF. Mr. Chief Justice, I am not sure I
managed to capture all four subpoints of that question but I
will do my best.
It is interesting that the managers now suggest that the
great discovery of the 3:32 phone call that was so much the
heart and soul of Mr. Schippers' presentation and ultimately of
theirs is really just a slight glitch in the timetable.
Yes, it is perfectly possible, I suppose, that Ms. Lewinsky
could have just missed by an hour and a half, but she did say,
three times, once under oath, and twice to the FBI, which is
almost the same, that it was 2 o'clock, not 3:30.
So if you are going to ask, consistency, good memory, as
Ms. Lewinsky is supposed to have on this matter, she was
consistent, but you have to ask, if it really happened at 2
o'clock as she recalled, what is the meaning of the 3:32 call?
Putting aside that dispute, the question itself reflects
the essence of our position on this. First of all, there are
only two people present at the moment in which, theoretically,
the managers would have that the President urged Betty Currie
to go off and pick up the gifts. The President of the United
States and Betty Currie, they both testified, flatly, that such
a conversation did not occur. Do the managers really anticipate
if Ms. Currie were brought into the well of the Senate and
looked straight in the eye by one of the prosecutors on this
team, she would say, ``You got me, I had it wrong. The
President really did tell me to do something but I have
testified straightforwardly and honestly''?
He didn't say, as my colleague Mr. Kendall indicated--that
is wish and hope, and it has no basis in the allegation.
And, of course, the managers have thought up a good excuse
for why it is that the President is giving Ms. Lewinsky more
gifts on the very day when he is conspiring with her to hide
them: That somehow it is a gesture, a message being sent, that
because of these gifts she is someone who is being roped into a
conspiracy of silence.
Aside from the fact that there is not one single--not one
single--iota of evidence to support that wishful thinking, is
it really likely, even given the managers' perception of this
matter, that by giving Ms. Lewinsky the bear that my brief but
important colleague Senator Bumpers referred to yesterday, and
a pin of the New York skyline, and a couple of other things,
including a Radio City Music Hall scarf--I may have missed
some--that some great message was being sent to Ms. Lewinsky,
that this collection of ``valuable'' items was a message to
keep the faith, stay inside a conspiracy? I don't think so.
Thank you, Mr. Chief Justice.
Mr. LOTT. Mr. Chief Justice, may I inquire about the time
that has been used on each side?
The CHIEF JUSTICE. I will ask the Parliamentarian.
The counsel for the White House has consumed 57 minutes.
The counsel for the managers have consumed 54 minutes.
Mr. LOTT. I believe we have a question at the desk.
The CHIEF JUSTICE. This question is directed to the House
managers, proposed by Senators Snowe, Ashcroft, Enzi, Burns,
Smith of New Hampshire, and Craig:
At the end of the Jones deposition, Judge Wright admonished the
parties that, ``This case is subject to a protective order regarding
all discovery, and all parties present, including the witness, are not
to say anything whatsoever about the questions they were asked, the
substance of the deposition . . . any details, and this is extremely
important to this court.'' Within hours of Judge Wright's admonition to
all parties not to discuss details of the deposition, didn't the
President telephone Betty Currie to ask her to make a rare Sunday visit
to the Oval Office?
Before answering, the Chair wishes to make a correction in
response to the inquiry from the majority leader. The time used
by the House managers is 64 minutes, rather than 54 minutes.
Mr. Manager ROGAN. I trust that doesn't mean I have to sit
down, Mr. Chief Justice.
The CHIEF JUSTICE. It is not retroactive.
Mr. Manager ROGAN. Maybe I should quit while I am ahead.
I thank the Senators for their question. That is absolutely
true, and we know that because Betty Currie testified to that.
She said it was very rare to receive a phone call from the
President to ask her to come down to the White House on Sunday.
A day after the President testified in a deposition, when he
was specifically admonished by the judge that he was not to
discuss the deposition, he was not to detail it with anybody,
he was not to go into any of those factors, the President
called Betty Currie down to the White House and he made some
specific statements to her. He said 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?
She wanted to have sex with me, and I cannot do that.
When the President was asked 8 months later:
Why did you call Betty Currie down to the White House and pose not
questions, but statements to her?
When he was asked why he called Betty Currie down to the
White House and said that to her, this is how the President
responded:
I was trying to figure out what the facts were. I was trying to
remember.
That is patently false because in August when the President
testified, embarrassment was no longer on the table. The
President was admitting that he had, as he called it, an
improper relationship with Ms. Lewinsky. So why did he call
Betty Currie down there? He called her down there that day
after the deposition, in violation of the judge's order,
because throughout his deposition he kept referring to Betty
Currie as the fountain of information. If you read the
deposition testimony, you see the President reiterating over
and over, ``Monica came to see Betty,'' and, ``You would have
to ask Betty.'' He made innumerable references to Betty Currie.
That was his invitation to the Jones lawyers to depose
Betty Currie, and we know from Mr. Manager Hutchinson's
presentation earlier that that is what happened. Betty Currie
ended up with a subpoena from the Jones lawyers, and the
President could not waste any time; he had to make sure, with
discovery closing, that he got to Betty Currie right away, to
make sure that the story was straight.
How can one possibly say that he was posing the statements
to Betty Currie to remember, when the President knew that in
fact he was alone with Monica, that Betty wasn't always there
with him when Monica was in the Oval Office with him? She would
not be able to tell him that Monica came on to him and not the
other way around. This is patently ludicrous. There is no
reasonable explanation.
Mr. Chief Justice, if I have a minute left, I would like to
yield to Mr. Manager Hutchinson.
The CHIEF JUSTICE. Yes.
Mr. Manager HUTCHINSON. Thank you. Just a quick point on
that, because there was a question raised that the testimony of
Betty Currie in that circumstance was that she, I believe, did
not feel pressured. The President's counsel makes a big issue
of that, as if this is a fatal defect. It is not a fatal
defect.
In fact, it is really irrelevant because the issue is
witness tampering, obstruction of justice. The question is the
President's intent, not how Betty Currie felt under that
circumstance. She can characterize what she wishes. To me, it
is an example like, if you as a lawmaker are presented a bribe
of $100,000 to cast your vote in a particular way, you might
not be tempted in the slightest. You might say, ``Go your own
way.'' But it is still attempted bribery, attempted obstruction
of justice. So that is a critical question. This is one element
of obstruction of justice where each element has been met. The
proof is clear, without any question of a doubt, as well as the
rest of it.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. This is a question to White House
counsel from Senator Kennedy:
Would you please comment on any of the legal or factual assertions
made by the managers in their response to the previous question?
Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Let me
start by actually responding briefly to the question that was
asked, which is whether in fact the President violated the gag
order. I think it is important that we be very direct and
candid on this so the record is clear.
There is no question that a gag order was issued, that it
had been in existence for some 3 months, and it applied to the
parties and lawyers. It is important, I think, to understand
the purpose for which it was entered.
During the months of litigation in the Jones case, we have
seen a veritable flood of leakage out of the deposition, all of
which was adverse to the President. The judge made very clear
that her concerns were revelations to the press.
I think it is fair to say that even if one might argue that
the President talking to his secretary on the day after a
deposition was somehow talking to a person that he should not
after his deposition, I suggest that any person covered by--
certainly a party covered by a gag order, particularly the
President of the United States, is free to speak with those
from whom he needs assistance in the preparation of his
defense. That, of course, is at least in part what the
President has said here.
But let me be very clear that, to the extent the President
overstepped his bounds in terms of this gag order, that is a
matter of concern that the judge could take up, or the parties
could take up. And as far as I know--probably because their
sense of shame would not permit it--the parties on the other
side of the Jones case have never suggested that this was a
problem. Indeed, it was not a problem until we heard about it
recently in this Chamber.
More specifically, with respect to the substance of Mr.
Manager Rogan's response, and Manager Hutchinson's response, my
colleague, Ms. Mills, told you what the essential human dynamic
was that was going on with the President, who had just gone
through a deposition in which his worst fears were being
realized--his life, in terms of his relations with his family,
was beginning to unravel. He could see it coming. He could see
the press coming at him. They were already on the Internet.
There was no question in his mind that his worst fears of
public disclosure were about to be realized.
Put yourselves in a comparably traumatic human situation
and ask whether you wouldn't reach out to have this kind of
conversation with the one person you knew who was the most
familiar with the facts that Monica Lewinsky had, indeed, been
in and out of the White House, exchanged gifts, and done all
the other things that Betty knew about, even though she didn't
know about the primary extent of their relationship. But ask
yourself also whether, in fact, under any circumstances, either
on the 18th of January when the first conversation occurred, or
on the 20th of January when we believe the second conversation
occurred, if there is really any reason to believe that the
President had somehow invited Jones lawyers to make Betty
Currie a witness, because, as my colleague, Ms. Mills, put it
most sharply and most clearly, the last thing in the world the
President of the United States wanted to do was to invite
anybody to depose or have testify the one woman who knew that,
indeed, there had been gifts exchanged, and visits, and
letters. It simply doesn't make sense.
Lastly, let me, I suppose, just ask as the question has
been put to you on a couple of occasions, what is it that would
come from calling witnesses in the case? Ms. Currie has
testified not just once, but a multiple of occasions about the
events, no new facts had come out, and the only thing that you
would hear would be a repetition of the bottom-line assessment.
I could have said wrong when he said right and I was under no
pressure whatsoever.
Thank you.
The CHIEF JUSTICE. This is from Senators Gramm of Texas and
Smith of New Hampshire to White House counsel:
If you said that our oath to impartial justice required us
to allow the President to have a handful of witnesses to defend
himself, don't you believe that all 100 Senators would say
``yes''? How can we do impartial justice by turning around and
denying the House that same right?
Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
Senators, the answer to that question, I think, is really
very straightforward and easy and the fog of some of the
discussion which has been had on the subject over the last days
and weeks ought not to get in the way of this.
The House of Representatives, at least as they are
described by the managers they sent to you--I don't know how to
put this gently--violated their constitutional responsibility
in the handling of this matter. They characterized themselves
as nothing more than a grand jury, nothing more than a
screening device between the allegations transported to them by
the independent counsel, and the ultimate vote a month and 3
days ago. They felt, as they have reiterated constantly during
that process, that they knew everything they needed to know not
to make the judgment; that it was worth sending on to the
Senate for them to think about. But they knew everything they
needed to know, as you heard them say so eloquently and so
forcefully here, to remove the President of the United States
from office. Now they are saying to you, ``Well, maybe not.
There really isn't enough here to make that important critical
judgment.''
So having abandoned--not to put it too sharply--what I view
and I think most would view as their obligation to do the right
constitutional thing a month ago, they turn to us and say,
``Well, protect our managers rights to just add a little bit
and see if we can make it, and then we will turn to you and see
if you want to call witnesses in response.''
Senators, I really think they should have done it right the
first time. And they have told you--not back then, but they
have told you now--that they have done it right, because
otherwise they wouldn't, as a matter of their responsibility,
be able to stand in the well of this Senate and urge you to
remove the President of the United States. How could they make
that recommendation if they had any uncertainty? If they didn't
believe what was in those five volumes was sufficient under the
day, they couldn't. They couldn't.
Our rights are these for the President of the United
States: He is entitled to ask you whether, when the House of
Representatives voted to impeach him, they had enough evidence
to make one of the most serious constitutional judgments that
is entrusted to them. And it can't be that because they didn't
do it right then, that you and we are now asked to extend this
process just so that maybe if they go to the right person and
ask the right question, or find the right document something
will emerge that translates those five volumes into something
that really is a constitutional basis for the removal of the
President.
The CHIEF JUSTICE. This is from Senator Feingold to the
House managers.
In light of the allegations in the articles of impeachment
that the President is guilty of providing ``perjurious''
statements to a grand jury and has ``obstructed . . . the
administration of justice,'' is the appropriate burden of proof
for these particular articles ``beyond the reasonable doubt,''
as it would be in an ordinary criminal proceeding? Should a
Senator vote to convict the President based on his allegedly
committing these Federal statutory crimes if each of the
elements of the crimes have not been proven beyond a reasonable
doubt?
Mr. Manager BUYER. Thank you, Mr. Chief Justice. And I say
to Mr. Ruff, I violated no oath nor the Constitution, and I
think the House managers, in fact, followed the Constitution
when we served the articles of impeachment. I also note, for
historical note as well, Mr. Ruff, you know that in the
impeachment trial of Andrew Johnson, the House didn't even hold
a single hearing.
So I just want to be very up front and fair here.
With regard to the question that was asked by the
gentleman, the Constitution does not discuss the standard of
proof for impeachment trials. It simply states that the Senate
shall have the power to try all impeachments. Because the
Constitution is silent on the matter, it is appropriate to look
at past practice of the Senate.
Historically, the Senate has never set a standard of proof
for impeachment trials. In the final analysis to the question,
one which historically has been answered by individual Senators
guided by your individual conscience. You will note that
earlier one of the White House counsel stood up--and they like
to talk to you about criminal statutes and cite that it
requires the proof beyond a reasonable doubt. That is not so.
This argument has been rejected by the Senate historically.
For instance, in the impeachment trial of Judge Harry
Claiborne, at that time the counsel for Judge Claiborne moved
to designate beyond a reasonable doubt as the standard of proof
for conviction. The Senate overwhelmingly rejected the motion
by a vote of 17 to 75. You rejected that as a standard of
proof.
In the floor debate on the motion, the House managers
emphasized that the Senate has historically allowed each Member
to exercise his personal judgment in these cases. And during
the impeachment of Judge Hastings, Senator Rudman, in response
to a question about the historical practice regarding this
standard of proof that there has been no specific standard,
``You are not going to find it. It is what is in the mind of
every Senator, and I think it is what everybody decides for
themselves.''
The criminal standard of proof again is inappropriate for
impeachment trials. The result of conviction in an impeachment
trial is removal from office, not punishment. As the House
argued in the trial of Judge Claiborne, the reasonable doubt
standard was designed to protect criminal defendants who risked
forfeitures of life, liberty, and property. This standard is
inappropriate here because the Constitution limits the
consequences of a Senate impeachment trial to removal from
office and disqualification from holding office in the future,
explicitly preserving in the Constitution the option for a
subsequent trial in the courts.
In addition, the House argued in the Claiborne trial the
criminal standard is inappropriate because impeachment is, by
its nature, a proceeding where the public interest weighs more
heavily than the interest of the individual. Again, the
criminal standard of proof, i.e., beyond a reasonable doubt, is
inappropriate in an impeachment trial and, Senators, you are to
be guided by your own conscience in your decision.
The CHIEF JUSTICE. The President's counsel are asked by
Senators Thompson, Snowe, Enzi, Frist, Craig, DeWine, and
Hatch:
Four days after the President's Paula Jones testimony,
wherein he testified under oath about Ms. Lewinsky, why would
Dick Morris conduct a poll on whether the American people would
forgive the President for committing perjury and obstruction of
justice?
Mr. Counsel RUFF. I couldn't find any volunteers.
[Laughter.]
You know, I think the honest answer has two pieces to it. I
don't have a clue, and it ultimately--although I know it rings
all sorts of bells and the use of that name conjures up all
sorts of images, and that is why I am sure it finds its way
into this process from the managers' side. But if you look at
the record, other than the value that may come to the managers
of making reference to that conversation--and I have no idea
whether the conversation ever occurred or not--it seems to me
of absolutely no relevance whatsoever because, as far as I am
able to represent to you, and if the conversation occurred,
there is nothing in this record that suggests that it had any
impact on the conduct of the President or any other person. We
know that he did wrong. We know that he misled the American
people when he said that he had not had relations with Ms.
Lewinsky.
I am not sure what a conversation with Mr. Morris, if it
occurred, or a poll, if it was asked for, or what the
motivation behind that poll means once you come to grips with
the fact that the President of the United States was deceiving
his family, his child, his wife, his colleagues, and the
American people in that period in January.
Beyond that puzzlement about relevance, other than the
surmise that there must be some dark linkage between the poll
and some legal issue before you--and I haven't seen it--I am
really otherwise unable to answer your question.
The CHIEF JUSTICE. Senator Lieberman asks the House
managers:
The House managers argue that the President should be
removed from office because of the inconsistency between his
actions and the President's duty to faithfully execute the
laws. Given that any criminal act would arguably be at odds
with the President's duty to execute the law, is it your
position that the President may be impeached and removed for
committing any criminal act, regardless of the type of crime it
is? If the President were convicted of driving while
intoxicated, would that be grounds for removal? What if he were
convicted of assault?
Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. Excellent
question.
The answer is no, 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. Just remember this. Our past is
America's future in terms of the law. I would not want my
President removed for trivial offenses, and that is the heart
of the matter here.
I think I know why he took a poll. I think I know very well
what he was up to: That his political and legal interests were
so paramount in his mind, the law be damned and anybody who got
in his way be damned.
Those are strong statements, but I think they are borne out
by the facts in this case, and that is what I would look for. I
would look for a violation of the law that is the dark side of
politics. I would look for something like Richard Nixon did.
Richard Nixon lost faith with the American electoral process.
He believed his enemies justified being cheated; that when his
people broke into the other side's office, when confronted with
that wrongdoing, he legitimized it. He didn't trust the
American people to get it right, and he went out in shame.
My belief is that this President did not trust the American
legal system to vindicate his interest without cheating. My
belief is that when he went back to his secretary, it is not
reasonable that he was trying to refresh his memory and get his
thoughts together. My belief is that he tried to set up a
scenario that was going to make a young lady pay a price if she
ever decided to cooperate with the other side. I believe he did
not need to refresh his memory whether or not Monica Lewinsky
wanted to have sex with him and he couldn't. I don't believe he
was refreshing his memory when he asked his secretary: I never
touched her, did I?
I believe that you should only remove a President who, in a
calculated fashion, puts the legal and political interests of
himself over the good of the Nation in a selfish way, that you
only should remove a President who, after being begged by
everybody in the country, don't go into a grand jury and lie,
and he in fact lied. Nothing trivial should remove my
President. We need to try this case, ladies and gentlemen,
because you need to know who your President is.
Thank you.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. I would like to note that in the response to the
previous question, question probably No. 28, that it was not
filed by the managers; it was filed by a group of Senators.
recess
Mr. LOTT. With that, I ask unanimous consent that we take
another brief recess of 15 minutes.
There being no objection, at 4:18 p.m., the Senate recessed
until 4:40 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice. Mr. Chief Justice,
I had indicated that we will probably go 5 hours today, which
would take us to approximately 6 o'clock. But I think we will
certainly go for at least another hour or so, perhaps not quite
all the way to 6 o'clock, but we will talk to each other and
look for a signal from the Chief Justice about exactly when to
end the day's proceedings.
At this point, Mr. Chief Justice, I believe we are ready
for the next question. I believe the previous question came
from Senator Lieberman; therefore, I send the next question to
the desk.
The CHIEF JUSTICE. This question is from Senators Thompson
and Snowe, to the House managers:
Do the managers wish to respond to the answer given by the
President's counsel with regard to the poll taken by Dick
Morris?
Mr. Manager BRYANT. Thank you, Mr. Chief Justice.
Just before we recessed, there was a question directed to
the President's defense attorneys regarding the Dick Morris
poll. One of the responses to it was that it was basically
irrelevant. I think it is one of the more important things that
has occurred in this case, because--and I think it is very
important--because we get a look inside that window that is
blocked for the most part throughout these proceedings. We
really get an eye into the minds that are working here. Not
only does it say volumes about a person who has to take a poll
and decide whether or not to tell the truth, it also provides a
great deal of information toward the actual state of mind, the
actual willfulness, the actual intent of the actor in this case
who has had the poll taken.
Let me just read briefly from the referral regarding this
incident. It talks about how Mr. Morris tells the President
that this country has a great capacity for forgiveness and we
should consider tapping into it. The President responds,
``Well, what about that legal thing, you know, the legal thing,
you know, Starr and the perjury and all?'' And they go on and
have a discussion and decide to take a poll that night. Now
this is January 21.
And in all fairness to the President, it is not clear from
the record that I have that he had had a conversation with
Sidney Blumenthal and John Podesta that day, before this
effort--the poll was taken, and the results reported that same
day, late that evening--or whether the conversation with Mr.
Podesta and Mr. Blumenthal occurred afterwards. Those are the
ones, in essence, where he questioned what went on, and also
with Mr. Blumenthal fairly well attempted to discredit Ms.
Lewinsky, too. And you will see how that may or may not tie in,
again, depending on the chronology. But certainly all those
events happened the same day.
Mr. Morris takes the poll and reports later that day, later
that evening, the same evening, the 21st, the results of that,
and basically says the voters are willing to forgive the
President for adultery but not for the perjury or the
obstruction of justice. And then according to Mr. Morris, the
President answers, ``Well, we['ll] just have to win, then.''
And later the next day the President has a followup
conversation with Mr. Morris, in the evening, and says that he
is considering holding a press conference to blast Monica
Lewinsky out of the water. But Mr. Morris urges caution. He
says, ``Be careful.'' According to Mr. Morris, he warned the
President not to be too hard on Ms. Lewinsky because ``there's
some slight chance that she may not be cooperating with Starr,
and we don't want to alienate her by anything we're going to
put out.''
That is chilling. It truly is chilling that our chief law
enforcement officer, the person who sends our soldiers off as
Commander in Chief, to possibly die, the person who appoints
the Federal judges, nominates Supreme Court Justices, appoints
U.S. attorneys around the country who try 50,000 cases a year,
has that mentality. And it goes to the state of mind here. And
the willfulness and the intentions, from that point forward,
certainly are reflected in the perjury and the efforts to
continue the obstruction, the pattern, the overall pattern--not
just one little incident.
I urge you, Senators, as you consider this, to consider it
carefully. As I said in my opening remarks, do not isolate
little facts here and there and take the spins. But in every--
every--alleged act, ask yourselves the two questions--whether
it is the hiding of the gifts, the filing of the false
affidavit, letting Bob Bennett use that false affidavit while
sitting still, talking to Sidney Blumenthal and John Podesta
about what did not really happen, the job search--ask them,
every one of those, What was the result, what was the result of
those actions?
I think in every case you will see that something occurs to
block the Paula Jones case, the discovery of evidence, the
receipt of truthful testimony. Ask yourselves the second
question: Who benefits from that? And I will guarantee you
every time, in every one of those instances, it is the
President who benefits, who derives the effect of that. He is
either the luckiest man in the world because of this and having
people willing to commit crimes for him or he is somewhere in
the background orchestrating this.
The CHIEF JUSTICE. This is from Senators Leahy, Harkin,
Dorgan, and Reid of Nevada, to the President's counsel:
In his opening remarks to the Senate, Manager McCollum
stated, ``I don't know what the witnesses will say, but I
assume if they are consistent, they'll say the same thing
that's in here,'' referring to the 60,000 page record currently
before the Senate. I see no reason to call witnesses to provide
redundant testimony.
Could you comment on Mr. McCollum's statement and clarify
also the timetable which might have to be considered for
discovery if witnesses are called?
Mr. Counsel KENDALL. Mr. Chief Justice, I think, as I said
in an earlier question, that the answers the witnesses would
provide are already contained in the five volumes of testimony.
As I am sure you are aware, when I say five volumes, that is
not really five volumes, because on many of the pages the grand
jury transcript is shrunk, called a miniscript, so you get 6
pages of testimony per page. Your eyesight may fail you before
you get through. The witness testimony is there. I don't think
calling the witnesses again will add anything to that.
In terms of a discovery schedule, it is hard to say,
because we have had no opportunity to shape the record. We
don't know what we will need. We would need documents. We would
need testimony. One deposition could lead to another. I think
we are talking a matter of a few months to finally get through
it.
But I think the real question is, What questions are there
that have not been asked? I think if you ask that question,
What questions are there that have not been asked, you will
find there are no questions. In fact, there are questions that
have been asked a number of times.
Mr. Manager Hutchinson told you that the independent
counsel didn't have a chance to ask questions after the
President's testimony. Indeed he did. You will see that Ms.
Lewinsky was examined after the President testified, both in
the grand jury and in FBI interviews. I don't think that
witness interviews or further evidentiary proceedings will add
in any measurable way to the record before you.
The CHIEF JUSTICE. This question is directed to the House
managers by Senators Hatch, Thompson, DeWine, and Warner:
The unanimous consent agreement pending before the Senate
permits the filing of a motion to dismiss next week. What legal
standard should the Senate apply, and applying that standard to
this case, what specific acts of Presidential misconduct would
a Senator deem unworthy of impeachment by voting for a motion
to dismiss?
Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate,
the President wants all of the protections of the criminal
trial beyond a reasonable doubt, standard of proof, strict
pleadings, but yet deny us the right to call any witnesses.
In the House we did not call witnesses and there is a
reason. There are several reasons for that. First of all, 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. We had an election
intervene, we had Christmas, but we did--because we had 60,000
pages of sworn testimony, transcripts, depositions, grand jury
testimony, and we had a lower threshold.
The threshold in the House was for impeachment, which is to
seek a trial in the Senate. We could not try the case in the
House. The Constitution gives the Senate the exclusive right to
try the case. All we could do was present evidence sufficient
to convince our colleagues that there ought to be a trial over
here in the Senate. And we did that.
But now that we are over here--by the way, we were roundly
criticized for not producing any witnesses. And I might add,
Mr. Kendall has said repeatedly they did not have a fair
discovery process; they didn't have any witnesses and weren't
permitted to cross-examine.
I want to tell you, repeatedly--repeatedly--I invited the
President's lawyers, the staff of the Democrats on the House
Judiciary Committee: Any witnesses you want, call them; give me
their names and we will bring them in and you can cross-examine
them to your heart's content.
No, they never did. Finally, they brought in some
professors and Mr. Ruff testified, Mr. Craig testified. But
they didn't want, in fact, any witnesses. That is the last
thing they wanted. They had full opportunity to call them, and
I really, really, bristle when they say, ``You were unfair.''
We wanted to be fair. We tried to be fair because we understand
you need a two-thirds vote to remove the President. We needed
Democratic support. So far we had none. That is OK. Let the
process play itself out. But we were fair.
And when Mr. Kendall says they had no opportunity, he means
they didn't avail themselves of an abundant opportunity to call
witnesses.
A motion in lieu of a trial should provide that all
inferences, all fact, questions, be resolved in favor of the
respondent, the House managers. I don't think that is going to
happen. I think by dismissing the articles of impeachment
before you have a complete trial, you are sending a terrible
message to the people of the country. You are saying, I guess
perjury is OK, if it is about sex; obstruction is OK, even
though it is an effort to deny a citizen her right to a fair
trial. You are going to say that even when judges have been
impeached for perjury--and, by the way, the different standards
between judges and the President: 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. So there
is a difference, and the standard ought to be better and more
sensitive for the President because the President is such an
important person.
Look, the consequences of cavalier treatment of our
articles of impeachment, your articles of impeachment: You
throw out the window the fact that the President's lies and
stonewalling have cost millions of dollars that could have been
obviated. The damage to sexual harassment laws--you think they
are not going to be damaged? They are, seriously, making it
more difficult to prosecute people in the military or elsewhere
for perjury who lie under oath. Those are serious consequences.
I know--oh, do I know--what an annoyance we are in the
bosom of this great body, but we are a constitutional
annoyance, and I remind you of that fact.
Thank you.
The CHIEF JUSTICE. This question is from Senator Durbin to
counsel for the President:
Can you comment on Manager Hyde's contention that the
President was free to call witnesses before the House, but that
the House did not have the time to do so, or to call any
witnesses?
Mr. Counsel RUFF. Mr. Chief Justice, I think it is
important to understand the reality of what is going on in the
House. Most of you know something of it by simply the virtue of
press coverage. But let me tell you what it was like from the
perspective of the President.
From the very first moment when we began to speak with
representatives of the Judiciary Committee--whether senior
staff or the chairman, who is always gracious--the one thing we
said was, ``Please tell us what we are charged with, please.''
And we went from Mr. Schippers' extensive opening discussion of
15 possible violations of law to an ever-shifting body.
It wasn't until I was within literally a few minutes of
completing my testimony on December 9 that we were ever honored
with anything that looked like a description of the violations
that the President was charged with, and those came in the form
of hard draft articles of impeachment.
I think, indeed, if you will all remember back--if any of
you were watching that day--I was actually given a draft copy
of those articles just as I was completing my testimony, and
then they were snatched back because it was premature for the
President's counsel at 4:30 in the afternoon on December 9 to
know what the President was charged with.
One thing you generally like to know as a litigator in any
forum, before you start thinking about producing exculpatory
evidence, as we were asked to do, or thinking about calling
witnesses, is to sort of know what you have to defend against.
In any forum, whether it is criminal or civil or legislative,
the accused generally has that right.
Beyond that, as you all know--indeed, as Mr. Manager Hyde
has indicated--we were operating on a very fast track. We
asked, for example, when the issue arose as to whether or not
the staff of the committee would take depositions, whether we
would be entitled to be present, because we knew that none of
them was on the calendar to be called in any open hearing, and
we were denied that opportunity, theoretically because under
the policies of the committee it was not appropriate for the
President's counsel to be present at the only opportunity that
certain witnesses would ever have to testify under oath.
It seems odd to me, when you come right down to it, that we
should be accused of failing in our duty, with the burden on
the House Judiciary Committee to make its case and our right to
respond, that the House, having determined never to call a
witness who knew anything firsthand, we should somehow be
charged with having to fit into this discovery process.
Discovery is very different, as all of you understand, from
calling a witness--whoever it may be--in public, before the
full Judiciary Committee, and having the opportunity to
examine. We were excluded from whatever true discovery process
might have been involved, and left only with this notion that,
in the absence of any specific charges, we were to call
witnesses to defend ourselves. I suggest to you that in any
setting that we are used to, whether those of you who are
litigators or those of you who are simple observers of the
justice system, that is a very long process, indeed.
The CHIEF JUSTICE. This question is from Senator Nickles to
the House managers:
Which of the President's statements not already discussed
today do you believe to be of particular importance to the
perjury charge?
Mr. Manager ROGAN. Thank you, Mr. Chief Justice. I thank
the Senator for the question. I will keep one eye on the clock
and stay within the 5-minute rule, so obviously I won't be able
to give a comprehensive list of that which we submit to the
Senate is perjurious. Let me try to get through at least one or
two.
One example that I invite the Senate's attention to is the
answers the President gave in the grand jury about his attorney
using Monica Lewinsky's false affidavit. Bear in mind, again,
the predicate facts for this. Judge Susan Webber Wright, in the
deposition, had ordered the President to answer questions
relating to whether he ever had sexual relationships with
subordinate female employees in the workplace as Governor or as
President, because that is fair game in any sexual harassment
suit. Victims of harassment in the workplace are entitled to
discover that information.
The President was able to get Monica Lewinsky to file a
false affidavit in the Jones deposition. And when that
affidavit was in hand and filed, as soon as the attorney for
Paula Jones asked the first question about Monica Lewinsky, the
President's attorney, Mr. Bennett, put forth that affidavit and
objected to the attorneys even asking the question. He said,
``There is no good-faith belief that this question should be
asked because of the affidavit.'' And the President did
absolutely nothing to correct the record.
When this came up in the grand jury, the President was
asked about the affidavit and the statement that Mr. Bennett
made to Judge Wright that ``there was no sex of any kind, in
any manner, shape or form.'' And the attorney, Mr. Bittman, at
the grand jury, referred to that and said to the President,
``That statement is a completely false statement,'' and asked
the President to explain. This was the President's answer:
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.
Then the President went on to say:
I was not paying a great deal of attention to this
exchange. I was focusing on my own testimony.
Rather than simply give a truthful and complete answer to
the grand jury in their criminal investigation, the President
gave a bifurcated answer that essentially invited the grand
jury to accept one of two explanations.
Explanation No. 1: I wasn't paying attention to my attorney
when he said that. I was busy thinking of other things.
Or, if you don't like that explanation: I was paying such
specific attention to what my attorney was saying that I
focused on the tense of what the word ``is'' meant--as if to
suggest when Mr. Bennett said that there is no sex of any kind,
he meant there was no sex that day because he was there being
deposed before Judge Wright. Under either scenario, the
President absolutely failed in his obligation to provide the
grand jury conducting a criminal investigation into possible
obstruction in the Paula Jones case--he failed in his
obligation to tell the truth, the whole truth, and nothing but
the truth.
You have seen the evidence just from the initial
presentation. No. 1, when the President said he wasn't paying
attention, that was negated by watching the videotape. The
President was paying very close attention. Why was he paying
such close attention? Because the fate of his Presidency hung
on the answer to that question. This is the most important
question in the President's political life. Is he going to have
to disclose information that he thought would help destroy his
Presidency?
You don't even have to accept the representation from the
videotape to know the President testified falsely, because Mr.
Bennett did us the favor of not asking us simply to rely on
watching the President pay attention to the testimony. Mr.
Bennett then read the President the portion of Ms. Lewinsky's
affidavit in which she denied having a sexual relationship with
the President, and he asked the President if Ms. Lewinsky's
statement was true and accurate. The President said, ``That is
absolutely true.''
On August 6, Monica Lewinsky, incidentally, testified
before the grand jury, and she didn't play these games with the
grand jury, like ``it all depends what `is' means,'' or ``I
wasn't paying attention.'' She was asked a straightforward
question:
Paragraph 8 of the affidavit says, ``I have never had a
sexual relationship with the President.'' Is that true?
Answer by Monica Lewinsky:
No.
Mr. Chief Justice, I see my time has expired. I will be
happy to invite additional questions relating to additional
specific examples.
The CHIEF JUSTICE. This is to the President's counsel from
Senator Schumer and Senator Kerrey of Nebraska:
Isn't it true that the alleged perjurious statements have
changed in number and substance since the OIC first delivered
its referral to the House, and that the referral, Mr.
Schippers' presentation before the House, the majority report,
the trial brief, and the managers' statements before this body
contain different allegations of what constitutes the alleged
perjurious statements?
Mr. Counsel CRAIG. Thank you, Mr. Chief Justice. The answer
to that question is, yes. They were changing right up until the
time we met, the very first day of this trial when Mr. Manager
Rogan made his presentation. What he said when he described
perjurious statements alleged against the President was
different from what was appearing in the trial brief before.
And that was the end of a long period of time where every time
we heard what the allegations were, at least when it came to
the issue of perjury, they changed.
There were allegations added; there were allegations
subtracted. Two of the allegations that Mr. Schippers presented
when he made his statement to the Judiciary Committee were
withdrawn. So it was a process where we never had a chance to
sit down, as you should in a very serious and fair and
evenhanded exercise, and focus on what precisely it was that
the President said in the grand jury that was perjurious.
As to the specifics of the allegation that we have been
discussing just now, when I first opened this discussion, I
said it is very important to look at the record. Do not allow
anyone to misrepresent the record because you are setting up
the President's statement and saying that is perjurious, when
the President's statement may well be something very different
in the record.
When Mr. Rogan first made his argument on this issue, he
misrepresented the record as to what the President said in this
case. I tried to correct him about what the President actually
said. He never claimed, at the moment these questions were
being asked back and forth, that he thought about the current
tense. Even as I was speaking, Mr. Rogan was out talking to the
television cameras, saying precisely the same thing. Now we
have this same misrepresentation the third time.
I will say it one more time. He answered the question. He
wasn't focusing on it. He answered that four times the same
way. It was not a bifurcated answer; it was one answer. He was
not paying attention at that particular moment. It moved very
quickly; the moment was passed and they were into the judge
talking and debating with the lawyers. That was his answer.
There was no other answer.
Then, at the grand jury some 7 months later, he was read
that statement by the special prosecutor. The question was,
``And this statement was false, isn't that true?'' The answer
the President gave was that, well, in fact, it depends on the
meaning of the word ``is.''
He didn't claim that that was what he was thinking at the
time in the Jones deposition. He said very clearly, ``I never
even focused on that issue until I read it in this transcript
in preparation for this testimony.'' It is on page 512, Mr.
Rogan. ``I never focused on that issue until I read it in this
transcript in preparation for this testimony.'' There was not a
bifurcated answer. He answered directly. He wasn't focusing on
it.
That is a problem we have had throughout this case when it
comes to the perjury allegation. It was a problem we had with
the earlier one. If you don't have the specific statement
quoted, it is impossible to defend it. It is unfair.
Thank you very much.
The CHIEF JUSTICE. This question from Senator Lott to the
House managers:
Do you wish to respond to the answers just given by the
President's counsel?
Mr. Counsel ROGAN. Mr. Chief Justice, I am not sure if I
wish to respond or I feel the need to respond. But in either
event I will take advantage of the opportunity. I thank the
Senator for posing the question.
Try as they might, the facts are clear. The President, in
his August deposition, attempted to justify away, attempted to
explain away his perjurious conduct on January 17 when he was
deposed. And I am not going to stand and quibble with Mr. Craig
over this beyond what was already noted.
What I prefer to respond to is the bigger question that the
White House attorneys have raised on a number of occasions--the
idea that the President has been treated unfairly because he
hasn't had sufficient notice as to what the allegations are
against him.
Contemplate that for just one moment. Because, were that to
be true, the President of the United States would have to be
not a human. He would be an ostrich with his neck so far down
in the sand--that which every schoolchild now in America knows,
that which every person in America with a television or a radio
or Internet access knows, and is obvious to everybody which
they claim is not obvious to the President.
When the President of the United States testified at the
deposition and before the grand jury--that brought us into late
August of 1998, about a month after that--the Office of
Independent Counsel filed a report. The binder was about 445
pages. The written document was a little more than 200 pages.
But within the four corners of that report are all of the
allegations, are all of the facts, and all of the circumstances
that were forwarded to the House of Representatives for review.
The House Judiciary Committee, specifically at the request of
the White House and at the request of our Democrat caucus, did
not go beyond the four corners of Judge Starr's report. Not
only did the President have the benefit of Judge Starr's
report, he also had the benefit of the written report from the
House Judiciary Committee--same facts, same circumstances,
nothing changed.
And, by the time we came to the Senate to try this case,
the President had the benefit of the resolution passed by this
body that said at the initial presentations ``we will not go
beyond the record already established''--the record that was
established in the Office of Independent Counsel report, in the
committee's report, and in our hearings. For a party to be
aggrieved, as the White House counsel suggests, to have been
given no notice, it is amazing to me how within minutes of
Judge Starr's report being filed they had already filed a
response. I believe there were two supplemental responses
within 48 or 72 hours. They have always beaten us to the punch
on the response. They have an army of lawyers here able to
stand up on a moment's notice and respond. I just do not
understand how they can make the case fairly that this is all
now a product of a surprise; that they have not been given a
proper opportunity to review the facts. They have seen these
facts since Judge Starr submitted his report to Congress some 5
months ago. The facts haven't changed. The circumstances
haven't changed. The quotations haven't changed. The
transcripts haven't changed. Nothing has changed except their
attempt to wiggle out from under the truth.
The CHIEF JUSTICE. This question is from Senators Boxer,
Schumer and Kohl to the President's counsel:
To the best of your knowledge, has the United States
Department of Justice ever brought a perjury prosecution where
the alleged perjury was inferred from the direction in which
the defendant was looking?
Mr. Counsel RUFF. Mr. Chief Justice, the answer is, not to
my knowledge. I will not go further than that because somebody
in the army of people on the other side might dodge one up, but
I doubt it very much.
If I may impose on the kindness of the authors of that last
question, I will take just a moment to comment briefly on Mr.
Manager Rogan's rejoinder to our response to whatever--
particularly because Mr. Manager Rogan has been a judge,
prosecutor, and others have as well, it does seem mildly odd to
me that the answer to the question your charges aren't known or
are vague is, look at that pile. You will find them right in
there. You fellows, you guys did a good job responding to what
you could. So you must be perfectly well prepared to defend
against whatever charges we bring. I don't think there is a
judge anywhere in the United States, from the highest court or
the lowest court, who would accept either explanation from a
prosecutor.
The CHIEF JUSTICE. This question is directed to the House
managers by Senators Hatch and Burns:
The President's lawyers cite in their brief Professor
Michael Gerhardt for the proposition that for an act to be
impeachable there must be a nexus between the misconduct of an
impeachable official and the latter's official duties. But
isn't it true that Professor Gerhardt also stated that
impeachment may lie for conduct unrelated to official duties if
such conduct is outrageous and harms the reputation of the
office?
And this citation is to the testimony of Mr. Gerhardt.
Would the House managers care to respond to this?
Mr. Manager CANADY. Mr. Chief Justice, Members of the
Senate, I do appreciate the opportunity to respond to this
point. I think this is a very important point.
I have a great deal of respect for Professor Gerhardt. He
has said a number of different things on this subject. But the
point in the question is directly on point.
I would also like to quote something else that Professor
Gerhardt has said that I made reference to without specifically
naming him as the source in this statement which I gave to the
Senate on Saturday.
He said in a law review article, which he wrote a few years
back:
There are certain statutory crimes that if committed by
public officials reflect such lapses of judgments with such
disregard for the welfare of the state, and such lack of
respect for the law and the office held that the occupants may
be impeached and removed for lacking the minimal level of
integrity and judgment sufficient to discharge the
responsibilities of office.
I believe that what Professor Gerhardt makes reference to
there is exactly what we have before the Senate in this case.
What we have before the Senate in this case is a case where the
President of the United States has engaged in a course of
conduct involving violations of the criminal law. By doing so,
he has evidenced a lack of respect for the law, that
demonstrates a lack of the minimal level of integrity that we
are entitled to expect of the Chief Executive of the United
States, of the person who, under our system, is given the
preeminent responsibility to take care that the laws will be
faithfully executed.
The CHIEF JUSTICE. This question is from Senator Dodd to
the counsel for the President:
Given the election of a President of the United States is
the most important and solemn political act in which we as
citizens engage, how much weight should the Senate give to the
fact that conviction and removal by the Senate of the President
would undo that decision?
Mr. Counsel RUFF. That question, of course, goes right to
the heart of what the framers were thinking, and the standards
that I suggest every sensible analyst of this problem has
arrived at, whether they might be called supporters or
opponents of the President. There is one critical issue that
everyone has to address, which is that removal and undoing the
will of the people.
Mr. Manager Graham acknowledged that that's what we were
all about here, whether we should undo an election. But if you
go back to the very basic debates of the framers in 1787, and
you recall both Mr. Manager Canady and I talked about the
moment in time in which it was suggested by Mr. Mason that
perhaps the scope of the standard for impeachment could be
broadened, and the response made then and clearly the principle
underlying everything that the framers spoke about in 1787 was:
We cure almost all our problems with an elected official
through the electoral process.
And even if you look at what President Ford had to say 29
years ago on the subject, which I also cited to you as he spoke
about the difference between judges and Presidents, he said for
the House to impeach and the Senate to remove the President or
Vice President as opposed to a judge in midterm would require
proof of the most serious offenses, and we know that those most
serious offenses, the only ones the framers contemplated as a
basis for overturning the will of the people, were those that,
as the minority said in 1974 in its report on the subject, were
a danger to the state--a danger to the state. That is all that
can justify overturning the voice of the people.
The CHIEF JUSTICE. This question is from Senator Lott. It
is addressed to the House managers:
Didn't the framers of the Constitution understand in 1787
that the conviction and removal from office of a President
would, under the system they devised, reverse the result of a
national election by elevating, not a President's Vice
Presidential running mate, as we would do today, but the person
who had received the second highest number of electoral votes?
Mr. Manager HYDE. Mr. Chief Justice, the statement has been
made with some fervor that if the President were removed upon a
finding of conviction of the articles or an article of
impeachment, it would reverse a national election. I just
respectfully say that is not true. The election is provided for
in the Constitution and so is impeachment. They are processes
of equal constitutional validity. And should the Senate remove
the President, Bob Dole will not become President, Jack Kemp
will not become Vice President, but Mr. Gore will move up to be
President, and the same party, the same programs, I dare say,
will continue. It will not reverse an election; it will fulfill
a constitutional process that our Founding Fathers were wise
enough to provide for.
The CHIEF JUSTICE. Senator Edwards asks the House managers:
Are there any statements contained in the exhibits used
during the managers' presentations or omissions from those
exhibits that you believe, in the interest of fairness or
justice, should be corrected at this time? If so, please do so
now.
Mr. Manager BUYER. Mr. Chief Justice, with regard to our
own exhibits?
The CHIEF JUSTICE. Perhaps I should ask Senator Edwards.
Mr. EDWARDS. Yes, Mr. Chief Justice, with regard to their
exhibits.
Mr. Manager HUTCHINSON. Mr. Chief Justice, I would be happy
to take advantage of the 5 minutes, but I have talked to the
other managers and we are not aware of any corrections that
need to be made on any of our exhibits we have offered to the
Senate.
Mr. KERRY addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Massachusetts.
Mr. KERRY. I simply ask whether or not that answer was in
fact fully responsive to the question. I believe the question
also asked whether or not there were any omissions.
The CHIEF JUSTICE. The Parliamentarian advises me this is a
nondebatable period and the inquiry is out of order, and I so
rule.
This is from Senator Roberts. It is directed to the House
managers.
Given the fact that the White House characterizes the
assistance that Monica Lewinsky received as ``routine,'' does
the record reflect that any other White House interns other
than Monica Lewinsky received the same level of job assistance
from Vernon Jordan, John Podesta, Betty Currie, and then-
Ambassador Richardson?
Mr. Manager McCOLLUM. Mr. Chief Justice, if I might, as far
as we know as House managers, in the record the only comments
about assisting anybody else other than Monica Lewinsky, of any
nature, were made in testimony by Vernon Jordan. He did assist
other people. But I don't believe there is anything, to the
best of our knowledge and recollection--of course, we have a
lot of paperwork here--that he referred to assisting another
intern or anyone in a like position. And certainly there was no
indication that the kind of intensity of that assistance
occurred in the kind of manner in which the proceedings did
with developing her job opportunities, that is, somebody in
this direct involvement with the President, or certainly nobody
with a close relationship and interest on the part of the
President. There certainly was nothing in the record to show
that, and that is, of course, central to this entire case as
far as the job search part of this obstruction of justice is
concerned.
Thank you.
Mr. ROBERTS addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Kansas.
Mr. ROBERTS. I had directed that question, sir, to the
White House counsel. It was my intent to direct it to White
House counsel. I do not know what the proper procedure would be
at this time.
The CHIEF JUSTICE. Is there any objection to the White
House counsel answering the question at this time?
Without objection, the White House counsel may answer.
Mr. Counsel RUFF. Thank you, Mr. Chief Justice. This may be
a moment worth noting in the proceedings because in essence I
think we are in agreement with Mr. Manager McCollum.
I would perhaps only do this, and that is, to note with
some greater emphasis Mr. Jordan's testimony, which we will be
glad to highlight if we have another opportunity here, that
indeed he has regularly and frequently assisted young people,
and not-so-young people, in finding jobs.
Again, I couldn't tell you whether any of them had been an
intern at any time. I would only note that, of course, Ms.
Lewinsky was not an intern at the time Mr. Jordan was helping
her, but rather was an employee of the Pentagon.
But beyond that, and perhaps with somewhat greater emphasis
on Mr. Jordan's emphasis on behalf of young people in the city,
I am in essential agreement with Manager McCollum.
The CHIEF JUSTICE. This is a question from Senators Dodd
and Levin to the House managers:
On page 11 of House committee report accompanying H. Res.
611, the report states that Judge Susan Webber Wright issued
her order ``on the morning of December 11th.'' Will the
managers now acknowledge that the report was factually
incorrect? Yes or no?
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. If I
look back at the facts of this--of course, I have explained
earlier today that the action on the 11th was initiated or
triggered by the witness list that came in on December 5, that
the President knew about it at the latest on December 6.
On the 11th, Judge Wright entered an order in that case
which allowed the Jones lawyers an opportunity to ask questions
about the prior relationships with other Federal employees or
State employees.
Mr. DODD addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Connecticut.
Mr. DODD. Mr. Chief Justice, as one of the authors of the
question, a yes or no answer was requested and I object to the
answer.
The CHIEF JUSTICE. The Chair has not tried to police the
responsiveness of the answers to the questions, so I am going
to overrule that objection.
Mr. Manager HUTCHINSON. I am not trying to be evasive at
all to the Senator, but I did want to lay the groundwork for
this and also to get my thoughts so that I would be as accurate
as possible.
The order that Judge Wright entered was on December 11. I
do not know the precise time. I believe it was in the afternoon
that it was entered, and it was followed by the telephone call
with the participants. So I believe that it was entered in the
afternoon of the 11th, and not in the morning of the 11th.
And, of course, that was not in my presentation. My
presentation referred to the order being entered on December
11, and that the action on the 11th, of course, was triggered
by the witness list on December 5.
I think that completely answers that question. If there is
some other--I would be happy to respond to anything more
specific on that issue.
The CHIEF JUSTICE. This question is directed to the House
managers from Senators Domenici, Frist, McCain and Warner.
What is the historical significance and legal import of
taking an oath for performance in public office? What is the
historical significance and legal import of taking an oath to
tell the truth in a legal proceeding? Please discuss whether
oath-taking in such circumstances is a public matter.
Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate,
the taking of an oath is a formalization, a solemnization of
truth. You call upon God to witness to the truth of what you
are saying. In the long march of civilization, the oath has
taken the place of trial by fire, trial by combat, trial by
ordeal. It says, in the most sober way: You can trust me. You
can believe in me. It is verbal honesty. Our legal system
depends on it and our justice system depends on it. The oath
underscores our humanity. The oath is an aspect of our sacred
honor.
The CHIEF JUSTICE. This is from Senator Kerry of
Massachusetts to the counsel for the President:
Is it fair to say that the articles and manager
presentations stress the Jones perjury allegations rejected by
the House, because they cannot credibly, on the law, satisfy
the elements and argue perjury in the grand jury investigation?
Mr. Manager RUFF. Mr. Chief Justice, I am a little bit
troubled at answering that question, not because I don't feel
strongly about what the answer is but I do not want to suggest
in any way that the motivation of the managers is less than
professional and appropriate. But I do think that, indeed, they
know, as they think through the proof that they have or that
they even might ever contemplate, that the President of the
United States, when he began his grand jury testimony by making
the most painful admission a human being could ever make, and
thereafter did his best--albeit in the face of tough and
probing and repetitive questioning for 4 hours--did his best to
tell the truth.
That they had a very difficult, indeed virtually
impossible, task to persuade any dispassionate trier of fact
and law that he had intentionally given false testimony, and
you can see that evidenced, I think most clearly, if you look
at some of the first allegations made as to what constitutes
perjury--things like the use of the words ``on certain
occasions'' or ``occasionally'' to describe a battle over
whether 11 or 20 or 17 fit within that description. It does
seem fair to say that they would not be fighting those battles
in this Chamber if they had any real confidence in their cause
on article I, and thus they do seek, for whatever tactical or
other purpose, to try to bring in those things which so many of
their colleagues rejected out of hand in the House of
Representatives.
The CHIEF JUSTICE. This question is directed to the House
managers from Senators Hatch, Thompson and DeWine:
In her presentation to the Senate, Ms. Mills emphasized
that Ms. Lewinsky testified on ten different times about the
subject of gifts. Did she ever testify that the President told
her that she must turn over the gifts because that is what the
law requires?
Mr. Manager McCOLLUM. Mr. Chief Justice, in response to
that question the answer is no, she did not. As a matter of
fact, that was and is the central point on the part of the gift
question. At no time, she says, did the President instruct her
to turn those gifts over. I think that is a telling point. In
fact, it is a telling point throughout the entire process of
the scheme and all the things that happened and why you have to
follow, in my judgment, Senators, the issue of this whole
process through the scheme that was devised at the beginning,
all the way to the end.
The President was going to ultimately lie to conceal from
that court in the Jones case, the truth of his relationship
with Monica Lewinsky and, therefore, he had to set it up for
the affidavit, the gifts, et cetera. At no point in time, she
says in her testimony, did he ever ask her to come clean. Until
the time the affidavit was discussed, on the night of December
17, he never suggested she tell the truth there. If you
remember we put that up here several times to you. Even though
he may not have directly told her to lie, he certainly gave her
every indication, she said, from the standpoint of the
background that they had had before and what he said that night
about the cover stories.
And with regard to the gifts, the same thing is true. She
gave him an opportunity on the day of December 28. Whether
there are 10 statements or however many there might be--and
they say there are 10; I trust the judgment of the White House
counsel--there were 10 different statements, the most
significant of which, of course, is the grand jury testimony
she gave on the subject of what happened that day when she
discussed the gifts with the President because that is when her
recollection had been best refreshed. She had been over it a
lot of times. She had much preparation for that, and I submit
to you that barring bringing her in--which we of course suggest
you do, and let us ask her to confirm all of this again--you
must assume the logical thing to do is to assume the grand jury
testimony, the most perfected testimony you have, is the most
accurate and most reliable, and on that occasion particularly
she emphasizes the fact that with regard to the gifts there
certainly was no request by the President that she reveal those
gifts.
Now, of course he says he did. He says he did later. But
that is absolutely contradicted by her testimony.
The CHIEF JUSTICE. Senator Reid of Nevada sends this
question for White House counsel:
Would you please comment on any of the legal or factual
assertions made by the managers in their response to the
previous question?
Ms. Counsel MILLS. There is, obviously, a conflict in the
testimony between the President, who said he directed Ms.
Lewinsky to turn over whatever she had, and Ms. Lewinsky's
statements. I would just like to read to you, given the House
managers' reference that we must credit her grand jury
testimony, the version of her grand jury testimony, which you
all will no doubt remember it as one of the ones I read to you
that was never presented by the House managers, and that is on
August 20, 1998, after the President had testified:
It was December 28th. I was there to get my Christmas gifts
from him, and we spent about 5 minutes or so, not very long,
talking about the case. And I said, ``Well, do you think''--and
at one point I said, ``Well, do you think I should?'' And I
don't think I said, ``Get rid of, but do you think I should put
away, give to Betty or someone the gifts''--and he--I don't
remember his response. I think it was something like ``I don't
know'' or hmm or there was really no response.
On that same day when she was asked that same question, if
it is her grand jury testimony that is to be addressed, she
also said:
A Juror. Now, did you bring up Betty's name or did the
President bring up Betty's name?
The Witness. I think I brought it up. The President
wouldn't have brought up Betty's name because he didn't--he
didn't really discuss it.
All of those are in her grand jury testimony. So her grand
jury testimony is the testimony that states he might not have
given any response. So, to the extent the House managers'
theory is that ``Let me think about it'' leads to obstruction
of justice, her grand jury testimony does not state that.
The CHIEF JUSTICE. Senators Specter, Helms, Abraham,
Ashcroft, and Stevens direct this question to the President's
counsel:
President Clinton testified before the grand jury that he
was merely trying to ``refresh'' his memory when he made these
statements to Betty Currie. How can someone ``refresh'' their
recollection by making statements they know are false?
Ms. Counsel MILLS. I think one of the things I tried to
address in addressing what the President's testimony was with
respect to his conversation with Ms. Currie was obviously he
was understandably concerned about the media attention that he
knew was impending. And in particular, as he walked through the
questions, he was thinking about his own thoughts and seeking,
as I think I talked about, concurrence or input or some type of
reaction from Ms. Currie.
I think in making those statements, he was asking questions
to see what her understanding was based on some of the
questions that had been posed to him by the Jones lawyers,
because some of them were so off base. And so he was asking
from Ms. Currie essentially what her perception was, what her
thoughts were.
I think as you walk through each one of those questions, he
was expressing what his own thoughts and feelings were with
regard to this and was seeking some concurrence or affirmation
from her. I think he was agitated. I think he was concerned. He
knew what was going to happen, and I think that is why he posed
the question in the way that he did.
The CHIEF JUSTICE. A question from Senator Bayh to counsel
for the President:
Can you comment on the importance of ``proportionality'' to
the rule of law?
Mr. Counsel RUFF. How much time do we have? Thank you,
Senator.
I think proportionality, in all its many guises, is an
issue that has given us some pause, going well back into the
investigative phase of this matter, and I think many who have
watched and who have made their lives and careers as
professional prosecutors, indeed many who have been criminal
defense lawyers or just plain sensible citizens watching, have
asked whether the resources and
the energy and the time devoted to this matter and the manner
in which it has been treated at every stage before it ever got
to the House of Representatives does, in fact, reflect an
appropriate assessment of the conduct being investigated and
the seriousness of the conduct, which is not ever to suggest
that we condone perjury or obstruction of justice.
We all recognize, if those offenses have been committed,
they are worth pursuing. But one only need look at the
testimony and the professional prosecutors who testified before
the Judiciary Committee to get a sense of what the world of
professional prosecutors would do faced with these kinds of
allegations in this kind of setting, and that really is the
key: How many prosecutors would ever reach into the middle of
an ongoing civil litigation and bring these kinds of charges?
The proportionality, obviously, has other implications and
certainly goes right to the heart of the role played by this
body. That is, what is the proportional response to whatever
you think of the President as a man, whatever you think of his
conduct. Even if you should conclude--although we do not
believe you should--that he violated the law in some respect,
what is the constitutionally proportional response to your
judgment. And there you go right back to the essence of what
the framers were talking about, which is responding with the
ultimate sanction only when the ultimate problem is posed to
you.
I suggest, as I have on too many occasions, I fear, that if
that is the proportionality question you are asking--and all
must at some point ask that question--the answer has to be
clear, that no one ever thought in 1787 and, I suggest to you,
in the intervening 212 years that it would be a proportional
response to the conduct alleged here to remove a President.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Order of Procedure
Mr. LOTT. Mr. Chief Justice, I believe we have reached a
point where we can take a break. I think we have had responses
to approximately 50 questions today. Now we will have a chance
to assess, on all sides, what additional questions might be
needed to be asked tomorrow. I remind my colleagues that we are
scheduled to resume at 10 a.m. on Saturday.
notice of intent to suspend the rules of the senate by senator
hutchison, senator specter, senator lieberman, senator hagel, senator
collins, and senator snowe
In accordance with Rule V of the Standing Rules of the Senate, I
(for myself and for Mr. Specter, Mr. Lieberman, Mr. Hagel, Ms. Collins,
and Ms. Snowe) hereby give notice in writing that it is my intention to
move to suspend the following portions of the Rules of Procedure and
Practice in the Senate When Sitting on Impeachment Trials for the final
deliberation on the articles of impeachment of the trial of President
William Jefferson Clinton:
(1) The following portion of Rule XX: ``, unless the Senate shall
direct the doors to be closed while deliberating upon its decisions. A
motion to close the doors may be acted upon without objection, or, if
objection is heard, the motion shall be voted on without debate by the
yeas and nays, which shall be entered on the Record''; and
(2) In Rule XXIV, the phrases ``without debate'', ``except when the
doors shall be closed for deliberation, and in that case'' and ``, to
be had without debate''.
ADJOURNMENT UNTIL 10 A.M. TOMORROW
Mr. LOTT. If there is nothing further, I move we adjourn,
Mr. Chief Justice.
The motion was agreed to and, at 5:49 p.m., the Senate,
sitting as a Court of Impeachment, adjourned until Saturday,
January 23, 1999, at 10 a.m.
Saturday, January 23, 1999
[From the Congressional Record]
The Senate met at 10:05 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Almighty God, You have taught us to seek and maintain
unity. You've also taught us that this unity is so precious
that we should be willing to sacrifice anything in order to
maintain it--except the truth. Help us to affirm the great
undeniable truths that twine the bond of oneness: We are one
Nation under Your sovereignty; our patriotism binds us together
inseparably; our commitment to the Constitution is unswerving.
In these bonds that cannot be broken, this Senate has been able
to deal with the arguments, issues, and opinions of this
impeachment trial. Continue to inspire the Senators with
civility as they work through answers to the questions raised
today.
Refresh and rejuvenate those who may be weary or burdened.
Dear God, preserve the unity of this Senate for its future
leadership of our beloved Nation. In Your holy Name. Amen.
The CHIEF JUSTICE. The Deputy Sergeant at Arms will make
the proclamation.
The Deputy Sergeant at Arms, Loretta Symms, made
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, there
are 11 hours 54 minutes remaining during which Senators may
submit questions in writing directed to either the managers, on
the part of the House of Representatives, or the counsel for
the President.
The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice.
And thank you, Chaplain, for your opening prayer. I know we
all listened and appreciated the admonitions that were given in
that prayer.
Order Of Procedure
I want to say, again, I appreciate the participation of all
the Senators yesterday. Fifty questions were asked, I think a
lot of good questions, and obviously good responses. We have a
considerable amount of time left for questions. But, again, it
is our intent to go today as long as the Senators feel that
they have a need for further questions. It is up to 16 hours;
it doesn't require 16 hours. So I think we should go forward
and try to ask the needed questions, and then get a sense of
where we are as we go through the day.
But at any rate, it would be our intent not to go later
than 4 p.m. We hope to take a 1-hour lunch break sometime
around 12 or 12:30, but it will depend on how the questions are
going. We will also take a break here in an hour, hour and a
half, something like that.
Following today's session, the Senate will reconvene on
Monday at 1 p.m. and resume consideration of the articles of
impeachment. All Members will be notified of the details of
Monday's schedule, and beyond that, once we have had an
opportunity for a consultation between Senator Daschle and
myself and we get a feel for exactly what Senate Resolution 16
provides in terms of activities on Monday and Tuesday. In a
continuing effort to make this as bipartisan and as fair as
possible, you will note yesterday while we alternated back and
forth, some of the questions were directed from this side to
the President's counsel and the reverse. I am sure that will
happen again some today. We began the first question yesterday
and you concluded; so today we would reverse that. Senator
Daschle will ask the first question and then we will go through
the process until we complete those questions, with us ending
with the last question sometime today.
With that, Mr. Chief Justice, I yield the floor.
The CHIEF JUSTICE. This question is directed to the House
managers from Senator Reid of Nevada.
Would you please tell us whether you provided notice to
counsel for the President, or to any official of the United
States Senate, of the managers' discussions with the Office of
Independent Counsel regarding an informal interview of Ms.
Lewinsky, and the intention of the Office of Independent
Counsel to file a motion in court to compel Ms. Lewinsky to
meet with the managers? If you provided no such notice to
counsel for the President or the Senate, please tell us why
not.
Mr. Manager BRYANT. Mr. Chief Justice and Senators,
distinguished colleagues, no, the answer to your question. I am
not aware of any such notice that was provided as described in
the question.
I would like to make some clarification on this in terms of
the witness, Monica Lewinsky--potential witness. As we have
been in an evolving discussion over the last few weeks in terms
of if we are allowed to call witnesses by the Senate, who those
witnesses might be, what our list might look like, obviously,
the name of Monica Lewinsky comes up as a potentially very
important witness to these proceedings.
As many of us in this Chamber have had experience in the
law, we very much would like to talk to some of these
witnesses. The core group that we have considered, however,
are, in essence, in the White House control; they are either
employed by the White House or close friends and associates of
the White House. I am sure the White House, with the attorneys,
would be very willing to cooperate with us in making those
people available.
However, Ms. Lewinsky presents a very unique situation in
that she is geographically some other place. I am not sure
where she is--Los Angeles, New York, maybe Washington. But she
has attorneys we have to deal with. It would be very critical,
as any attorney in this body knows, that before you actually
call a witness, and a witness of that importance to this
proceeding, that before you produce her for that testimony,
that you talk to her. It was intended to be a conversation to
discuss it with her.
I have personally not seen the immunity agreement that she
has, but we understand there is a cooperation proceeding and
that that agreement is between her, her attorneys, and the
independent counsel, the OIC--not Congress, not the managers,
not the Senate. So we have no duty, no legal standing, as I
understand it, to go in and enforce that agreement, were she
not to want to meet with us and cooperate pursuant to the terms
of those agreements, to the agreement.
We did contact the OIC to arrange that meeting, and once we
understood that the attorneys did not want to cooperate and
furnish their client to meet with us, we asked the OIC to
pursue, further, the effort to have Ms. Lewinsky come in and
meet with us on an informal basis as, again, anyone would do in
preparation for calling a witness at a trial.
Thank you.
The CHIEF JUSTICE. This is a question from Senators
Fitzgerald, Hatch, Mr. Smith of Oregon, and Senator Thurmond,
directed to the House managers.
How do you address the White House's argument that removal
is a disproportionate remedy for the alleged acts of perjury
and obstruction of justice and should there be any particular
concern about establishing a precedent that a President can
commit felonies while in office and remain President of the
United States?
Mr. Manager BUYER. I think the proportionality question
yesterday was very good in that there is a psychology to be
used in judicial decisions. I think there are different factors
that will influence that decisionmaking process and the ideals
that you, as a sitting judge and juror, will use to strive to
attain them. It is important, I think, also, to have
reasonableness and just solutions if you are going to
individualize the case, as some may hope to do.
I think as a society, if you take a step backward, we are
kind of caught in two diverse trends at the moment. You have
one trend whereby judges like to seek individualized solutions
to particularized cases; and the other trend is we will apply
the law to individualized cases.
So, let me give you two best examples of both of those.
With regard to the best example of individualized solutions to
a particular case would be our juvenile justice system. That is
where the court would come in and use a variety of means
because reformation is, in fact, the goal, and that is what we
do in the juvenile court system.
As a side note of that, I think in society, with regard
to--it could be an act of a firing, it could be an
administrative hearing for removal, it could even be a Governor
who had an employee who had an illicit affair and it was a
political appointee and that Governor decided, maybe he decided
applying the proportionality that he remove his own political
appointee for having an affair. So the individualization can
occur out there.
The other example I will comment on is the justice
according to law, and that other trend out there caught in our
society--a legislature is not only here in Washington but
across in our State jurisdictions; you have legislatures that
are beginning to take some of the decisionmaking processes away
from judges and they are saying, specifically, in Federal
sentencing guidelines, as an example, that if in fact a person
is convicted of a particular crime or possession of cocaine,
the legislature is now telling these judges exactly: This is,
in fact, what your sentence will be.
So, we are kind of caught, I want you to know, as you are
sitting as judges and jurors, in this diverse trend that is
occurring in our society. I know as you listen to lectures even
from the Supreme Court Justices, they are well aware of these
trends, and so you are sitting and you have to come in your own
conscience on how best to make that particular decision. I will
note, though, that we have stressed the latter. We have
stressed that the rule of law and its importance to our society
not only to serve the public and social interests, but you are
the guardian. When, in fact, there are crimes against the
State, who is there to serve the public interest? Especially
if, in fact, it is the President, the Vice President, a
judicial officer, or other civil officers. Here where you have
the President of the United States who has been accused of
perjury and obstruction of justice, which are crimes against
the State, and as Blackstone said, ``are side by side with
bribery,'' who is the guardian, then, of the public interest?
So in the question of proportionality, it is you; it is you.
So when Mr. Craig began by arguing that this trial is not
about vindicating the rule of law, that only criminal courts
are charged with that duty, I would respectfully submit that
the President's counsel is confusing the punishment of a
particular criminal case or controversy in a court with your
duty as Congress to ensure that future officers entrusted with
power granted by the people may not, by their offices,
eviscerate the proper administration of justice which is a
cornerstone of our Republic.
I now yield to Mr. Graham.
Mr. Manager GRAHAM. I know I have a minute. Great minds can
differ on this one: Can you have a high crime, and for the good
of the nation removal is not appropriate? I was asked that
yesterday, and I kind of wanted to make a case about why I
think this is not true. This is a great question.
The problem we have here is that you run into the judge
cases. When you find that a judge perjured himself, you remove
the judge. The President is different than the judge; I will
certainly concede that. But we don't want, I think, in the use
of proportionality, to create a standard that doesn't make any
sense, that confuses people. The law loves repentance. Baptists
love repentance. I am a Baptist. In my church, everybody gets
saved about every other week. The idea that if you will come
forward and admit you are wrong, you will get a different
result, is loved in the law.
Another thing to consider about proportionality is the
impact on society. I think you should consider that. I think
very much you should consider, even if this is a high crime,
the impact on our society, if you decided to make the ultimate
punishment. The death penalty of a political crime is removal
from office. I started that train of thought 3 months ago.
Impeachment is equivalent to the political death penalty. Every
felony doesn't allow you to have a death penalty. What I hope
you will be able to do, as a wise body, is not leave this
confusion behind--whether or not it is a crime.
Ladies and gentlemen of the Senate, it can be a high crime,
and you then have to decide the impact on society. But if you
leave us confused about whether or not this is a crime, the
impact on society is far greater than if you make the decision
that it is a crime, but proportionally it is not what the death
penalty would call for. It would not be a political death
penalty case. Thank you very much.
The CHIEF JUSTICE. This question is from Senator Leahy to
the House managers:
Did any of the managers consult with any Member of the
Senate before seeking aid from Kenneth Starr to speak with Ms.
Lewinsky? Did you discuss whether this violated the Senate's
100-0 vote on trial procedure?
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice. The
question is a valid question to ask. We did not consult with
any Senators about this. We don't think that what we wanted to
do, to talk to Ms. Lewinsky, has anything to do with the rule
you passed. We don't want to violate those rules and we don't
think we have.
As anybody who knows, if you have a witness that you are
going to produce, you have a right to prepare that witness. It
is as plain and simple as that.
I have practiced a lot of trial law before I came to
Congress, and a number of you have. If you are going to have a
deposition given, it is going to be your witness. You are going
to go down and try to talk to that witness and prepare that
witness. You have a right and obligation to do that. It has
nothing to do with the formal proceeding of taking the
deposition, which is covered by the rules that you have passed,
as to how and when depositions will be taken, and it has
nothing to do with the issue of her testimony actually here,
where the opposing counsel would have a right to be present. It
has everything to do with the right of anyone to prepare their
witness, to get to know their witness, to shake hands, say
hello, to put a face on that. It is normal practice to do this.
We see in no way how that abrogates this rule, or in any
way violates what you have set forth. As a matter of fact, we
think we would have been incompetent and derelict as presenters
of the witnesses, if we get a chance to present them, if we
couldn't talk to her. We tried to do this some time ago. We
suggested to her attorneys that it would be appropriate to
quietly have this discussion, to meet her, as you normally
would. I think they were apprehensive. They wanted a court
order, I guess, to force this to occur, and that is why we
eventually have gone to do that.
Thank you.
The CHIEF JUSTICE. This question is from Senators Lott and
Thurmond to the House managers:
Please give specific examples of conflicting testimony or
an incomplete record where the calling of witnesses would prove
beneficial to the Senate.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. Good
morning, everyone. I want to echo what my colleagues have
said--that we are trying to be prepared. We are trying to move
through this process expeditiously. But we do believe that we
need to call witnesses; and secondly, that we should be
prepared, without any delay, to proceed forward in the event we
are granted that opportunity.
One of the reasons that the calling of witnesses is
important is because there exist conflicts in the testimony.
The White House counselors, the President of the United States,
has denied each and every allegation under the two articles
that have been submitted to this body. I focused on the
obstruction of justice, and each of the seven elements of the
obstruction of justice has been denied by the President. This
puts it all in issue.
For example, let's start with the issue of lying to the
aides. The President said he was truthful with his aides, Mr.
Podesta and Sidney Blumenthal. Yet, if you look at the
testimony of John Podesta, where he says the President came in
and denied having sex of any kind with Ms. Lewinsky and goes
into the details of that, that is in direct conflict with the
testimony of the President of the United States. The same thing
is true of the testimony of Mr. Blumenthal versus the testimony
of the President of the United States.
Another conflict in the testimony is between the President
and Ms. Lewinsky--in a number of different areas. First of all,
in regard to the gifts, the President said, ``And I told her
that if they asked for gifts, she had to give them.'' That is
the President's testimony. Yet, Ms. Lewinsky says that in that
conversation the President said, when asked about the gifts,
``Give them to Betty.'' Then he says, ``I don't know,'' or
``Let me think about it.'' Again, that is a direct conflict
between Monica Lewinsky and the President.
In regard to Monica Lewinsky, he was coaching her testimony
or suggesting to her that ``Maybe you can sign an affidavit,''
or ``You can always say you were coming to see Betty, or that
you were bringing me letters.'' This is the testimony of Monica
Lewinsky. What does the President say regarding that? He said
that he never talked to her about a cover story in a legal
context. In other words, it is a denial of obstruction of
witness tampering, in contrast to the testimony of Monica
Lewinsky. Obviously, there is a conflict in the details of the
relationship.
There is a conflict between the testimony of Monica
Lewinsky and Vernon Jordan in three different areas. Ms.
Lewinsky said she shared with Mr. Jordan some details of the
relationship. Mr. Jordan says that was not accurate. Ms.
Lewinsky says in a particular meeting that Mr. Jordan--where
they discussed about notes she had been keeping, Mr. Jordan
said, ``Go home and make sure they're not there.'' But Mr.
Jordan denies that.
In another area, on the affidavit, Ms. Lewinsky says that
she brought to Mr. Jordan the affidavit, and he assisted in
making some corrections. Mr. Jordan does not recall that. So
there are conflicts between Ms. Lewinsky and Mr. Jordan.
There are conflicts between Ms. Currie and the President in
regard to the coaching incident. Ms. Currie said the statements
were made and taken in the sense that ``the President wished me
to agree with the statement.'' The President says, ``I was
trying to get as much information as quickly as I could.''
Obviously, Betty Currie testified before the grand jury before
the President did, and there were never any follow-up
questions. I would want to ask her: What did you say in
response? Did you provide any information that the President
was soliciting at that particular moment, according to the
defense he has asserted? So there is conflict there.
There is a conflict between the President and a witness
that we would offer from the deposition. The President denies
that he focused on what Attorney Bennett was stating in
reference to the false affidavit. I believe that we can offer a
witness--it could be in the form of an affidavit or
deposition--that would testify that he was focusing, paying
attention.
So there is clear conflict in the record that can only be
established through the presenting of additional questions or
additional witnesses.
The need for witnesses is so basic and fundamental to our
truth-seeking system of justice in this country that words fail
me in making the case that we should call witnesses and then
you should permit it in this proceeding.
We are sympathetic totally with the timeframe and the time
constraint of the U.S. Senate, and for that reason we will
prepare our witness list, we will accommodate a quick session.
The White House counselor said this is going to drag on for
months. If it drags on for months, it is because they want it
to drag on for months. We will do all that we can to end this
in a timely fashion, and the American people and the U.S.
Senate need to understand that.
Why are the White House counselors so concerned about
witnesses? Many of these witnesses are friendly to them. We are
in a truth-seeking endeavor, and I would respectfully submit
that the calling of witnesses would help resolve the conflicts
that I have recited.
The CHIEF JUSTICE. This question is from Senator Dodd to
the counsel for the President:
Do you believe that a fundamental question of fairness and
due process has been raised by the failure of the House
managers to notify you of the proposed Lewinsky interview or by
your exclusion from that interview? And do you wish also to
respond to Mr. Hutchinson's comments?
Mr. Counsel RUFF. If I may, Mr. Chief Justice, I will use
most of my time on the first part of that question and try to
perhaps weave in a few comments on the second part.
I am not going to seek here this morning to vindicate the
interests of this body; that is for others. But I do think it
useful to speak for a bit about the interests of the accused,
the President of the United States.
It is odd as I think we listen to the managers explain what
they were seeking to do to put that in the context of what we
know was actually happening here. It was suggested that they
wanted to just have a conversation like any lawyer getting
ready for a trial would want to have a conversation with a
witness before he or she put the witness into a deposition or
on trial--that it was sort of normal for a trial lawyer to do
this.
I think one of the managers suggested they just wanted to
say ``hello'' to put a face on it. And they even suggested that
counsel for Ms. Lewinsky wanted a court order to force their
client to testify. Well, as we will all see once the record is
made available to everyone, that last point is sheer nonsense.
But I suggest that earlier suggestions that just a friendly
little chat was all they were looking for is belied by the
notion of what we have here is the managers using their
``institutional role'' to get the independent counsel to join
with them and use the authority that he has under the immunity
agreement to threaten Ms. Lewinsky with jail, to threaten her
with violation of her immunity agreement, and opening up the
prospect of prosecution if they do not meet in a friendly
little conversation, just say hello, just like to meet you,
gathering with the managers.
Can you imagine what that little conversation is going to
look like, held in the independent counsel's office, with the
people there who have the capacity to put Ms. Lewinsky in jail,
while there is this friendly little conversation, just say
``hello,'' normal everyday discussion between the trial lawyer
and the witness he would like to get to know?
From the perspective of my client for the moment, putting
aside the rules which you all agreed on as to how we ought to
proceed, can we really say that is just normal, just OK, to
have one side using the might and majesty of the independent
counsel's office, threatening a witness with violation of an
immunity agreement if she doesn't agree to fly across the
country and meet for this friendly little chat? I think not.
I don't know whether I have a minute or two left. But on
the issue of conflicts, this is, of course, something that has
been the subject of much discourse over the last few days. Let
me just take a couple of examples put to you by Manager
Hutchinson.
On the issue of the statements made by the President, Mr.
Podesta, and Mr. Blumenthal, there is no conflict in the
testimony here. The President indeed said that he was trying to
keep his aides from becoming witnesses. He even said that he
didn't even remember his conversation with Mr. Podesta but he
took as true--this is what he said to the grand jury--he
accepted as true that Mr. Blumenthal said this is what that
conversation sounded like. Mr. Podesta said that is what the
conversation was. There was no conflict. The President indeed
adopted in the grand jury what those people would say. And of
course he didn't put them into the grand jury in order to
repeat something or to mislead the grand jury as to their
knowledge of what they told him. They testified truthfully in
the grand jury when they recited their conversations with the
President.
But I want to move just a second to something you have
never heard before in the entire days that we have been sitting
here. We heard little hints about how Vernon Jordan might be a
liar because of what he said about December 11. All of a sudden
just 5 minutes ago, this body heard for the first time he not
only may be a liar about the job search, he may be a liar about
destroying evidence. Words fail me.
The CHIEF JUSTICE. This is a question from Senator Abraham
to the President's counsel:
Is it your position that Ms. Lewinsky was lying in her
grand jury testimony, her grand jury deposition, and her FBI
interviews when she said that the President engaged in conduct
with her that constituted ``sexual relations'' even under his
narrow interpretation of the term in the Jones deposition? Is
it your position that she was also lying when she gave
essentially the same account contemporaneously with the
occurrence of the events to her friends and counselors?
Mr. Counsel CRAIG. Senator, our position is not that she is
lying. Our position is that there are two different versions of
what happened, and there is a discrepancy.
In my presentation to the Senate, I acknowledged that there
was a disparity between what the President had recounted and
what Ms. Lewinsky said happened when it came to recalling and
reporting these specific rather graphic and intimate details
concerning their activities. I pointed out that, with respect
to other essential elements of the relationship, there was no
disagreement that they acknowledge that there was a
relationship, that they tried to conceal it. But I also
suggested--and I suggest to you today--that not every
disagreement, not every discrepancy, is the foodstuff or the
subject of a perjury charge.
I also made the observation that perhaps this kind of
conflict of testimony as to who touched who, when, where, and
why, was not the kind of conflict that this institution would
want to resolve through testimony on the floor. If you have any
doubts about that point, I would suggest you read Ms.
Lewinsky's August 20 testimony before the grand jury which is
very complete and entirely and vigorously dedicated to
eliciting every single gritty detail of what went on between
them. I said also that I thought that this disagreement, this
disparity, was of questionable materiality. Let me explain why.
On January 29, Judge Wright ruled that Ms. Lewinsky's
testimony about her relationship with President Clinton was
unnecessary and maybe even inadmissible; that she had had no
information relating to the core issues of the case. She made
that ruling after all the allegations about that relationship
had been made public. And the judge knew what had been reported
in the newspapers and what was generally understood about it at
that point. She had been there when the President testified
about this. And she concluded that Ms. Lewinsky's testimony was
not required, at least for the Paula Jones case. In truth, Ms.
Lewinsky was an ancillary or peripheral witness in the Paula
Jones case. She had absolutely no firsthand knowledge about
what happened in the Excelsior Hotel when Ms. Jones claimed
that then-Governor Clinton made an unwelcome sexual overture to
her. Ms. Lewinsky had nothing to add or subtract, no ability to
testify about that issue.
So on the issue of the materiality to the Jones case as to
the truth of what actually happened between them, it is clear
it is of questionable, if any, materiality whatsoever. She was
a peripheral witness on issues not having to do with the core
issues of the case, and the case had no legal merit.
Please recall that the judge concluded that the case had no
legal or evidentiary merit. Please also remember that the Jones
lawyers, when they were asking these questions of President
Clinton, presumably knew the answers to these questions about
the relationship because they had been fully briefed the night
before.
Now, as to the question of the materiality of this
testimony and this issue of who touched whom, when, where and
why, to the grand jury, let me just say this: The House
managers claim that one or the other must be lying because both
cannot be correct. They argue that if you believe Monica
Lewinsky on this issue, you must disbelieve Bill Clinton, and
if you disbelieve Bill Clinton, you must conclude that he
knowingly perjured himself when he denied under oath having
this kind of contact with Ms. Lewinsky.
Now, this direct issue was addressed by the panel of expert
prosecutors that we brought to testify before the Judiciary
Committee, and they all agreed that this kind of issue would
never be the subject of a perjury prosecution. I would urge you
to go back and look at some of the testimony that they gave to
the Judiciary Committee. They talked about the oath-on-oath
issue, they talked about what is independent corroborative
evidence and what is not, and they concluded that no
reasonable, though responsible, prosecutor would bring this
kind of case based on that kind of an issue.
We are not arguing with the managers about the law. We are
not arguing with the managers about the disparity. We are
talking about prosecutorial practices, what in reality would be
a criminal prosecution, and I submit to you that no reasonable,
no responsible prosecutor would bring this kind of a case based
on that kind of evidence.
Thank you.
The CHIEF JUSTICE. This is a question from Senator Daschle
addressed to counsel for the President:
Do you believe that it is a requirement of due process and
fairness that you be allowed to participate in the Lewinsky
witness debriefing sought by the managers, and do you believe
that the House would have asked for the same right if the White
House had attempted to interview Ms. Lewinsky?
Mr. Counsel RUFF. Mr. Chief Justice, that question raises
an interesting mix of issues, because I think in one respect
the House managers are correct, that once the Senate determines
that it is prepared to go forward--I trust it will not--but if
it does determine that it is prepared to go forward in some way
with respect to the depositions of witnesses, at that point,
with the Senate having made that decision, it would be
appropriate for both sides to seek a voluntary, consensual,
typical opportunity to meet with any witness in a setting that
doesn't involve having the prosecutor with life and death
authority over that witness doing the debriefing or being
present while you talk to the witness.
Thus, although I will take the opportunity of offering to
sit in on any meeting between the managers and the independent
counsel and any witness, because I would certainly like to know
what the mood and the atmosphere of that process really sounded
like, the issue here, I think, is not so much whether it would
be nice to sit in on that meeting but whether there can be any
hope for due process, fairness and opportunity for both sides,
or certainly my side--I won't speak for the managers--to have
an opportunity for a reasonable, fair and open discussion
voluntarily with any witness who will talk with us, not--not to
be too rhetorical about this--with the looming presence of the
prosecutors sitting in the room with us.
As everyone who practices in this district knows, indeed,
it is a matter of law that a prosecutor may never interfere
with the access of any witness to defense counsel. I can't
think of much more interference than being required to sit in
the room with the prosecutor and with another prosecutor while
that kind of discussion goes on.
So the answer is, fairness, no. But if it is my only
opportunity to meet with Ms. Lewinsky, I will take it. But I
trust that as a matter of due process it will not be.
The CHIEF JUSTICE. This is a question from Senators DeWine,
Collins and Murkowski to the House managers:
With all of the conflicting testimony that exists on the
record between Monica Lewinsky and Betty Currie, for example,
how are we to resolve the questions of perjury and obstruction
of justice without observing the demeanor of witnesses?
Mr. Manager HUTCHINSON. I do not think there is any way to
resolve the conflicts in their testimony without calling
witnesses. You can read the transcripts and you can look at
those and you can try to determine whether there is any
corroborating evidence, how you can believe it, make some of
those kinds of evaluations. But particularly whoever you are
looking at, whether it is Monica Lewinsky or Betty Currie,
there are followup questions and there is the demeanor that
allows you to determine who is telling the truth and who you
believe.
And in contrast, Mr. Ruff tries to make the point that
somebody is lying here, and maybe somebody is lying, but a
jury--in this case the Senators--can look at this and say,
well, someone is not recalling the same way, someone is more
believable because their recollection is better, it is
corroborated, or you could conclude that someone is lying. It
doesn't always break down that simply, but you have to evaluate
that. And that is how you resolve it.
But let me just come back--I think what we see here today
is the White House counsel do not want to talk about the facts.
They do not want to talk about this case. They do not want to
talk about obstruction of justice; just like in the House, they
want to talk about the process. They want to talk about
everything that is going on except for the case of obstruction
of justice. And it probably will be the news story later on
today, the questions that they have raised about this.
But the fact is, it is very simple that they have access to
Betty Currie. Every time the President has talked to and tried
to coach Betty Currie, I don't think the President invited the
independent counsel in when this was under investigation, or
the Paula Jones lawyers. I don't think that happened. I don't
think that--at least from the news clips, when I saw Betty
Currie hugging the President, I don't think he invited the
House managers in. I didn't necessarily expect him to. But we
have to be prepared.
And I will just tell you right now, so nobody is surprised,
if we get to call Vernon Jordan, I don't want to delay the U.S.
Senate in order to be prepared for that, so I confess today
that I called up William Hundley, the lawyer for Vernon Jordan,
to visit with him.
Now, I hope that if you talk to any witnesses, that if you
feel it is fair, that you will give us a chance to join with
you in that. But, obviously, this is an adversary process we
are engaged in, and I think that we today in this question and
answer session that you all so graciously extended to us should
focus on the obstruction of justice charges because that is
what you have to determine--on the perjury allegation, because
that is what we have to determine today.
I thank the Chief Justice and the Senators.
The CHIEF JUSTICE. This question is from Senators Kohl and
Edwards to the House managers:
Throughout this trial both sides have spoken in
``absolutes''; that is, if the President engaged in this
conduct, prosecutors claim he must be convicted and removed
from office, while the President's lawyers argue that such
conduct does not in any way rise to an impeachable offense. It
strikes many of us as a closer call. So let me ask you this:
Even if the President engaged in the alleged conduct, can
reasonable people disagree with the conclusion that, as a
matter of law, he must be convicted and removed from office--
yes or no?
Mr. Manager GRAHAM. Absolutely. And this is a hard case in
a couple of areas, and I think it is an easy case in many
areas.
The Constitution reads that upon conviction, the person
shall be removed. You have to put it in the context of the
judge cases, because that is where it gets to be hard for this
body. Because of the precedents of the body when you apply the
same legal standard of high crimes and misdemeanors to the fact
that a judge who was convicted of perjury was removed by the
body, and you conclude in your mind that the President
committed perjury, you have a dynamic you have to work through.
Mr. Bumpers says there is perjury, then there is perjury. I
would suggest to you that the allegations of perjury and
obstruction of justice in this case are not trivial. It is not
about a speeding ticket or a trivial matter. It is about the
activity of the President when he was defendant in a lawsuit, a
sexual harassment lawsuit, when he was told by the Supreme
Court you have to play and you have to play fairly.
If you determine that he committed the crime of perjury and
you determine that he committed the crime of obstruction of
justice, based on the precedents of the Senate I think you
would have a hard time saying under the situation of this case
that that is not a high crime. But I would be the first to
admit that the Constitution is silent on this question about
whether or not every high crime has to result in removal.
If I was sitting where you are, 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. If you find this
President guilty in your mind, from the facts, that he is a
perjurer and that he obstructed justice, you have to somehow
reconcile continued service in light of that event.
I think it is important for this body to not have a
disposition plan that doesn't take in consideration the good of
this Nation. I have argued to you that when you found that a
judge was a perjurer, you couldn't in good conscience send him
back in the courtroom because everybody that came in that
courtroom thereafter would have a real serious doubt.
I will argue to you that when you find this President
guilty of perjury, if you do, that he has violated his oath and
that by a consequence of that, some public trust has been lost.
And I would show to you the body of evidence from this
question, ``Do you trust William Jefferson Clinton?''--the
American people will tell you--three out of four say no. But
the American people will also tell you that I understand what
happened here and some want him removed and some don't. And you
have to consider what is best for this Nation.
I will yield to Mr. Buyer in a second, but the point that I
am trying to make, not as articulately as I can, is that I know
how hard that decision is. It has also been hard for me.
It has never been hard to find out whether Bill Clinton
committed perjury or whether he obstructed justice. That
``ain't'' a hard one for me. But when you take the good of this
Nation, the upside and the downside, reasonable people can
disagree on what we should do.
Mr. Manager BUYER. I would just like to remind all of you
that the impeachment process is intended to cleanse the
executive or the judicial office when it is plagued with such a
cancer as perjury or obstruction of justice, which violates the
oath required to hold those high offices.
Now, what may be turning in the gut of some of you are the
precedents of the Senate, when in fact you have turned out of
office, you have exercised your judgments of proportionality
when these judges violated their oaths and had committed
perjury, you said they shall be removed from office.
Now there are some that are going, well, I am uneasy in
this case with the President. That is what may create a little
problem here. I would suggest to you that you actually have
findings of fact; that the Senate has findings of fact that the
President, in fact--he lied or he did not lie or he committed
an obstruction; that you actually have findings of fact. And
then you can move beyond to the questions of application of the
law.
But when the Senate has performed such a cleansing and
removed Judges Nixon, Claiborne and Hastings, all three of them
impeached for perjury in some form--and in Judge Hastings' case
even though he had been acquitted of the criminal case--the
Congress, in particular the Senate, you have a duty to preserve
the integrity of public office, and that is what impeachment
was precisely designed to do.
The CHIEF JUSTICE. This is a question from Senators
Voinovich, Jeffords and Chafee to the House managers:
In her interviews with the Office of the Independent
Counsel, Ms. Lewinsky stated that on January 5, 1998, the
President told her not to worry about the affidavit because he
had seen 15 others. Did the President mean that he had seen
previous drafts of Ms. Lewinsky's affidavit, or did the
President mean that he had seen drafts of other affidavits that
were in some way connected to the Paula Jones matter?
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice. You can
take that either way. But I believe in the context--and I
presented this to you the other day--in which the President
uttered those words, that the most logical conclusion is that
he had seen 15 other drafts of hers. If you remember, she was
discussing with him the issue of whether he wanted to see this
particular draft of her affidavit. And at that particular
moment he said, ``No, I don't want to. I have seen 15 others.''
Technically speaking, he could have seen 15 other
affidavits in his life somewhere back in Arkansas, who knows?
But it strikes me that the logical conclusion, the commonsense
conclusion in the context of everything else that you see this
President was intent on and had in his mind, and the interest
that he had already shown from all the conversations that he
had had with Vernon Jordan and others to make sure that this
affidavit was on track, and knowing that he was going to
testify in a few days himself in the Jones case, and rely on it
and in fact did go in and tell the same cover stories that were
in this affidavit to the court, untruthfully, that the
probabilities are pretty good, that common sense says that he
was saying he had seen 15 other drafts of this version of this
affidavit. But that is for you to decide. That is a judgment
call for the triers of fact. Thank you.
The CHIEF JUSTICE. This is a question from Senator Leahy to
counsel for the President:
Could you reply to the statement just made by Manager
McCollum?
Mr. Counsel KENDALL. Mr. Chief Justice, on Thursday
afternoon I went over, in perhaps tedious detail, the facts
relating to the affidavits. I pointed out that there was no way
in which--there was no evidence that the President saw any
affidavit draft. Mr. Manager McCollum just now, I think,
admitted that he has only a speculation. He doesn't have any
record evidence. The President denied seeing any affidavit
draft. I pointed out in the managers' chart 7 that their theory
about when Ms. Lewinsky could have gotten an affidavit was
simply wrong because their theory was she got it on January 5.
This is a single affidavit draft. The evidence plainly shows
that she could not have gotten it until January 6. There is
simply nothing in the record--and the independent counsel
interviewed Ms. Lewinsky extensively, both in interviews and
before the grand jury--and there is simply no evidence
whatsoever that the President saw any drafts or, indeed, that
there were 15 drafts.
Let me say a word about whether or not we are addressing
the facts. I am not going to frighten you. I am not going to go
back through the obstruction of justice evidence. But I think
if you will remember the presentation--first by Mr. Craig who
addressed in detail the evidence with regard to perjury, then
if you will recall what Ms. Mills said addressing two of the
seven allegations of obstruction of justice, and with what I
said to you on Thursday afternoon for almost 3 hours--and I
thank you for your uncommon patience; you were attentive all
the way through that exercise--you know that we have addressed
the facts. What we had yesterday, what Mr. Ruff has already
addressed, is a, again, I will use the word ``remarkable''
occurrence involving the independent counsel.
We have addressed the facts, and there is simply nothing to
support in all this record, this heavy, long record, that the
President had any review of any affidavit or, indeed, that
there were more than one or two drafts of Ms. Lewinsky's
affidavit.
The CHIEF JUSTICE. This question is from Senators DeWine,
Santorum, and Fitzgerald to the President's counsel:
If we are to assume that the various allegations as to
obstruction of justice are in fact true, is it your contention
that if the President tampered with witnesses, encouraged the
hiding of evidence, and corruptly influenced the filing of a
false affidavit by a witness, that these acts do not rise to
the level of an impeachable offense?
Mr. Counsel RUFF. Mr. Chief Justice, this is something I
won't have an opportunity to say very often, but I believe that
Mr. Manager Graham has, in fact, stated for you the essential
of the role that this body must play. We will probably differ
as to what the right answer to the question is, but as to the
process and as to the question that must be asked, I think he
stated it well.
I believe that the facts do not support the conclusions
that are embodied in the question. But not only can reasonable
people differ on the facts, but reasonable people may differ on
the outcome. And if, indeed, reasonable people can differ,
doesn't that mean, by the very statement of that proposition,
that this body cannot meet its constitutional heavy mandate,
which is to determine whether or not, whatever conduct you
believe the President committed, as outlined by these managers
over the last many days--can you legitimately determine that he
ought to be removed from office.
And all I can do, I suppose, is to remind you, as I have
too frequently, I am sure, that if you try to put yourself in
the minds and the hearts of the men who created our system of
Government, they wanted to know only really one answer to one
question, as framed in many different ways, but the essence
remains the same: Is there a sufficient danger to the state--
danger to the state--to warrant what my colleagues across the
aisle here have called the political death penalty. And I think
the answer to that is no.
The CHIEF JUSTICE. This is a question from Senator
Wellstone to counsel for the President:
To what extent should the views of the American people be
taken into account in considering whether a President should be
removed from office?
Mr. Counsel RUFF. Mr. Chief Justice, I think that the
answer to that question is not the polls that you read in the
newspapers or that you see on your evening news, whatever those
numbers may be; that is only one clue as to what the American
people are thinking. And each of you knows the people in your
jurisdiction far better than any polltaker does and that
certainly I do.
But surely one way to test the ultimate question that I
just described in response to the last inquiry from the
Republican side of the House, is to ask yourself, on the basis
of experience over the last year, on the basis of your
experience in the political--and by that I mean political in
the very best constitutional sense of the term as used by
Alexander Hamilton--as to your sense of the political structure
of this country and what the people are saying to you and what
your sense of their needs is: Do they need the kind of
cleansing that Manager Buyer spoke about?
I think the answer to that, if you look within the body of
people you are most familiar with, must be no. This isn't to
say that it is a popularity contest, that we ought to go out
and have a referendum or another poll before you all decide on
this. But surely the sense of the people, the will of the
people, the belief of the people in this President's ability to
govern must educate each of you, not mandate a result, but
surely guide the result that you reach in this proceeding.
The CHIEF JUSTICE. This is a question from Senator Collins
to the House managers:
The President's counsel has made much of Ms. Lewinsky's
statement that no one ``promised'' her a job for her silence.
She did not testify, however, that no one promised her a job in
return for a false affidavit--or, for that matter, that no one
implied that she would get a job for her cooperation. Can you
think of any reason why we should not call Ms. Lewinsky to help
clarify such ambiguous testimony?
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. That
is an excellent question and really goes to the heart of some
of the disputes.
I think as you read the testimony of Ms. Lewinsky, as you
read some of the other areas of testimony, questions come to
your mind. You would like to follow up, you would like to ask
her a question, and that one comes out and flags you that that
is a question that would like to be asked: No one promised her
a job for her silence, and that is the testimony that she gave
in response to a question in the grand jury.
But I believe this is a case in which actions speak louder
than words. I think that actions and what took place and the
commonsense understanding of what is happening here demonstrate
the case that there was a false affidavit that was obtained and
that was in conjunction with the obtaining of a job for Monica
Lewinsky.
So I think that is a natural question, and I think that
also if you read, if you look at the testimony of Monica
Lewinsky, I think it is clear that the case is made that she
was encouraged to lie and she was also encouraged to sign a
false affidavit and she was also provided a job coincidentally
at the same time.
I would like to take the opportunity, if I might, Mr. Chief
Justice, in further answering a question that was raised
earlier; it was on the false affidavit. That is, I think,
related to the question as well.
During Mr. Kendall's presentation a few days ago, he made
this statement:
The idea that the telephone call [between Lewinsky and
Clinton on January 5] is about that affidavit is sheer,
unsupported speculation and, even worse, it is speculation
demolished by fact.
This is the statement that Mr. Kendall gave the other day
on this floor, as cited in the Congressional Record,
summarizing his presentation that the idea that Clinton and
Lewinsky talked about the affidavit ``is sheer, unsupported
speculation and . . . demolished by fact.''
Well, the record demonstrates that Monica Lewinsky's
testimony is that she had a conversation with the President on
the telephone in which she asked questions about the affidavit.
She was concerned about signing that affidavit. And according
to Ms. Lewinsky, the President said, ``Well, you could always
say the people in Legislative Affairs got it for you or helped
you get it.'' And that is in reference to a paragraph in the
particular affidavit.
Now, my question to Mr. Kendall is, Would you agree, Mr.
Kendall, that your assertion that there is no support for it in
the Record is that you are totally rejecting the testimony of
Monica Lewinsky as totally unbelievable? And once again you
have a conflict that is presented in the testimony, and there
is only one way to resolve it, and that is to hear from the key
witnesses.
The CHIEF JUSTICE. This is a question from Senator
Lautenberg to counsel for the President:
Could you reply to the question put by the manager?
Mr. Counsel KENDALL. Mr. Chief Justice, let me address the
first part of Mr. Manager Hutchinson's response; and that is,
whether the statement by Ms. Lewinsky that ``Nobody ever
promised me a job for my silence'' covered other possible
promises to her. And it is quite clear, when you read all the
interviews that were done of her by the independent counsel,
all the grand jury testimony, that she unequivocally testified
there were no promises made to her, there were no assistances
given to her, that were in any way conditioned upon her
testifying a certain way or giving a certain kind of affidavit.
And she is unequivocal about that.
Now, in the statement that she made that I quoted, she does
not say nobody ever did these other things, but she said that
in her previous testimony. She uses the offer of a job as
simply a proxy for anything that would connect the assistance
she would receive with testifying in a certain way. There is
simply no evidence anywhere in the record. And the independent
counsel covered that with her in detail. She felt compelled to
volunteer her statement at the end of the process because they
had left some innuendo in the record that she had been provided
assistance. But her testimony is unequivocal. I have quoted it.
Now, the only testimony in the record about linking the job
to some assistance in the Jones case comes from the Linda Tripp
audiotapes. And, again, Ms. Lewinsky could not be clearer in
her grand jury testimony what she told Linda Tripp was false.
There was no connection there whatsoever. Her proffer, which I
put up on the board, was quite unconditional. And this you have
in your materials. This is in her own handwriting: Neither the
President nor Mr. Jordan nor anyone on their behalf asked or
encouraged her to lie.
So with regard to the first part of Mr. Manager
Hutchinson's question, there is simply no evidence, again, that
any kind of assistance to Ms. Lewinsky was conditioned on her
performance in any way in the Jones case.
Now, with regard to the affidavit, I stand on what I said
before you on Thursday. And I want to be very clear about what
Mr. Hutchinson's presentation was in chart No. 7 that I was
responding to. And I think it is quite important to recall
yesterday that a question was addressed to the House managers
whether there were any statements contained in their exhibits
which contained misrepresentations or omissions that, in the
interest of fairness to justice, they would like to correct;
and Mr. Manager Hutchinson said, ``We are not aware of any
corrections that need to be made on any of our exhibits offered
to the Senate.''
I would simply rest on the presentation. I am not going to
take you through, again, the many errors in the charts. Those
were not refuted in any way. They rested on their charts. I
leave that to your judgment.
But with regard to chart 7, what Mr. Manager Hutchinson
told you almost a week ago was that chart 7 was a summary of
what happened on January 5: Ms. Lewinsky meets with her
attorney, Mr. Carter, for an hour; Carter drafts the affidavit
for Ms. Lewinsky; she calls the President; the President
returns Ms. Lewinsky's call; and then they had a discussion
about this draft affidavit.
The point of my demonstration through Mr. Carter's
testimony and through his billing records was in fact that the
affidavit had been drafted the next day. They could not have
had a discussion about the affidavit on that date. And I think
the record is quite clear on that.
The CHIEF JUSTICE. This is a question from Senator Lott to
the House managers:
Do you have any comment on the answer given by the
President's counsel with regard to the views of the American
people?
Mr. Manager HYDE. Mr. Chief Justice, distinguished
Senators, this is a fascinating question. Edmund Burke was
asked that once, and he said that a member of Parliament owes
the highest degree of fidelity to his constituents, but he
doesn't owe his conscience to anybody.
We have, or we have not, a representative democracy. We are
not delegates who are sent here to weigh our mail every day and
then to vote accordingly. Our work here is not an ongoing
plebiscite. We are elected to bring our judgment, our
experience, and our consciences with us here.
I have always believed--and I believe more firmly than
ever; and this experience confirms me in that belief--there are
issues of transcendent importance that you have to be willing
to lose your office over. I can think of several that I am
willing to lose my office over--abortion is one; national
defense is another; strengthening, not emasculating, the
concept of equal justice under the law. My life is devoted, as
a lawyer--I have been on the Judiciary Committee; this is my
25th year--and equal justice under the law is what moves me and
animates me and consumes me. And I am willing to lose my seat
any day in the week rather than sell out on those issues.
Despite all the polls and all the hostile editorials,
America is hungry for people who believe in something. You may
disagree with us, but we believe in something.
Recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we recess the proceedings for 15 minutes.
There being no objection, at 11:19 a.m., the Senate
recessed until 11:36 a.m.; whereupon, the Senate reassembled
when called to order by the Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice. We will go
approximately another hour, if questions are still available--
and I assume they will be--and then we will break for about an
hour for lunch.
The CHIEF JUSTICE. This is a question from Senator Biden to
the House managers:
If a Senator believes that the President may have lied to
the American people, his family and his aides, and that some of
his answers before the grand jury were misleading or half-
truths, but that he could not be convicted in a court of law
for either perjury or obstruction of justice, is it the opinion
of the House managers that his actions still justify removing
the President from office?
Mr. Manager BARR. Thank you, Mr. Chief Justice. I have
taken two public oaths in my career in the service of the
people of this great land. One was as a Member of Congress; the
other was as a U.S. attorney. As a U.S. attorney, it was my job
on behalf of the people of the United States to prosecute cases
against individuals and other entities that violated the
Criminal Code of the United States of America. That Criminal
Code, as you are well aware, includes the offenses of perjury
and obstruction of justice.
That Criminal Code does not include the offenses of lying
to one's family. That is not what brings us here today. What
brings us here today 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.
I can tell you, as a U.S. attorney serving under two
Presidents, that I would prosecute these cases, because I did
prosecute such cases. I prosecuted cases against people,
including members of the body from which we as managers come,
who appeared before grand juries and lied, who appeared before
grand juries and misled grand juries, people who obstructed
justice, people who tampered with witnesses in precisely the
same way that this President has committed perjury, tampered
with witnesses and obstructed justice.
We respectfully submit to the Senators of the United States
of America assembled here today that these are prosecutable
cases, that they are cases that have been prosecuted, and that
the question before this body, we respectfully submit, in the
House of Representatives' articles of impeachment, is not that
the President lied to his family. What is before this body, we
respectfully submit, as contained in the two articles of
impeachment passed by the House of Representatives, is that
this President violated his oath of office and committed the
offenses of perjury and obstruction of justice, which we firmly
believe on behalf of the people of the United States of America
provide a sufficient basis on which this body, exercising its
deliberative power and its legitimate jurisdiction, may find
that this President, as people in courts of law similarly but
not identically situated are indeed found guilty and removed
from positions of trust, as this President ought to be for
committing the perjury and obstruction of justice--not lying to
his family.
Thank you.
The CHIEF JUSTICE. This is a question from Senators Snowe,
Mack, Chafee, Burns, and Craig to the House managers:
Before Ms. Lewinsky was subpoenaed in the Jones case, the
President refused on five separate occasions--November 3,
November 10, November 12, November 17, and December 6--to
produce information about gifts from Lewinsky. The President's
counsel argued the President was unconcerned about these gifts.
If that is the case, why didn't he produce these gifts in
November and December?
Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators
for the question. This case needs to be looked at for the
mosaic that it is.
There is a reason why the President never produced gifts.
There is a reason why the President continued to give Ms.
Lewinsky gifts. It is because he believed that she would never
produce them. We know that from her testimony.
In my presentation to the Senate a week ago, I quoted from
the transcript where she said, ``Nobody ever asked me to lie.''
But then she also said there was never any doubt but that
``we'' would deny the relationship if asked.
We see that throughout the entire proceeding. We see that
before Monica Lewinsky's name appeared on the list--on December
5--on the witness list. And we especially see it after. In
fact, Monica Lewinsky went to the President and said, ``I've
been subpoenaed. They are asking for gifts. What should I do?
Maybe I should give them to Betty.'' And the President said,
``Let me think about that.'' And we all know by now that within
a few hours Betty Currie called Monica Lewinsky and came and
retrieved the gifts, not to give them to the Jones lawyers
pursuant to the subpoena, not to cooperate with the sexual
harassment lawsuit; she took the gifts and she put them under
her bed.
Members of this body, it begs common sense for any
interpretation of that conduct to be somehow cooperative with
the legal proceedings in the sexual harassment case. Every
piece of this puzzle, when put together, demonstrates a very
clear pattern of obstructing justice, not to cover up personal
affairs, not to cover up an indiscretion, but to destroy Paula
Jones' rights under the sexual harassment laws of this country
to have her day in court. That is the ultimate question that
this body is going to have to address.
Yes, reasonable minds can differ on this case as to whether
the President should be removed office. But reasonable minds
can only differ if those reasonable minds come to the
conclusion that enforcement of the sexual harassment laws in
this country are less important than the preservation of this
man in the office of the Presidency. And that is the ultimate
question that this body is going to have to answer. What is
more important--the survival of Bill Clinton's Presidency in
the face of perjury and obstruction of justice, or the
protection of the sexual harassment laws in this country?
And imagine, every victim in the workplace will be waiting
for your answer.
The CHIEF JUSTICE. This is from Senator Daschle to the
House managers:
Will you agree to arrange to have prepared a verbatim,
unedited transcript of any debriefing which may occur with Ms.
Lewinsky for immediate distribution to the Senate? And will you
agree also to provide for the inclusion of any such debriefing
of representatives of the Senate, one selected by the majority
and one by the minority?
Mr. Manager McCOLLUM. Mr. Chief Justice and Members of the
Senate, it is not our intent to be doing a deposition, a formal
presentation, a preparation for the Senate, if we talk to Ms.
Lewinsky. It is our intent to do what any good attorney would
do in preparing to go to trial, presuming--we don't know that
you are going to allow us to have witnesses--but presuming we
are going to be able to depose and have witnesses, and that is
to meet with the witness, talk with the witness, and prepare
the witness. And any good attorney who does that is going to
meet his or her witness in their own confidences, in their own
quiet respite. We discover things that way. We are not
prepared. No. The answer to your question is no, we are not
prepared to say we are going to give you our work product,
which is what that would be.
``Work product'' is a technical term of law which, for
anybody who is out in the public, is what lawyers do all the
time. And they work on their case, and they prepare what they
are going to do, and then they present it. That is the system
we have.
Somebody said--I think it was Mr. Hutchinson who said
earlier--this is an adversarial position. The White House
counsel will have their chance to talk to witnesses that they
are going to present; we will have our chance to talk to ours.
Then there is the opportunity for the depositions, which is
what comes next, which is the formal proceedings when we both
have a chance to talk with them. Then, of course, if you let us
call them as witnesses here, they will be here, and they will
get cross-examined, and examined, and all the questions you can
imagine will be asked. That is the traditional American system
of justice.
So, no, we would not give you our work product notes. We
have no idea what would be in them. We don't think that is
appropriate. We think that a lot is being made out of this. We
attempted to do this a couple of weeks ago. We would have liked
to have talked to her earlier. It has not worked, that we have
been permitted to, for reasons that we are not sure. But the
reality is, this is the normal process. We would talk to any
other witness despite however the White House counsel wants to
argue about it. They do the same thing.
I yield what time I have left to Mr. Graham.
Mr. Manager GRAHAM. I would like to echo the work product
analogy.
But let me just say this as directly as I know how to say
it--that if this body as a whole believes we are going to do
anything improper, then whatever rule you need to fashion to
make sure we don't, you do it, because nobody should ever doubt
whether a witness comes into this body in this case with
anything other than testimony that was truthful. If you want to
go down the road of the atmosphere that people were approached
and how they were treated about being witnesses, let's go down
that road together. Let's bring in people in this body and
let's see how they were approached when they were asked to
participate in this trial, what the atmosphere and the mood
was, when it comes to their time to be identified as witnesses.
So I would just say as strongly as I know how that if you
have any doubt about us and what we are up to, you fashion
rules so we do not create an unfairness in this body; but
please, when we ask for witnesses and we raise doubt about how
people may have been treated, that you give us the same
opportunity to explore the moods and atmosphere of those
witnesses.
The CHIEF JUSTICE. This question is to the House managers
from Senators Murkowski, Gregg, Grams, Thomas, Crapo, Thompson
and Hatch:
The President's counsel rely upon the President's
statements in many instances. Therefore, the President's
credibility is at issue. Is the President's credibility
affected by the fact that, until the DNA evidence surfaced, the
President denied any improper relationship with Ms. Lewinsky?
Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators.
First, I don't think it was a compliment to me from my
colleagues that as soon as the issue of DNA came up, they all
pointed to me and told me to come up and answer the question. I
will do my best.
Obviously, as the triers of fact, Members of this body
individually will have to make determinations respecting
credibility of the President as well as the other witnesses. It
is indisputable, however, that from January 1998, when he spoke
at the deposition, until August 17, when he made a quasi-
admission before the grand jury, there were intervening factors
that required him to change his position.
We saw from the moment the story first broke in the press
about Monica Lewinsky the President making denials in the most
emphatic of ways, and not only doing it repeatedly himself but
sending out his Cabinet and his aides and his friends to do it
on his behalf. That continued up until the eve of the
deposition. Was it because the President suddenly had a change
of heart? Was it because his conscience was suddenly bearing
down upon him? Or were there other reasons? Well, let's see.
Just before his deposition testimony, Monica Lewinsky
decided to cooperate with the Office of Independent Counsel.
Monica Lewinsky suddenly turned over a blue dress. And that is
fascinating because, as you know from the record and you have
heard from the presentations, the President was prepared to
take Monica Lewinsky and trash her in a very public way until
the dress was turned over to the FBI. Remember what he said to
Sidney Blumenthal. He called her a stalker. He said that she
was threatening him. But he no longer could make these
presentations publicly or privately once he knew there was
potential physical evidence.
So I think there are a number of factors Members of this
body can look at with respect to credibility just from the cold
record. But if that is not enough, if Members of this body are
not satisfied that they are able to resolve these issues of
credibility, then the way to handle this is to follow the
dictates of the Constitution and our Framers who understood the
value of trial and bringing witnesses forward, placing them
under oath and giving the triers of fact the opportunity to see
the witnesses, to hear their testimony, to gauge their
credibility.
That is what the purpose of a trial is for. And the House
managers entrust this body to make sure that at the end of the
day this is more than a proceeding; this is an arena where the
truth will be determined not just for our time but for history.
The CHIEF JUSTICE. This question is from Senator Murray to
counsel for the President:
Could you reply to the comments of Manager Rogan?
Mr. Counsel RUFF. The existence of DNA or any other
evidence or any other events before the President's grand jury
testimony had no bearing whatsoever on his determination which
he carried out on that day in the middle of August to answer
the grand jurors' questions truthfully. He did so. It may be
that the managers can speculate about, well, there must have
been some reason why in the middle of August, after some months
of denying to the Nation and his family any misconduct, he
changed his mind and told the truth. But there was one reason
why he did that. Because he went before the grand jury for the
United States District Court of the District of Columbia and
told the truth.
Now, it has been suggested by many of the managers over the
last day that the President was somehow anxious to--or
contemplated the prospect of, as they put it, trashing Ms.
Lewinsky. This issue was raised yesterday and has been raised
again by Mr. Manager Rogan. I think it is time to set that
record straight.
Mr. Manager Bryant yesterday, as he was discussing the Dick
Morris issue, purported to recite from the independent
counsel's referral and purported to describe a conversation
between the President and Mr. Morris in which, to quote from
Mr. Manager Bryant, ``According to Morris, the President warned
him''--that is, Mr. Morris, he warned the President--excuse me.
Let me start before that.
Later the next day, the President has a followup
conversation with Mr. Morris, in the evening, and says that
he--
That is, the President--
is considering holding a press conference to blast Monica
Lewinsky out of the water. But Mr. Morris urges caution. He
says, ``Be careful.''
And that he warned the President not to be too hard on her.
Well, 180 degrees off from that description, let me read
you what, in fact, the independent counsel's office referral
says, and I am sure it was just a slip of the read that you
heard yesterday.
The President had a followup conversation with Mr. Morris
during the evening of January 22nd, 1998--
This is page 127 of the independent counsel's referral--
when Mr. Morris was considering holding a press conference to
``blast Monica Lewinsky `out of the water.' '' The President
told Mr. Morris to ``be careful.'' According to Mr. Morris, the
President warned him not to ``be too hard on [Ms. Lewinsky]''.
. .
Close. Close. One hundred eighty degrees off. Beyond that,
let me be very clear about one proposition which has been a
subtheme running through some of the comments of the managers
over the last many days. The White House, the President, the
President's agents, the President's spokespersons, no one has
ever trashed, threatened, maligned or done anything else to
Monica Lewinsky--no one.
The CHIEF JUSTICE. This is a question from Senators
Hutchison of Texas, Snowe, Allard, Collins and Hatch to the
House managers:
The counsel for the President have said that the heart of
this case is private consensual sex. A tenet of sexual
harassment law, however, is that the implied power relationship
between a supervisor (in this case, the President), and a
subordinate (in this case an intern), is enough to constitute
sexual harassment.
This is well settled in military law and is developing
along this line in the civilian sector. In your view, how might
acquittal of this case affect laws regarding sexual harassment?
Mr. Manager ROGAN. Mr. Chief Justice, the law of sexual
harassment is a relatively new genre. If somebody wanted to
make a case before the Congress had stepped in and improved
upon the law, it essentially reduced women in the workplace,
for instance, who had been harassed into what has been referred
to as a ``he said-she said'' type of argument, and so the law
has improved upon that type of argument because the law
recognizes today that sometimes there can be evidence of a
pattern of conduct, and that conduct is relevant to prove how
somebody may have behaved.
Consider what would happen if victims of the workplace get
a message from the Congress of the United States that what the
President did with Paula Jones, or allegedly did with Paula
Jones, is of no constitutional significance here. It would send
a message to every woman in the workplace that if they have a
complaint against an employer who is attempting to use a
position of power and authority to pursue improper advancement,
the message would be that you might as well just keep quiet
about it because the person can lie in court and suffer no
recrimination. First, they will probably never be discovered,
because most of the time DNA evidence doesn't suddenly appear,
but even if DNA evidence does appear to corroborate the victim,
the message is that as long as he is appropriately apologetic
and the lie was, after all, only about sex, it is of no import
with respect to removing them from their job or having them
suffer any legal consequences. I think that would be a horrible
message.
The reason the law allows this pattern-of-conduct evidence
is because sexual harassers operate in a unique way. They get
their victims alone. They typically don't commit these crimes
under the glare of klieg lights or in front of television
cameras or where witnesses can testify. They get their victims
alone for one reason--because they know through intimidation
and fear one of two things will happen. Through intimidation or
fear, the victim will submit; or through intimidation or fear,
the victim will not submit but will keep their mouth shut about
it.
What is the message to these victims who do brave losing
their job, being destroyed publicly, having their reputations
destroyed? What is the message to them if, when they come
forward and they want to pursue their case, we take the legal
view that somebody can perjure himself, somebody can lie,
somebody can obstruct justice, somebody in the greatest
position of power in our country can take whatever steps are
necessary to destroy that woman's claim in a court of law where
she is entitled to pursue it if at the end of all of this we
say: Well, you know, he was embarrassed, he did lie but it was
only about sex? Lies in sexual harassment cases, Members of the
Senate, are always only about sex.
The question before this body is, what type of validity are
we going to give these laws and what sort of message are we
going to send to victims in the workplace? I pray that we can
put personal relationships aside with respect to how people
individually feel about this President personally and how they
feel about his administration and focus on what is the ultimate
conclusion legally and what is the precedent that would be set
if we turned a blind eye to this sort of conduct.
The CHIEF JUSTICE. This is a question from Senators Boxer,
Feinstein, Landrieu, Mikulski and Murray to counsel for the
President.
Has Ms. Lewinsky ever claimed the relationship was other
than consensual and was not Ms. Jones' case dismissed as having
no claim recognized by law?
Mr. Counsel RUFF. No. And yes. Indeed, as Mr. Manager Rogan
has told you, and others before him on the managers' side, our
sexual harassment laws and our civil rights laws are of
critical importance to all of us. My colleague, Ms. Mills,
spoke eloquently on that subject a couple of days ago.
But it is important to understand, I believe, with no sense
at all that we are in any way diminishing the importance of
those laws and of the rights of every American citizen to seek
justice under those laws, that we are talking about a case in
which the trial judge determined that on all the evidence that
had been gathered and all the claims that plaintiff had made
and all the discovery that had been taken, there was no case.
That is justice. That is the way the system works. The
plaintiff brings the claim, the process moves ahead, and a
judge ultimately makes the decision. And this didn't have
anything to do with what President Clinton said in his
deposition on January 17. What the judge ruled was, first, that
that evidence was irrelevant to her consideration; and then
ultimately, in April of last year, that there simply was no
case.
We accept the results of the justice system whether they go
against us or whether they go for us. In either event, it is
justice.
The CHIEF JUSTICE. This is a question from Senator Thompson
to the House managers:
Is there any reason to believe that there is any
relationship between the President telling Mr. Blumenthal that
Ms. Lewinsky was a stalker and expressing his frustration about
not being able to get his story out with the fact that shortly
thereafter negative stories about Ms. Lewinsky, including the
allegation that she was a stalker, began to appear in news
articles quoting sources at the White House?
Mr. Manager HUTCHINSON. Well, I appreciate that question.
And thank you, Mr. Chief Justice. Because I made a note of Mr.
Ruff's statement that no one--and I believe he specified the
President, his aides, or no one has ever trashed or spoken
ill--used some other words--of Monica Lewinsky. It really
caught me as striking, in light of the sworn grand jury
testimony of Sidney Blumenthal. And, of course, he is
testifying as to what the President told him. And, of course,
in that conversation the President told Sidney Blumenthal, as
described by Mr. Blumenthal, that: Monica Lewinsky came at me
and made a sexual demand on me. I rebuffed her. The President
said: I have gone down that road before, I have caused pain for
a lot of people. I am not going to do that again. She,
referring to Monica Lewinsky, threatened the President. This is
the President's statement. It goes on and describes it; she was
known as a stalker.
In my understanding that is trashing, that is speaking ill,
that is being very critical and doing everything you can to
basically destroy her reputation.
Now, why was he telling Sidney Blumenthal that? Was he
trying to use Sidney Blumenthal to get the message out to the
public and to the grand jury, who might hear this, that she is
not a believable person? That the whole idea is that she came
on to him, that threatened the President of the United States?
I think--I don't understand Mr. Ruff's representation to the
Senators that no one, including the President or aides, has
ever trashed Monica Lewinsky.
Now, I think it is important also, at that particular point
in time, the President knew that Sidney Blumenthal and John
Podesta would be a witness before the grand jury. That was his
testimony. That is what the President of the United States
admitted to. He said he knew that they were going to be
witnesses. And, clearly, that constitutes obstruction of
justice; when he knows that they are going to be a witness, he
gives them false information knowing they are going to repeat
it to the grand jury, and that is an element of one of the
pillars of obstruction.
I want to come back to some things that have been said
about the Jones case. First of all, it has been characterized
as a ``no win'' case--that Judge Susan Webber Wright issued
that order.
Well, if the truth had been known, what we know now about
the relationship, about the pattern of conduct, would that have
made a difference? And, of course, when those facts came out it
was right before a decision by the Eighth Circuit Court of
Appeals that might have reversed Judge Wright's order that the
President of the United States made a decision he could settle
this case for eight hundred and something thousand dollars.
What would have happened? Maybe Paula Jones would not have
had to have gone through that many years of litigation if the
truth had just come out.
But there was a pattern of obstruction of justice, of
lying, of coaching witnesses, of tampering with witnesses,
which ultimately led to a defeat of that case and the truth not
coming out. But when it came out, it made a difference; it made
a difference for that plaintiff in that civil rights case.
Senator Hutchison asked a question about whether the power
of the position makes the difference in sexual harassment
cases. Let me assure you, if there is any chief executive
officer of any company, whether it was consensual or not, with
an intern or a young person half of the officer's age and
whether it was--whatever they termed it at that point, whether
it was a subordinate employee--and that is the key language,
``subordinate employee,'' then, yes, Senator, it does make a
difference, and that is the crux of many cases that are brought
into court to protect women against sexual harassment in the
workplace. I think it is a linchpin of this act that this
Congress passed. So I think that when you look at the overall
picture, there is that pattern of obstruction of justice.
Senator Biden asked a question, Would any prosecutor bring
this case forward? Let me tell you, it would be easier--and I
say this with great deference to the Senate--but it would be
easier to win a conviction beyond any reasonable doubt, and I
could win a conviction beyond a reasonable doubt in a court in
this country on obstruction of justice because I know that
common sense permeates a jury panel whenever they hear this
case and the perjury--they are not going to buy, they are not
going to accept what ``is'' is. They understand what these
words mean, and common sense will apply. And I know that common
sense exists in the Senate of the United States.
But let me assure you that this is a case that I would
bring forth without any hesitation, and I believe the proof
would demonstrate a conviction beyond a reasonable doubt.
The CHIEF JUSTICE. This question is from Senator Kennedy to
the counsel for the President:
Could you reply to Mr. Hutchinson's allegations?
Mr. Counsel RUFF. I think it important, because the
question put to the House managers, Mr. Chief Justice, was
whether there was some effort or some relationship between Ms.
Lewinsky and a series of articles or stories that supposedly
appeared in the early days following the revelation of this
investigation--I think it is important to recognize what the
real facts are here.
This was the point made at the very end of my testimony
before the House Judiciary Committee on December 9. One of the
members of that committee spoke at great length and quite
heatedly about what he believed to have been a plan to
disseminate unfavorable information in the press, and he
submitted for the record a number of newspaper articles.
The articles that he submitted, which were largely spun off
of one Associated Press story, did not contain two--at least
two--statements that made it very clear that the accusation
that there was some effort on the part of the White House to
disseminate disparaging information were simply false.
In an Associated Press story of January 31, which was used
by a member of the House Judiciary Committee as one of his
examples of how the White House was supposedly coordinating
such an attack, there was omitted the following portion. This
is a statement by Ann Lewis, who is the White House
communications director:
To anyone who was saying such things about Ms. Lewinsky,
either it reflected a lack of coordination or thought or adult
judgment. We are not going down that road. It is not the issue.
A discussion of other people is not appropriate.
That is on January 31. Retrospectively, when Ms. Lewinsky
had already begun to cooperate with the independent counsel,
the Los Angeles Times wrote the following:
From the beginning, the White House has been careful about
what it has said of Ms. Lewinsky. The week the Lewinsky story
broke in January, Clinton's press secretary, Mike McCurry,
signaled the tone the White House would take by deflecting
questions about whether the 24-year-old intern was less than
stable.
Mr. McCurry:
``I can't imagine anyone in a responsible position at the
White House would be making such an assertion. I've heard some
expressions of sympathy for what clearly someone who is a young
person would be going through at a moment like this.'' And
McCurry quickly signaled that the marching orders had not
changed once Lewinsky made a deal with the independent counsel,
Kenneth Starr, for immunity from prosecution.
I think it is important that the record be clear that the
stories about which the managers were asked in their last
question simply never reflected any plan, coordinated or
uncoordinated, to do anything other than treat Ms. Lewinsky
with respect.
The CHIEF JUSTICE. This question doesn't show which
Senators are submitting it.
Mr. LOTT. Senator Hatch.
The CHIEF JUSTICE. This is a question from Senator Hatch:
Isn't it true that Chief Federal District Judge Johnson
ruled today--in an order that she authorized to be released to
the public--that Ms. Lewinsky's immunity agreement, which
requires her ``to make herself available for any interviews
upon reasonable requests,'' compels her to submit to an
interview with the House? What light does this shed on the
earlier debate on this matter?
I am sorry, it is addressed to the House managers.
Mr. Manager BRYANT. Mr. Chief Justice, I think certainly
having come from an experience of practicing law and learned so
much over the years and trying cases and putting together cases
in an ethical and appropriate fashion, to come into a political
proceeding, and as we have dealt with this, and I think as the
lawyers to my left had to deal with the same type of situation,
in a political realm, not just in the Senate, but months and
weeks before we came in to here, is very difficult.
What we have seen this morning is a completely innocent
standard practice of sitting down with a potential witness
before you have to list your witnesses Monday and deciding
whether or not you want to use her.
They have talked about lawyers committing malpractice by
not taking depositions. I submit it would be close to that if
you don't talk to a witness before you call that witness.
Certainly, while the OIC has had communication with her over
some time, we have not. We have not had contact with any of
these witnesses.
I alluded earlier to the White House and the other
witnesses that work for the White House that we might be
looking at calling. I must presume by this conversation in this
area of questioning that they have not had any contact about
this case with Ms. Currie and Mr. Podesta and Mr. Blumenthal,
and even a friend of the White House, Mr. Vernon Jordan. We are
not asking we be privy to every time they say hello in the
hallway to these people or may sit down and talk with them. We
understand the realities of life. We simply just wanted that
crazy idea that maybe we ought to talk to a witness before we
decide whether or not we want to list that witness.
I think to answer that question--and I will sit down--Judge
Johnson clearly vindicated this right to do that, to accomplish
that through the immunity agreement. I apologize if we have
offended the Senators. We certainly didn't intend to do that.
We certainly didn't intend to break any rules about this, and
we don't think we did.
Certainly, if we are going to go down that road, and if you
see it is appropriate that we have a rule you can agree on, we
would be happy to abide by that, but we would simply like equal
treatment with the other witnesses, also with the White House
and their attorneys. Thank you.
The CHIEF JUSTICE. This question is to the House managers
from Senators Collins and Feingold:
On the basis of the President's and Betty Currie's
testimony concerning their conversation on Sunday, January 18,
1998, have each of the elements of obstruction of justice under
18 U.S.C., section 1503, or witness tampering under 18 U.S.C.,
section 1512, been met? We are particularly interested in your
analysis of whether the Senate can infer that President Clinton
intended to corruptly influence or persuade Ms. Currie to
testify falsely and the weight to be given Ms. Currie's
testimony in that regard.
Mr. Manager HUTCHINSON. The answer is that, under 18 U.S.C.
section 1503, there is a case for witness tampering in the
conversation between President Clinton and Betty Currie.
I want to refer you to a case, United States v. Shannon,
which is an Eighth Circuit Court of Appeals case decided
October 12, 1987. And for you lawyers here, it has been
Shepardized. It is good law, and it really puts this into
perspective.
In the case, the defendant contended that the evidence did
not support a conviction under 18 U.S.C. section 1503 because
the Government did not prove that the witness in this case,
Gray, was ever a witness before the grand jury or that the
defendant knew that that person was going to be a witness
before the grand jury. And this is what the court said:
This argument is . . . without merit. A conviction under
section 1503 for attempting to influence a witness 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.
Now, this gentleman, this defendant, Mr. Shannon, went to
jail. He made the defense that, ``Well, I didn't--you know,
that person was never called as a witness, it was never an
official proceeding,'' and it didn't fly. He was convicted. It
was affirmed by the court and, presumably, he went to jail.
Now, that is the law of the land in the criminal courts of our
country. And so there would be a conviction under 18 U.S.C.
section 1503.
In this case you have much more because, as I pointed out
yesterday in reference to Betty Currie, Betty Currie was
clearly a witness. They left that deposition knowing she would
be a witness. The Jones attorneys went back and immediately
worked on issuing a subpoena for her because they had to have
her because the President asserted her name continually through
that. The President knew she was going to be a witness. He came
back and engaged in one conversation where he coached her
testimony. He tampered with her testimony. It wasn't enough, so
2 days later he brought her back in again and did the exact
same thing. The legal question is, As a prospective witness, is
she covered under the obstruction of justice statute? The
answer is, yes, because other people go to jail for exactly the
same thing.
But I think we need to take a step back a moment. This U.S.
Senate is not bound by the strictures of the U.S. Criminal
Code. If I came in here today and said, ``Well, under the
criminal procedures of the land, I'm entitled to bring
witnesses and I'm entitled to cross-examine, and I'm entitled
to do this, and we need to follow the criminal procedure
code,'' you would say, ``No. This is the Senate of the United
States.'' And you would rightfully say that. You set your own
rules in this.
And the same thing is true with the criminal law of the
land. I think that we make a criminal case for obstruction of
justice that can be prosecuted, as other people are in every
courtroom in this land. But that is not the burden here. The
issue is, Is this an impeachable offense? And something that is
much higher is at stake, and that is the public trust, the
integrity of our Government, much more than in United States v.
Shannon. And that is what you are dealing with.
So we can debate the criminal code all day--and we win all
that--but we have to talk about the public trust, the integrity
of our system. And that is what our country needs you to win
for them.
The CHIEF JUSTICE. This question is from Senators Thurmond
and Bunning to the counsel for the President:
If there was no case and the White House accepted the
results of the justice system, why then did the President pay
nearly $1 million to Paula Jones?
Mr. Counsel RUFF. I say this with all due respect, truly.
As I think everyone knows in this Chamber, and outside this
Chamber, who has practiced law, litigated difficult cases, the
judgment of a defendant to settle a case, to pay whatever sum
may be required to settle it, is, in all candor, I think, for
all of us, not reflective of any belief that he was wrong, that
the other side was right. It reflects in this case, very
candidly, a judgment by the President, which he has stated
publicly, that in the midst of the many matters that he is
responsible for, including, I must say, this matter, as well as
all those matters of state on which he spends his time and to
which he devotes his energy, he could no longer spend any of
that time and any of that energy on the Jones case.
I am so hesitant to say this, but I really believe--please
take it in the spirit it is meant--that to ask whether the
settlement of this case reflects substantively on the merits of
Ms. Jones' claim is not fair. The merits of Ms. Jones' claim
were decided by Judge Wright. She concluded that there were
none. And I really do believe that to ask whether the
President's decision to settle is somehow a reflection on the
merits, contrary to those reached by Judge Wright, is simply
not the case.
The CHIEF JUSTICE. This is a question to the White House
counsel from Senators Johnson and Leahy:
A few minutes ago, Manager Hutchinson stated that he would
be more confident of obtaining a conviction for obstruction of
justice in a court than he is in the Senate. Can that statement
be reconciled with the following exchange that occurred on the
Sunday program ``This Week'' on January 17, 1999, in which
Manager Hutchinson was asked, ``On the case that you have
against the President on obstruction of justice, not the
perjury, would you be confident of a conviction in a criminal
court,'' and Manager Hutchinson said, ``No, I would not''?
Mr. Manager HUTCHINSON. Mr. Chief Justice----
The CHIEF JUSTICE. It's addressed to the President's--is it
the President's counsel? It is addressed to the President's
counsel.
Mr. Manager HUTCHINSON. I believe under your ruling
yesterday I can't object to questions.
The CHIEF JUSTICE. That is correct.
Mr. Manager HUTCHINSON. I would----
Mr. LEVIN. Objection.
Mr. REID. Objection.
Mr. LEVIN. I object to this, if he is unable to object, to
make an objection in any other form.
The CHIEF JUSTICE. The Parliamentarian advises me that the
manager may make an objection to the question being answered.
Mr. REID. Nothing being answered.
The CHIEF JUSTICE. I have second thoughts, frankly. That
ruling is based on a very Delphic, almost incomprehensible
statement that Salmon Chase made during the trial of Andrew
Johnson. And I think the correct response is that the managers
do not have a right to object to a question by the Senator. So
I rule the objection out of order.
Mrs. BOXER. Regular order.
Ms. Counsel MILLS. I just wanted to address, for a second,
Manager Hutchinson's comments with regard to 1503. And he cited
a 1987 case. In 1995, I think, as we talked a little bit about,
and the House managers had discussed, Aguilar came down. And in
that case the issue was, Was there sufficient nexus between the
actual conduct of the person involved and the proceeding? And
in particular, I am just going to read to you for 1 minute from
the case law.
The Government argues that respondent ``understood that his
false statements would be provided to the grand jury'' and that
he made [these] statements . . . to thwart the grand jury
investigation and not just the FBI investigation. . . . The
Government supports its argument with . . . the transcript . .
They go through the discussion that was between the judge
and the agent in which the judge specifically asked whether or
not he was a target for the grand jury investigation, and the
agent responded:
There is a grand jury meeting. Convening I guess that's the
correct word. . . . [E]vidence will be heard . . . I'm sure on
this issue.
So, in other words, the person making the statement knew at
that point that there was potentially the possibility that his
testimony would be presented to the grand jury, and the court
ruled, as I talked to you a little bit about during my
presentation before, that that was an insufficient nexus for
there to prove a violation of 1503.
The CHIEF JUSTICE. This question is from Senators Helms and
Stevens to the House managers.
Do you have any comment upon the answer just given by the
President's counsel?
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
First, I want to thank Ms. Mills for the courtesy she
extended to me just a moment ago. And in our exchange, and Mr.
Chief Justice, what I started to state my objection was, was
really not to the question at that point, but I was just going
to make the reference to the anticipated answer that the
statement on ``This Week with Sam and Cokie'' was not exactly a
part of this record. We are to be debating the facts of this
case, and Ms. Mills was kind enough not to go into that. I
think she was going to make the point that the answer I made
was in reference to the need to call witnesses; that how
confident can you be in any case without calling a witness so
the jury can hear it?
Let me go back to what Ms. Mills said. She did cite the
United States v. Aguilar, and I wish the Chief Justice--since
he wrote the opinion--could give us a lecture on that
particular decision. I feel maybe we should not be talking
about this. But I read that opinion as totally consistent with
the United States v. Shannon and that the law is clear, that if
this body were to apply 18 U.S.C., section 1503, that a
conviction would obtain, but again this is a body gathered for
the purpose of consideration of an impeachable offense.
I also yield to Mr. Graham on that point.
Mr. Manager GRAHAM. This is Saturday at 12:30 and a lot of
people are probably watching with interest what is going on.
Let's talk about the law just for a moment in a way that we all
can understand when this thing is over with.
It is a long time since I have been in law school, but I
liked the exchange between the professor and the students
because you kind of understood what the law was about at the
end of the day. Witness tampering is designed--the statute is
designed to do what? As Senator Bumpers and I would say in
Arkansas and South Carolina, ``messin' with people.'' We can
elevate that a little bit and say that the witness tampering
statutes that we are talking about here are designed to make
sure we get to the truth. Section 1512 is in the conjunctive,
part (b): ``Whoever knowingly uses intimidation or physical
force.''
That is one thing you don't want to happen here. You never
want anybody to go up to a potential witness and threaten
through force or intimidation to tell something that is not
true. So that is out of bounds. That is illegal.
Or ``corruptly persuades''--now, what does that mean? There
are some cases that talk about what that means. That means if
the person has an intent, an evil intent or an improper purpose
to persuade somebody without force or intimidation, that that
is a crime.
Or listen to this: ``Engages in misleading conduct toward
another person with the intent to influence or prevent the
testimony of any person in an official proceeding.''
What are we getting to there, ladies and gentlemen? What
the law says, if you go to a person who likes you, who is your
friend, who trusts you, and you try to get them to tell a
story--through misleading them--that is not true, that is a
crime.
The marvelous thing about the law is that it is based in
common sense. It is very obvious to us we don't want somebody
to tell a story that is not true. It is also obvious to us that
we don't want to take personal relationships and misuse them to
get false testimony out into a courtroom.
So if you go back to your secretary--who trusts you, who
likes you, who admires you--and you try to mislead them by
telling a scenario that is not true, and you believe that they
may appear in court one day, what you have done is very wrong,
because what you have done is you have planted the seed of a
lie in a way that we say is illegal.
So, if you believe the President of the United States was
not refreshing his memory when he told Betty Currie, ``She
wanted to have sex with me and I couldn't do that. I never
touched her, did I, Betty?'' If you believe that is not to
refresh his memory, if you believe that was misleading, and you
believe that he had reason to believe she was going to be a
witness because of his own conduct, then he is guilty.
The CHIEF JUSTICE. This question is from Senator Kerrey of
Nebraska to the counsel for the President.
Could you elaborate on your comments about the settlement
of the Jones case, focusing on the reality, for example, that
corporations in this country routinely settle cases they regard
as utterly without merit, simply to spare the costs of defense,
public embarrassment, and for other reasons?
Mr. Counsel RUFF. Mr. Chief Justice, I think far better
than I did, the Senator from Nebraska has already elaborated on
my answer. I think all of us who have been involved, either as
lawyers or as parties, unhappily, in litigation know the burden
that it imposes, and one can only imagine--I am barely able
to--a special burden that it places on a President to be
immersed in this kind of litigation.
We take, I think, as a basic understanding in our
jurisprudence that, as a matter of law, the settlement of a
case is not probative of any belief on either side about the
strengths or weaknesses, but what it is, as a matter of law, is
probably less relevant than what it is to this body or to the
American public's perception.
But underlying the law about what one can do in litigation
in using a decision to settle is, I think, a commonsense
judgment that everybody, whether it be a large corporation or
individual or the President of the United States, makes a
judgment about where his or her resources should be expended--
and I don't mean simply resources in terms of dollars, although
they are secondly important--but resources in terms of energy,
time, worry, interference with the day-to-day business that all
of us have to conduct.
And I think it is fair to say that it is those factors,
those very commonsense factors, the ones we would all weigh, in
different circumstances at different settings if we were caught
up in litigation, that inform your judgment about what you
should or, in my judgment, should not take from the fact that
the President settled this case.
The CHIEF JUSTICE. This question is from Senators Nickles,
Warner, Helms, Inhofe, and Thurmond to counsel for the
President.
Members of the armed services are presently removed from
service for improper sexual conduct and/or for perjury. If the
President is acquitted by the Senate, would not it result in a
lower standard of conduct for the Commander in Chief than the
other 1.3 million members of the armed services?
Mr. Counsel RUFF. Mr. Chief Justice, this, of course, is a
question legitimately asked but I also think legitimately
answered no. We all understand entirely what rules are imposed
on members of the armed services. Indeed, every member of the
Federal civil service, every member of a private company, when
they engage in certain conduct, may be sanctioned for it.
In the military, I understand--as do the Senators who have
much greater personal and institutional experience with our
Armed Forces than I--the importance of maintaining due order
and discipline in the armed services, and also the importance
of believing that nothing that the Commander in Chief does or
says should ever undermine the strength of our Armed Forces,
their cohesiveness, or their belief in the rules and integrity
of the rules that govern them.
But, that said, I do not believe, as a matter of what will
flow from an acquittal of the President, who is, indeed,
Commander in Chief, that that will in fact undermine the good
order and discipline of the Army. But if I am wrong in some
fashion about that, if my understanding of the process is
flawed--and it may well be--we, nonetheless, have to ask the
question which I think is implicit in the question that was put
to me: Because of the rules that apply to members of the Armed
Forces, does it follow that because a sergeant, or a
lieutenant, or a general, or an admiral will suffer in his
career, that we must go back to the framers who wrote the
impeachment clause and say they must have expected that the
Commander in Chief, the President, would be removed for the
same conduct? They had an Armed Forces then. Indeed, they were
probably more intimately involved with that, having just come
through the Revolution, than Presidents and leaders of the
country have been in the following 210 years. They surely
understood that there was a constitutional and societal
difference between the President in his role as Commander in
Chief and the President in his role as the leader of the
country, on the one hand, and those to whom rules of discipline
had to apply in order to secure the strongest and best Armed
Forces that we could secure.
It is, in a sense, I suppose, not an easy answer to give,
because members of the Armed Forces put their lives on the
line, and we want them to feel that they are being treated
fairly. But at the end of the day, it cannot be that the
President of the United States is removable for conduct that
would adversely affect a career of a member of the military.
There may be occasions on which the President engages in
such horrific conduct that he ought to be removed, and the same
would happen to an admiral, or a general, or the Chief of Staff
of the Joint Chiefs, or the highest military member that you
can contemplate. But that doesn't mean that this conduct is
transposed from the world of the military into the world of the
Constitution in such a way that the President, even if he is
our Commander in Chief, should be removed from office, because
I think that judgment would be inconsistent with the judgment
made by the framers.
RECESS
Mr. LOTT. Mr. Chief Justice, I suggest that this would be
an excellent time to take a 1-hour break for lunch.
There being no objection, at 12:44 p.m., the Senate
recessed until 1:45 p.m.; whereupon, the Senate reassembled
when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Mr. Chief Justice, we are ready momentarily to begin with
the questioning period again. I believe the first question will
come through Senator Daschle.
I do want to say to our colleagues that any Senator is
entitled to propound a question on both sides, and so we will
give you every opportunity to do that. Again, it is our intent
to go today not later than 4 o'clock, and if additional time is
needed for questions, it will have to go over until Monday. We
have some questions that have already been propounded that we
would like to put to one side or the other, but at some point I
think we will have a sense that maybe the basic questions have
been asked.
So if any Senator on either side feels strongly about a
particular question, he or she may want to be thinking about
how and when they insist that it be offered. But I think a lot
of ground has been covered. I hope that within a reasonable
period of time the questions that Senators have will be given
and we will have a response, and then we will make a decision
on how to proceed from there.
I yield, Mr. Chief Justice.
The CHIEF JUSTICE. This is a question from Senator Bingaman
to counsel for the President.
When Samuel Dash resigned as adviser to the independent
counsel, he wrote in the letter of resignation that he was
doing so because the independent counsel had become an advocate
and had ``unlawfully intruded on the power of impeachment which
the Constitution gives solely to the House.''
In using his power to assist one party to the pending
impeachment trial before the Senate, do you believe he has
unlawfully intruded on the power of the Senate to try
impeachments?
Mr. Counsel RUFF. Mr. Chief Justice, Senators, the
independent counsel statute gives the independent counsel in
some sense almost unbounded power to investigate the President
and other high officials of Government. It does not give him
and has never given him unbounded power even to the extent that
he has become immersed in the impeachment proceedings in the
House. For the statute itself says not you shall become the
436th Member of the House, not that impeachment is vested in
the independent counsel, but that impeachment is vested in the
House and trial in the Senate.
We were, obviously, dismayed at the role that the
independent counsel chose to follow rather than simply sending
information to the House that might bear on possible
impeachable offenses but, rather, to drive his van up to the
building and unload unscreened, undiluted boxes of information
which thereafter made their way, at least in part, into the
public domain.
But surely it was a shock to all of us, at least on this
side, to learn yesterday evening that playing a role in the
House proceedings had now become a role in this Chamber, that
the independent counsel was using not only his powers of
coercion but calling on the U.S. district court to assist him
and, in turn, enabling the managers not simply, as they would
have it, to do a little work product, to do a little meeting
and greeting, to do a little saying hello and a little chatting
with someone who may be a witness before this body but, rather,
saying to this witness: I hold your life in my hands and I'm
going to transfer that power to the managers for the House of
Representatives.
The managers have said we are engaged in an adversary
process here, and they themselves have talked long and loud
today about letting them play out the process that any lawyer
would play out preparing for trial. Well, no other lawyer that
I know of gets to have a prosecutor sitting in a room with him
and saying to the witness: Talk to these people or your
immunity deal is gone and you may go to jail.
Now, we have been accused by Manager Hutchinson and others
of always talking about process, of always falling back on
process. Well, I suggest, Senators, that process is what our
justice system is all about. Process is what we have always
relied on to protect everyone against the vaunted power of the
state in this case; not just the managers, but the state
embodied in the independent counsel.
But in this case it is more than just a call for due
process, for fairness, because it is going to have a direct and
immediate impact on the facts as we learn them, as they learn
them, and most importantly as you learn them. Can you imagine--
can you imagine what it is going to be like for Monica Lewinsky
to be sitting in a room with the 13 managers, or however many
there are, and the independent counsel, and his lawyers,
knowing the threat that she is under, knowing how she got into
that room? Can we have any reason to believe that what comes
out of that process will be the fair, unvarnished truth? Or
will she, of necessity, be looking over her shoulder and saying
I better not put one foot wrong because the independent counsel
is sitting there watching, and he has already told me that this
deal is gone if I don't cooperate with the House managers.
Process and truth, they are inextricably linked, but not--
not if the independent counsel moves to that side of the room
and becomes the moving force in the development of the truth
and the facts as this body is entitled to know them.
Accuse us of talking about process if you will; accuse us,
if you will, of falling back on process. We do it proudly
because process is what this is all about, because process
leads to truth. But not that way.
The CHIEF JUSTICE. This is a question from Senators
Specter, Frist, Smith of New Hampshire, Inhofe, Lugar,
Brownback, Roth, and Crapo to counsel for the President:
In arguing that an impeachable offense involves only a
public duty, what is your best argument that a public duty is
not involved in the President's constitutional duty to execute
the laws? At a minimum, doesn't the President have a duty not
to violate the laws under the constitutional responsibility to
execute the laws?
Mr. Counsel RUFF. It can't be. It can't be that if the
President violates the law and thus violates his duty
faithfully to carry out the laws, he is removed from office.
Because that would literally encompass virtually every law,
every regulation, every policy, every guideline that you could
imagine that he is responsible for carrying out in the
executive branch. If that were so, it would have been very
simple for the framers to say the President shall be impeached
for treason, bribery and failure to carry out his oath
faithfully to execute the laws. They wrote that. They could
have incorporated it into the impeachment clause if they had
wished, and they chose not to.
So that if, in fact, you suggest that a failure to
faithfully execute the laws inevitably leads to a decision that
an impeachable and removable offense has been committed, I
suggest with all respect that you have simply eliminated the
impact of the words ``treason, bribery and other high crimes
and misdemeanors.''
Now, you may well judge within that setting--that is,
within that constitutional standard ``other high crimes and
misdemeanors''--that some particular violation of law warrants
removal. But it surely can't be, just looking back at what the
framers did and what the words themselves mean, that any
violation, even if you were to find one, must lead you to
conclude that having therefore violated his responsibility to
faithfully execute the laws, removal must follow.
The framers knew what the other parts of the Constitution
said, and they specifically chose the words they chose,
intending that they cover only the most egregious violations of
the public law and public trust that they could conceive of.
The CHIEF JUSTICE. This is from Senator Graham to counsel
for President Clinton:
In the event the Senate determines the removal of the
President is not warranted, are there any constitutional
impediments to the following action: (1) a formal motion of
censure; (2) a motion other than censure incorporating the
Senate's acknowledgement and disapproval of the President's
conduct; (3) a motion requiring a formal Presidential apology
or any other statement accepting the judgment of the Senate; or
(4) a motion requiring the President to state that he will not
accept a pardon for any previous criminal activities.
Assuming that one or more of the above actions are
constitutional, are there any other serious policy concerns
about the advisability of the Senate formally adopting a
legislative sanction of the President that falls outside the
scope of the constitutional sanction of removal from office?
Mr. GRAMM addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Texas.
Mr. GRAMM. Mr. President, I would like the record to show
that that was Senator Graham of Florida. [Laughter.]
The CHIEF JUSTICE. The record may so show.
Mr. Counsel RUFF. Senator Gramm, my apologies. I assumed
since Senator Daschle sent it up it was probably from this
side, but I am glad you clarified the record.
That question probably requires much more constitutional
learning to answer in great detail than I possess, but let me
give it a try. And the easiest one for me to answer is the
fourth part: Would it be appropriate, in some fashion, for the
President formally to state that he would not accept a pardon?
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 sanction or 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 will not even begin to tread on the territory that is the
Senate's jurisdiction and the issues that it takes unto itself,
much less give it advice about what it is possible or not
possible to do, except to venture this. I see no constitutional
barrier, certainly, to the Senate's passing a censure motion in
whatever form it chooses--whether adopting language from the
articles or creating language of its own. We might at the end
of the day disagree with you about whether the language is
justified or whether it accurately reflects the facts, but
there is nothing in the Constitution, I believe, that prevents
this body from undertaking that task.
With respect to a formal acknowledgment, there I suppose
the interplay between the legislative and the executive branch
becomes more tenuous. But to the extent that whatever the
Senate chooses to say in such a document needs to be
acknowledged or recognized by the President, that can be done
without entrenching on the separation of powers in that special
uncertain area between the legislative and executive branches.
I have no doubt that some process can be worked out that meets
the Senate's needs. I say this all in the sort of vast limbo of
hypothesis, because obviously I am answering both somewhat off
the cuff and without knowing what language we are talking
about.
But the core position, as we see it, is that nothing stands
in the way of this body from voicing its sentiments. Indeed, I
have said in the House of Representatives that I thought a
censure was an appropriate response, and the President has said
he is prepared to accept the censure. I have no doubt, although
that was said in the context of the proceedings in the House,
it surely is applicable as well to anything that this body
chooses to do.
The CHIEF JUSTICE. This is a question from Senator Thompson
to the House managers:
Do you have any comment on the answer given by the
President's counsel with regard to the Office of Independent
Counsel?
Mr. Manager McCOLLUM. Mr. Chief Justice, Senators, thank
you for that question. It is our judgment--and I think a fair
judgment--that we should be allowed and are permitted, under
any of the rules normal to this, to request of the Office of
Independent Counsel the opportunity to talk to Monica Lewinsky,
which we otherwise apparently were not going to be able to have
as a normal course of preparation.
It makes me wonder--with all of the complaints that are
going on here from the White House attorneys about this and
their desire not to have witnesses--what they are afraid of.
Are they afraid of our talking to Monica Lewinsky? Are they
afraid of the deposition of Monica Lewinsky? Are they afraid of
what she might say out here? I don't think they should be, but
they appear to be.
We are not doing anything abnormal. We are exercising our
privileges, our rights. If it were a prosecutor and you had a
prosecutorial arm, which you do in the case of the Independent
Counsel Office, that had an immunity agreement, as there is in
this case, you certainly would not hesitate if you had a
recalcitrant witness who you needed to call to utilize that
immunity agreement and have the opportunity to discuss the
matter with that witness, and you certainly would not hesitate
if you needed to use that immunity agreement to assure truthful
testimony in any proceeding that was going on.
After all, that is the purpose of the immunity agreement.
It means that the witness is probably much more likely to be
telling the truth than under any other circumstances, which is
why counsels frequently argue immunity agreements as a reason
why a particular witness is more credible than he or she might
otherwise be if it were not for that agreement.
So I think there is an awful lot being said today about our
meeting that we want to have with Ms. Lewinsky to prepare her
as a witness. I want to tell you all it is being done, in my
judgment, with all due respect to those who are doing it,
principally because of the concerns they don't want us to have
that opportunity or they want to cast some aspersion or doubt,
or whatever.
We are not about to do anything improper. We can assure you
of that. We would never do that. We are going to follow regular
order and do this as good counsels would do in good faith, and
in no way would we wish to do it otherwise, nor have we. Thank
you.
The CHIEF JUSTICE. This is a question of Senator Baucus to
the House managers:
In view of the direct election of the President, his
popularity, and short duration of his term, and in view of the
fact that, as House Manager Graham stated, ``reasonable people
can differ in this case,'' please explain, precisely, how
acquitting the President will result in an immediate threat to
the stability of our Government.
Mr. Manager HYDE. Mr. Chief Justice, ladies and gentlemen
of the Senate, I don't think anyone contends that if the
President is acquitted that suddenly it is apocalypse now or
the Republic will be threatened from without or from within. I
think erosion can happen very slowly and very deliberately. The
problem that I have is with this office being fulfilled by
someone who has a double responsibility.
The first responsibility is to take care that the laws be
faithfully executed. He is the only person in the country, in
the world, who has that compact with the American people. The
other, of course, is his oath to preserve, protect and defend
the Constitution. He is the national role model, he is the man,
he is the flagbearer in front of our country. He is the person,
his office is the person every parent says to their little
child, ``I hope you grow up and be President of the United
States some day.'' We do nothing as important as raising our
kids, and the President is the role model for every kid in the
country.
When you have a President who lies and lies and lies under
oath--and that is the key phrase, ``under oath.'' I don't care
about his private life or matters that are not public. But when
he takes an oath to tell the truth, the whole truth, nothing
but the truth and then lies and lies and lies, what kind of a
lesson is that for our kids and our grandkids? What does it do
to the rule of law?
Injustice is a terrible thing. The longer you live, the
more you can encounter it. Injustice, abuse, oppression, and
the law is what protects you; the law, having resort to an
objective standard of morality in action. And when you are
sworn to take care that the laws are faithfully executed, how
do you reconcile the conduct of perjury and obstruction of
justice with that obligation?
I have a suggestion. Let's just tear it out of the
Constitution. Tear out that ``take care to see that the laws
are faithfully executed.'' It is wrong. It is an example we are
setting for millions of kids that if the President can do it,
you can do it. What do you say to master sergeants who have
their careers destroyed because they hit on an inferior member
of the military? We are setting the parameters of permissible
Presidential conduct for the one office that ought to gleam in
the sunlight. And the kids, that is what moves me, the kids.
The CHIEF JUSTICE. This question is from Senators Nickles,
Warner, Crapo, Helms, Inhofe, and Thurmond to the House
managers:
Would you like to comment on the remarks of Counsel Ruff
concerning the impact of an acquittal of the President accused
of improper sexual conduct and/or perjury and obstruction on
the Armed Forces?
Mr. Manager BUYER. Mr. Chief Justice, I would like to thank
the Senators for the question, because I believe it is also
insightful.
The question of double standards or establishing lower
standards, I believe, is extraordinarily important. The defense
asserted--and it is hard for me to believe--but they are asking
you to set a higher standard for judges and a lower standard
for a President who nominates them to you, asking you--they
think that we can set a higher standard for law enforcement,
yet establish a lower standard for the Chief Executive or the
chief law enforcement officer who has the duty to faithfully
see that the laws are executed; set a higher standard for
military personnel, and then a lower standard for the Commander
in Chief who must make the painful decisions to send them into
battle.
Now, the precedents in impeachment trials here in the
Senate, the judgment of the Armed Services Committee and the
Senate regarding the standards for promotion, have been
otherwise than that which Mr. Ruff has asserted.
We must confront the fact that the President is the
Commander in Chief. And I believe that it is perfectly
acceptable of the American people to demand of the military the
highest standard, which also means that those who find
themselves in positions of responsibility in the Pentagon who
are in civilian leadership must also live by such exemplary
conduct and standards. The high character of military officers
is a safeguard of the character of a nation.
The Senate, which must ratify the officers' promotion list,
has repeatedly found that anything less than exemplary conduct
is therefore unworthy of a commission or further promotion. I
recall when I first came to Congress in 1992, there were many
making a big to-do over Tailhook. Remember? And it was serious.
There are still remnants around of Tailhook because there are
still those who are screening the officers' promotion. If you
were within 100 miles of Tailhook, look out for your career.
That needs to be put to bed.
Then I was given a duty to ensure that after Aberdeen broke
and the sexual misconduct in the military--whether it was at
Fort Jackson, Aberdeen, or at other places--I spent 18 months
out on the road to ensure that the policies of the military
were fair and the treatment of equal dignity in the workplace
among men and women. We cannot forget that.
You see, we also must recognize and must be candid with the
harsh reality that the officers and NCOs are human and not
without fault, folly, and failings. I believe, though, it is
the aspirations of high ideals that are important for each of
us, but more so to the military in order to keep the trust and
the public faith in the military. You see, a soldier, a sailor,
an airman or marine is prepared to lay down his or her life to
defend the Constitution. And it is the devotion and the
fidelity to the oath without mental reservation that is the
epitome of character.
Now, the President is not and should not be subject to the
Uniform Code of Military Justice. And I concur with Mr. Ruff
when he made that point. And the President is not an actual
member of the military. But we have a unique system in the
world. We have that civilian control of the military, and it
works. But we also must recognize and be cognizant that the
President, however, is at the pinnacle, he is at the top of the
chain of command. And that is what I learned about, being on
the road for 18 months, and How do we make corrections? and How
do you set the proper dignity in the workplace?
It doesn't matter if it is your own office or, in fact, if
you are the President as Commander in Chief. Whoever leads you
sets the tenor of those who must follow. You see, the message
is that the military personnel do look to the Commander in
Chief to set the high standard of moral and ethical behavior.
The military personnel are required to set a high standard of
conduct in order to set the example to those they lead.
Adherence to high standards is the fabric of good order and
discipline. When military leaders fall short of this ideal,
then there is confusion and disruption in the ranks. And today
many do see a double standard. There is a double standard
because the Commander in Chief has allegedly conducted himself
in a manner that would be a court-martial offense for military
personnel having been accused of the very same thing.
The President's actions have had an intangible and coercive
impact upon military personnel. To turn a blind eye and a deaf
ear to it would be shame on us. The question soldiers and
sailors ask is: I took an oath to swear to tell the truth. And
I also took an oath to uphold the Constitution. How can this
President take the same oath and not be truthful and remain in
office? If I were to have done what the President did, I would
be court-martialed.
You see, we also have to recognize that each of the
services are recruiting young people all across the Nation. At
boot camp they infuse these young people with the moral values
of honor, courage and commitment, and they're teaching self-
restraint, discipline and self-sacrifice. Military leaders are
required to provide a good example to those young recruits, yet
when they look up the chain of command, all the way to the
Commander in Chief, they see a double standard at the top.
Again, it is the President who sets the tone and tenor in the
military, just as he does for law enforcement.
I believe the President has violated this sacred trust
between the leaders and those he was entrusted to lead. I also
spoke in my presentation that it was the President's self-
inflicted wounds that have called his own credibility into
question not only in his decisionmaking process, but with
regard to security policies.
The CHIEF JUSTICE. The Chair has the view that you have
answered the question.
Mr. Manager BUYER. Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. This is a question from Senators
Torricelli and Kohl to the President's counsel:
At the outset of the House proceedings, a member of the
majority, now a manager, stated: ``The solemn duty that
confronts us requires that we attain a heroic level of
bipartisanship and that we conduct our deliberations in a fair,
full and independent manner. . . . The American people deserve
a competent, independent, and bipartisan review of the
Independent Counsel's report. They must have confidence in the
process. Politics must be checked at the door.''
In evaluating the case against the President, should the
Senate take into account: (a) the partisan nature of the
proceedings in the House, or (b) the public's ``lack of
confidence'' in the proceedings thus far?
Mr. Counsel KENDALL. Mr. Chief Justice, I think that this
body has to take into consideration what brought these articles
here, and that is the action both of the independent counsel
and the House of Representatives. I think when fairly
considered, when you look at the actions of both, you find an
absence of fairness and bipartisanship.
The independent counsel investigated this case for 8
months. It developed every bit of evidence it could that was
negative, derogatory, or prejudicial, and it put them into
those five volumes. It did not pursue exculpatory leads. It did
not follow up evidence that might lead to evidence of
innocence. And it downplayed, when it came to write the
referral, significant testimony which was exculpatory or
helpful.
I think the independent counsel's process was really
epitomized by Ms. Lewinsky's statement that nobody asked her to
lie or had promised her a job for silence. You see, the
independent counsel didn't bring out that testimony. In fact,
it came out when the independent counsel was through examining
Ms. Lewinsky in the grand jury. I want to read you a very short
part of that, page 1161 of the appendix.
Independent counsel prosecutor says, ``We don't have any
further questions,'' and a grand juror pipes up, ``Could I ask
one?''
Monica, is there anything that you would like to add to
your prior testimony, either today or the last time you were
here, or anything that you think needs to be amplified on or
clarified? I just want to give you the fullest opportunity.
Here is what Ms. Lewinsky says:
I would. I think because of the public nature of how this
investigation has been and what the charges aired, that I would
just like to say that no one ever asked me to lie and I was
never promised a job for my silence. And that I'm sorry. I'm
really sorry for everything that's happened.
Now, we requested the independent counsel, before he sent
the referral to the House of Representatives, for an
opportunity to review that. We were denied this.
I think if you compare what happened here with what
happened in 1974 when Special Prosecutor Jaworski sent a
transmission of evidence to the House Judiciary Committee, the
comparison is very revealing. Then Special Prosecutor Jaworski
sent only a road map of the evidence, a description of what was
in the record. Judge Sirica reviewed that at a hearing where
White House counsel were present. Judge Sirica then said it was
a fair, impartial summary and transmitted it on to the House
Judiciary Committee. Here, without review either by the
presiding judge or the grand jury, a referral was sent to the
House that was a one-sided, unfair prosecutorial summary.
When the House managers speak of the need for discovery,
they have no such need. Everything prejudicial that could be
found through an unlimited budget and seemingly endless
investigation has been found and put there, tied up with a red
ribbon for you.
In terms of bipartisanship in the House, I think that
speaks for itself. I don't think this was a bipartisan process.
I don't think it was a bipartisan result. I think, though, it
rests with this body to try the case. It is clear under the
Constitution that this body has the power, the sole power, to
try impeachment. The Chief Justice in the Nixon case made that
very clear.
I am not going to comment on the independent counsel's
assistance to the House manager with Ms. Lewinsky. I think that
is for you to decide whether that is consonant with how you
decide the case ought to be tried. But I think that the
presentation of the articles to this body has been neither fair
nor bipartisan.
The CHIEF JUSTICE. This is a question from Senator Lott to
the House managers:
Do you have any comment on the answer just given by the
President's counsel?
Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate,
I welcome this opportunity to fill in a considerable gap in the
record.
Mr. Counsel Kendall said earlier today or perhaps
yesterday--it was yesterday--``We never had a chance to call
witnesses ourselves, to examine them, to cross-examine them, to
subpoena documentary evidence, at no point in this process.''
On October 5, 1998, the House Judiciary Committee passed
House Resolution 581 by voice vote, the impeachment inquiry
procedure, which included the right to call witnesses for the
President.
On October 21, the House Judiciary Committee staff met with
Mr. Ruff, Mr. Kendall, and Mr. Craig. At that time, the
Judiciary Committee staff asked the White House to provide any
exculpatory information, provide a list of any witnesses they
wanted to call, without result.
On November 9, the House Judiciary Committee wrote to
Messrs. Ruff, Kendall, and Craig and again informed them of the
President's right to call witnesses.
On November 19, Independent Counsel Starr testified 12
hours before the House Committee on the Judiciary. President's
counsel was given the opportunity to question the independent
counsel. He did not ask a single question relating to the facts
of the independent counsel's allegations against the President.
Now, the Democrats have Mr. Kendall, they had Abbe Lowell; we
had Dave Schippers. That is not an invidious comparison.
On November 25, I wrote a letter to the President asking
the President, among other things, to provide any exculpatory
information and inform the committee of any witnesses it wanted
to call, without success.
On December 4, two working days before the presentation of
the President to the Judiciary Committee, counsel for the
President requested to put on 15 witnesses. The White House was
allowed to present all 15 witnesses. Not a single one of those
was a fact witness.
Lastly, I quote from a letter from Mr. Kendall to Mr.
Bittman. It is in volume III, part 2 of 2, page 2326:
That you now request we submit exculpatory evidence is
perfectly consonant with the occasionally ``Alice in
Wonderland'' nature of this whole enterprise. I am not aware of
anything that the President needs to exculpate.
The CHIEF JUSTICE. This question is from Senator Leahy to
the White House counsel:
The managers argued in response to a previous question that
would set a bad example for the military to acquit the
President. Given that argument, how could you reconcile the
statement by Manager Hyde after Caspar Weinberger was pardoned
by President Bush of multiple criminal violations, including
perjury, that, ``I'm glad the President had the chutzpa to do
it. The prosecution of Weinberger was political in nature, an
effort to get at Ronald Reagan. I just wish us out of this
mess, the 6 years and this $30 or $40 million that has been
spent by independent counsel Lawrence E. Walsh''?
Mr. Counsel RUFF. The question, in virtually every respect,
speaks for itself.
But I would make this point because I think it fleshes out
a bit my earlier answer and responds in some fashion to the
argument made by the managers on this very issue. I was
probably too lawyerly, as is my wont, in responding to the
earlier question on this issue by Senators Warner and Thurmond,
because I think the one point that needs to be made in the
context of Senator Leahy's question which goes to the
leadership of the Secretary of Defense and the issue of what it
means to undertake the removal of a President, the distinction
that I think we all need to hold on to that I probably glided
over too rapidly in my earlier answer, is that the President of
the United States is elected by the people of the United
States.
He appoints the Secretary of Defense; he appoints the
officers in the military; he appoints the judges. And the
Senate plays a role in that process by approving his choices,
or occasionally not approving his choices. But there is only
one person who is put in his job with the voice of the people,
and however we may be concerned, as rightly we should, if that
person oversteps the bounds either of his office or his
personal conduct, to say that there is some one-to-one, or any
other number you can think of, comparison between the impact of
enforcing the law on those civilian and military personnel who
serve our country and the very different question of whether
the voice of the people will be stilled by removing the
President is the point on which I think this body needs to
focus.
The CHIEF JUSTICE. This question is from Senators Kyl and
Mack to counsel for the President:
Mr. Ruff said President Clinton was never asked in the
grand jury whether everything he testified to in the Jones
deposition was true. If he were asked, would he say it was all
true? Would the President be willing to answer an interrogatory
from the Senate asking that question?
Mr. Counsel CRAIG. Senator, it is true that he testified
that he tried to be truthful in the Jones deposition, that it
was his purpose to be accurate in the Jones deposition. He
tried to navigate his way through a minefield without violating
the law, and believes that he did. There is no statement in
that testimony in the grand jury that reaffirms, ratifies, and
confirms all of his testimony in the Jones deposition.
Now, we would be happy to take questions and get responses
to you, consult the President, if you would like to submit
them.
The CHIEF JUSTICE. This is a question from Senator Murray
to the White House counsel:
Has Ms. Lewinsky ever claimed that she was sexually
harassed by the President?
Mr. Counsel KENDALL. Mr. Chief Justice, Ms. Lewinsky has
made no such claim. What happened between the President and her
was improper, but it was consensual. To say that does not
excuse it or sugarcoat it or justify it, but it does, I think,
put it in the proper context. She has never claimed that she
has any evidence at all relevant to sexual harassment by the
President. When the President--and I went through this on
Thursday in respect to the obstruction of justice allegation,
about the President stating that she could file an affidavit.
The President and Ms. Lewinsky reasonably believe that she
could have filed a limited but truthful affidavit.
And I think you have to look to the fact that the Jones
case was not a class action. It was a suit only about what Ms.
Jones claimed happened in May 1991 in a Little Rock hotel room.
The December 11 ruling on discovery was a ruling not only on
admissibility, but discovery. The President believed that an
affidavit--a truthful affidavit--might be successful--not that
it would, but that it might be.
Now, in filing such an affidavit, in preparing it, no
particular form was necessary. There was nothing to dictate
what had to go in and what had to go out of it. There were many
witnesses on the witness list. The end of discovery was
approaching, and there was at least some chance, they thought,
that a factual affidavit, which was limited, might accomplish
the purpose. And I think this is confirmed by the fact that
when Judge Wright considered whether to order Ms. Lewinsky's
deposition, she issued a ruling on January 29 saying that the
deposition would not go forward because evidence from Ms.
Lewinsky would not be admissible at the Paula Jones trial
because it was both irrelevant to the court allegations and it
was inadmissible as extrinsic evidence of other facts.
So I think that Ms. Lewinsky had nothing whatsoever to
offer on the critical issue in the Paula Jones case, which was
an issue of sexual harassment.
The CHIEF JUSTICE. This is a question by Senator Shelby to
the House managers:
Would a verdict of not guilty be a stronger message of
vindication for the President than a motion to dismiss, or, in
the alternative, a motion to adjourn? And what are the
constitutional implications, if any, if a motion to dismiss
prevailed, short of concluding the trial?
Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate,
there are various options. It is really a misdirected question,
if I may say, to ask us to suggest the consequences of
solutions to this dilemma that we are in. I think the beauty--
and that is not the word--I think the advantage of proceeding
with the articles of impeachment is it is consonant with the
Constitution. It is simple; it is clean: either guilty or not
guilty.
The consequences of that verdict, of course, are up to any
individual who casts a vote. Now, I have heard the word
``censure'' sometime before. You gentlemen and ladies do
anything you want to do. It is your power, it is your
authority, it is in your yard, but you have to deal with the
Constitution, no matter what you do.
You have a problem of a bill of attainder, a problem of the
separation of powers, and you have a problem that any censure,
to be meaningful, has to at least damage the President's
reputation; and that becomes, in my judgment, a bill of
attainder, but that, again, is up to you. The consequences, I
don't think, will harm us, whatever you do. We have done our
best. We have lived up to our responsibility under the
Constitution, and all we ask is that you live up to your
responsibilities under the Constitution and give us a trial. I
am sure you will.
The CHIEF JUSTICE. This is a question to the President's
counsel from Senator Levin:
Monica Lewinsky has explicitly said in her handwritten
proffer that ``no one encouraged'' her to lie. Yet, House
Manager Asa Hutchinson claimed to the Senate, using inferences,
that Ms. Lewinsky was ``encouraged'' to lie. Do the House
managers argue that such inferences are as credible as Ms.
Lewinsky's direct testimony to the contrary?
Mr. Counsel RUFF. I think Senator Levin's question goes to
the heart of much of what we have been saying for the last few
days. If, in fact, you look at the five volumes stacked up in
front of my colleague, Mr. Kendall, you will see Ms. Lewinsky
say not just once, but many times, in essence: I was never told
to, never encouraged to lie, never traded an affidavit for a
job, never did any of the things that lie at the very heart of
the managers' case. And so what do we have, then? We have the
managers trying to snatch a bit of evidence here, a bit of
speculation there, or a bit of extrapolation over there, and
say, well, she really didn't mean it when she said several
times quite directly, ``Nobody ever told me or encouraged me to
lie.''
It is possible, of course, whenever one deals with
circumstantial evidence, to make reasonable leaps from that
evidence to some viable conclusion. But I think most courts
that we are familiar with--and those of you who practice law
are familiar with--would have a good deal of difficulty in
concluding that if I take a little bit here and a little bit
there and a little bit over there, pull them all together into
some vast speculation about what was really in someone's mind,
and on the other side I have the person saying what is in her
mind and saying the opposite, I don't think that case would
ever get to the jury.
And maybe it is one of the things that worries me just a
little bit about the normal, everyday--we do it all the time in
conference between the managers and the independent counsel and
Ms. Lewinsky--that maybe in that setting, to the independent
counsel gently patting Ms. Lewinsky on the back and telling her
it is time to cooperate, maybe the message will become closer
to their side and their speculation, don't stay where you were,
which is what you told the grand jury, the FBI, and us under
oath and not under oath on multiple occasions, which is,
indeed, ``Nobody told me to, nobody encouraged me to lie.''
The CHIEF JUSTICE. This is a question from Senator Bond to
the House managers:
When Ms. Mills described the President's testimony before
the Jones grand jury, she said the President was ``surprised''
by questions about Ms. Lewinsky. What evidence is there of the
President's knowledge that Lewinsky questions would be asked?
Is there evidence that he knew in advance the details of the
Lewinsky affidavit which his counsel presented at the Jones
deposition?
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
There are numerous evidences in the record to show that the
President was not surprised about the questions pertaining to
Monica Lewinsky at the January 17 deposition. First of all, in
regard to the affidavit testimony of Monica Lewinsky--I believe
it was January 6--5th or 6th--it is that she discussed that
with the President, signing that affidavit, and the content of
the affidavit. That is whenever he made his statement, ``I
don't need to see it. I have seen 15 of them.''
Again, we don't know what he is referring to in reference
to that ``15.'' But clearly, according to Monica Lewinsky's
testimony, she went over the contents of that, even though she
might not have had it in hand, with the President.
Also, circumstantially, there is a conversation between Mr.
Jordan and the President during this time.
But in addition, let me just recall something I made
reference to in my presentation--that a few days before the
President's deposition testimony, that it was Michael Isikoff
of a national publication who called Betty Currie and asked
about courier records on the gifts. This startled Betty Currie,
obviously, because the gifts at that point were under her bed.
As she recalled, she probably told the President that. And then
second, she went to see Vernon Jordan about that issue.
All of that leads you to believe, clearly, that the
President fully knew that when he went into the deposition on
January 17, that he would be asked time and time again about
the specifics of his relationship with Monica Lewinsky.
So I think that addresses part of that question.
Let me remark on what Mr. Ruff just said--I am just
constantly amazed--about our effort to interview witnesses,
because yesterday Mr. Ruff--I believe it was; it might have
been Mr. Kendall; excuse me if I have the attribution wrong--
but criticized us, saying they want to call witnesses but they
have no clue what these witnesses would say. Do you recall
that? That was the argument yesterday. And so, if we make an
effort to determine what these witnesses would say, then we are
criticized for trying to find out what they would say.
So I think that again it is more convenient to talk about
what the managers are doing, what the process is, rather than
the facts of obstruction.
The CHIEF JUSTICE. This is a question to the White House
counsel from Senator Kennedy:
Would you please respond to Manager Hyde's suggestion that
an acquittal would send a bad message to the children of the
country, and to Manager Hyde's statements regarding the
fairness of the process in the House of Representatives?
Mr. Counsel CRAIG. Mr. Chief Justice, thank you for that
question.
Children--what do we tell the children? Well, ladies and
gentlemen of the Senate, that is not an academic question for
me and for my wife. I assume that is the case for many, many
families all over this country. We happen to have quite a few
children, and they are very young; they are under 12. And we
talk about what is going on here. We talk about how important
it is to tell the truth, and we talk about how wrong it was for
the President of the United States not to tell the truth. And
we think that we have learned a lot by going through that
process. We have talked about what President Clinton did and
why it was wrong.
With all due respect to the chairman of the House Judiciary
Committee, I and my wife--and I don't think many parents when
they raise their children rely every day on messages or
resolutions from the Congress of the United States to tell them
that it is important to teach children the importance of truth
telling.
I am a little bit disappointed in the inference of the
argument that those of us who oppose impeachment, for the
reasons that you understand, somehow are sending a message to
kids that it is OK not to tell the truth. I am a little bit
disappointed in that argument, because I don't think that is
the way the parents of this country feel. That is certainly not
the way I feel. And I don't believe that impeachment is a
question of what you tell your children about truth telling. Of
course you tell your children to tell the truth. Of course you
tell your children the difference between right and wrong. I am
surprised that it is an issue here.
The second part of your question, Senator: I went through
that House of Representatives experience, and I must say that I
was disappointed in it, because we had been promised
bipartisanship. When the Office of Independent Counsel sent its
referral to the House of Representatives, White House counsel
did not have access to that document before it was released to
the world. When the Office of Independent Counsel sent its
60,000 pages, 19 boxes of evidence, to the House of
Representatives, we were not given access, the way Members of
the Judiciary Committee were, to all that material. We were
given access to a very limited amount of material in the course
of that process. In fact, much of that material we never had
access to on behalf of the President.
We were disappointed that there was no actual discussion of
the constitutional standards for impeachment before they went
forward to vote on an impeachment inquiry. We thought that was
the cart before the horse.
We were disappointed and we regretted that grand jury
materials provided with promises of confidentiality were dumped
into the public with salacious material, unfiltered by the
House of Representatives and the Judiciary Committee, and we
saw party line vote after party line vote after party line vote
over and over and over again in the Judiciary Committee. We
were disappointed that the depositions went forward without our
participation. We were disappointed there was no definition of
the scope of the inquiry. We were disappointed that there was
no term of time, no limitation on either the scope or the time
of this inquiry. And we were disappointed that there was no
adequate notice of the charges.
There were two events that happened near the end of this
process that I think were particularly disappointing to us. One
was that while the debate was underway on the House floor,
Members of the House of Representatives were taken into the
evidence room and shown evidence that was not in this record,
that had not been included in the discussion in the House
Judiciary Committee, that had never been shown to counsel for
the President, that was not in the referral and became a factor
in the decisionmaking at least of some Members of the House--
unfairly so, I think.
And finally, we were disappointed that the Members of the
House of Representatives were denied the right and the
opportunity to vote for censure. They were promised the right
to vote their conscience. They were told they could vote their
conscience. And if they had been given that right to vote their
conscience, we might not be here today. We might have had the
resolution of censure and this thing might have been resolved,
and that was the greatest disappointment of all.
Thank you.
The CHIEF JUSTICE. This is a question from Senators
Bennett, Brownback, Campbell, Hagel, Roth, Specter and
McConnell to the House managers:
Would each of the managers who have been prosecutors prior
to being elected to the House of Representatives please state
briefly whether he believes he would have sought an indictment
and obtained a conviction of an individual who had engaged in
the conduct of which the President is accused?
Mr. Manager BRYANT. Mr. Chief Justice, I know there are
several, probably not only at our table, but all across this
Senate, who have had some experience somewhere in prosecution
of cases. I would just briefly say that--and I think it has
probably been said very well today more eloquently than I will
say it, not only from some of the people on our side, but even
some of the people on the President's side have talked about
this same concept of justice and the rule of law--it is so
important in our system of justice that the American people
have confidence in that.
And one of the ways that I found in my experience that
confidence sometimes suffered were phone calls that
occasionally you would receive where there had been an
allegation that someone in an elected office or some public
official in particular had, allegedly again, committed a crime
or perhaps been charged with a crime with allegations of
coverup because of who that person was--there was not equal
justice out there, people were being treated differently and
specially. And that happens, that comes with our territory. We
are very visible people. Certainly the President of the United
States is the most visible of us.
As I said in my opening remarks, he is a role model for
many people. And certainly when these kinds of allegations come
up against the President, people raise these kinds of thoughts
and complaints.
As a prosecutor, I would find this type of charge
particularly of concern not only because of the perjury, which
is so important because, as I said earlier, too, truth
underpins our whole system, but I find it equally compelling as
a prosecutor that a person of this visibility, of this
responsibility not only commits a crime himself, but he brings
someone else into that. He ensnares another person, actually
other people into this, the coverup, the obstruction part--
Monica Lewinsky, Betty Currie, Vernon Jordan, all the White
House people that we have talked about. He brings other people
into this and causes other people to commit crimes. I would
view that even more seriously because of the fact that he made
other people commit types of crimes. And because of that, I
think as a prosecutor, were this another person, a John Doe of
some visibility, a local district attorney, a local mayor or
someone like that, there would be no doubt that the allegations
would have to go to court.
And I might add in line with this that we have heard of
this selecting the President out of this process by saying,
well, we should not consider him like we would a Federal judge
or like a general that we are talking about maybe promoting to
head the Joint Chiefs of Staff or a captain for promotion to
major or really anyone else here. It almost seems that--yes, he
is different, but it almost seems that we want to treat him
like a king because he is the only person we have got here, and
because he is the only one, we can't look at him like a
thousand judges or 200 generals or other public officials.
I think that is a fallacious argument. If the facts are
there, no matter if this man is the President, to me that is
what the Constitution is about. I think they set up this
process to avoid a king and a kingdom.
I will yield time to Mr. McCollum.
Mr. Manager McCOLLUM. I will be much briefer in answering
that question, Mr. Chief Justice.
I served as a military judge advocate for 4 years on active
duty, 20 more years in the Reserves. I was a prosecutor,
defense attorney and military judge. I think this is a very
compelling case on the evidence. I would never hesitate to take
this to trial if I were prosecuting the crimes of perjury,
obstruction of justice, or any of the military offenses that
might be included in here. But just on the criminal charges
which are in the UCMJ, I would certainly do so if given the
opportunity for all the reasons and then some that Mr. Bryant
gave.
Mr. Manager BARR. Mr. Chief Justice, to me this is not a
hypothetical question in any sense of the word. As a United
States attorney under two Presidents, I had the opportunity not
only to contemplate bringing such cases based on the evidence
and the law but actually having the responsibility of carrying
those cases out and prosecuting them, including a case that
probably cost me a primary election in the Republican Party for
prosecuting a Member of Congress for precisely the activity
which brings us here today; that is, perjury, misleading a
grand jury.
So the answer to the question, Mr. Majority Leader, is not
only yes but absolutely yes.
The CHIEF JUSTICE. Mr. Hutchinson.
Mr. Manager HUTCHINSON. I know we have run out of time. The
facts and law support it, and the answer is yes. And may I add
that Mr. Rogan who has certainly prosecuted, Mr. Lindsey
Graham, and Mr. Gekas, all would--if you would like to join in
that. Otherwise, we all would affirm that the answer is yes.
The CHIEF JUSTICE. This is a question to the President's
counsel from Senators Boxer and Johnson.
The managers repeatedly assert that if the Senate acquits
President Clinton, the Senate will be making the statement that
the President of the United States should be held above the
law. If, as the managers concede, President Clinton may be held
accountable in court for the charges alleged in the House
articles regardless of the outcome of the Senate trial, how
could a Senate vote to acquit the President be characterized as
a vote to place him above the law?
Mr. Counsel RUFF. I suppose the one quote that has been
heard most often throughout these proceedings in the House and
in this body is Theodore Roosevelt's, and I won't repeat it
except to go to the heart of this question. The fact that we
are having this trial in this Chamber, the fact that we had an
impeachment proceeding in the House, is itself part of our rule
of law. The President is immersed in the application of the
rule of law at this very moment. And the rule of law, as I
think my colleague, Ms. Mills, said, is neither a sword nor a
shield, depending on your perspective. We are all subject to it
and we live with its outcome, if it is fair and is consistent
with the system of justice that we have developed in the last
210 years.
And, so, the verdict here, if it is ``not guilty'' as I
trust it will be, or if this trial is ended appropriately
through some other legal motion or mechanism, as long as it is
done within the rule of law, will have met all of our
obligations. And most importantly, it will have ensured that
the President is treated neither above nor below.
But certainly the one issue that is raised in this question
is important to focus on, because this is not a situation in
which the President walks away scot-free no matter what
happens, not to mention the personal pain and the pain that has
been suffered in going through this process. The President has
said, and I have said on his behalf, that he will not use his
powers, or ask anyone else to use their powers, to protect him
against the application of the rule of law. Moreover, just in
case it has slipped anyone's mind--and it has occasionally been
misstated in other forums--the statute that has allowed the
independent counsel to pursue the President for the last 4-plus
years specifically provides that he retains jurisdiction over
the President for a year after the President has left office.
So there can be no argument that, oh, this will just fall
into the cracks, or this will disappear into the ether
somewhere. The President will be at risk. We trust that
reasonable judgments will be made and a determination will be
reached that it is not appropriate to pursue him. But that,
too, will be pursued under the rule of law to which he is
subject.
The CHIEF JUSTICE. This is a question from Senators
Campbell, Hagel and Specter to the House managers:
White House counsel have several times asserted that the
grand jury perjury charge is just a ``he says, she says'' case
and that we cannot consider corroborating witnesses you cite.
What is it about the President's grand jury testimony that
convinces you he should be removed from office?
Mr. Manager McCOLLUM. Mr. Chief Justice, that question goes
to the heart of what we are here about today. We have had a
great deal of discussion about a lot of peripheral questions
and issues, but the fact of the matter is, the simplest portion
of this deals with grand jury perjury, and I assume the
question principally is directed to the first of four points
under the grand jury perjury article, because, for example, the
second point with respect to the President having the goal or
the intent of being truthful--which he said he did in the grand
jury in the Jones deposition--there isn't a ``he says, she
says'' question.
That is just very simple. The President lied multiple times
in that civil deposition, and if he said in the grand jury to
the grand jurors, ``My goal was to be truthful,'' it is pretty
self-evident that that was a lie and he perjured himself. So
that is not a ``he says, she says.''
But the question that the counsel over here has tried to
bring up several times, saying the part with respect
particularly to Monica Lewinsky saying that the President
touched her in certain parts of her body which would have been
covered by the Jones definition of sexual relations, and the
President who said explicitly in his grand jury testimony, ``I
didn't touch those parts,'' and, ``Yes, I agree that would have
been and is part of the definition of sexual relations in the
Jones case''--that is, whether you believe her or him, and they
say that is a ``he says, she says,'' and it is not.
But even if it were, you could listen to it and accept it.
I think there is some confusion about the law. The law of grand
jury perjury does not require two witnesses. Nor does it
require the corroborating testimony of anybody else. It does
not. That is why, in 1970, it was changed, and most
prosecutions today for perjury, including people who are in
Federal prison today for perjury in civil cases for lying about
matters related to sex--and there are several, a couple of whom
testified before us in the Judiciary Committee during our
process and hearings--are based upon that 1970 law that does
not require any corroboration.
In this case, you have Monica Lewinsky, who is a very
credible witness by other reasons, so that you don't even have
to get to those corroborating witnesses on those points. No. 1,
she was under immunity under the threat of prosecution when she
testified that way. No. 2, she has consistent statements
throughout, many times over. She didn't say she had sexual
intercourse with him. She could have made that up, but she
didn't. Everything she says is believable about that portion of
it. And third, and not last in all of this, is that she did
make very contemporaneous statements to at least six other
people who were her friends and counselors, describing in
detail exactly the same thing she testified to under oath
before the grand jury in this respect.
Now they say, the counselors here, you can't consider that
under the Federal Rules of Evidence because that is,
presumably, hearsay. Well, there are at least three exceptions
to that hearsay rule which could be brought out in a courtroom.
They have gone about trying to carefully say we have never said
that Monica Lewinsky lied.
I remember, I think it was Mr. Kendall or maybe it was Mr.
Craig up there a little earlier, saying when asked that
question, ``Did she lie in this instance or in any other?'' and
they say it is just a different version of the truth. If she is
saying it as explicitly as she is about this nine times or four
times or whatever, and the President is saying I never did
that, I don't see how they can fudge around, challenging her
truthfulness and credibility.
That is what they have been doing. And in any courtroom I
have ever been in, once that has occurred you can certainly
bring in her prior consistent statements, and you don't even
have to go with the rules of evidence on this. You are not
bound by those rules of evidence. And common sense says she had
no motive to be lying to her friends in those numerous
telephone conversations or her meetings with her counselors
when she described in detail these things the President says he
didn't do, because all of those statements occurred, all of
those discussions occurred before she ever was knowingly on a
witness list or likely to have to testify in any other way.
She is very credible. Those prior consistent statements are
very believable, and I submit to you they would be admissible
in a court in the kind of contest that would be involved in a
situation like this. It goes to the very heart of what we are
here about--grand jury perjury, the simplest, clearest one. The
President lied. Monica Lewinsky told the truth about it. And it
is profound and it is important and it is critical to this
case. And that is the principal one of the perjuries that we
have been drawing your attention to because it is so clear.
Thank you.
The CHIEF JUSTICE. This is a question from Senator Dorgan
to counsel for the President:
How can the House claim that its function is accusatory
only, when the articles it voted call for the President's
removal?
Mr. Counsel RUFF. This, of course, takes us back to the
very heart of the argument that raged for a small time here
yesterday and on previous days, the notion that the House of
Representatives viewed itself during the month of December as
merely--I won't even say that it rose in their mind to the
level of an accusatory body that we would think of when we
think of the grand jury, but to a body whose job it was, as one
of the managers said at one point, simply to find probable
cause to believe that the President had committed these acts.
Perhaps there has been some extraordinary transposition
from the mood and the tenor of the comments made during those
days when the Judiciary Committee was doing its work to the
days when these managers have appeared in the well of the
Senate, something that has transformed the mere probable cause
screening finding that they allegedly viewed as the role of the
House and the Judiciary Committee into the certainty that you
hear today.
It is a good question, as to how, then, given the role they
saw for themselves, they could go so far, not only to seek the
removal of the President but, indeed, to add in all their
prosecutorial vigor something that has never been sought
before, a bar against holding any future office, at the level
of certainty that they must have achieved given the standard
that they held themselves to. What happened between December 19
and today that allows these managers to come before you not
saying, ``Well, we were certain then and we're more certain
now,'' or ``We only found probable cause back in 1998, but in
1999 we are sufficiently certain that we ought to shut down the
public will as expressed in the elections of 1996.''
I haven't yet found an answer to that question.
The CHIEF JUSTICE. This question is from Senators Bond,
Brownback, Campbell, Hagel, Lugar, Hutchison of Texas, Roth and
Stevens. It is directed to the House managers:
After everything you have heard over the last several weeks
from the President's counsel, do you still believe that the
facts support the charges of obstruction of justice alleged in
the articles of impeachment? Specifically, what allegations of
improper conduct has the President's counsel failed to
undermine?
The question is also from Senators Specter and McConnell.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. First
of all, why is obstruction of justice important to begin with?
I think back on an opportunity I had at a hearing once to
question a member of the Colombian drug cartel. I asked him:
``What is the greatest weapon that law enforcement has that you
fear?''
His answer was very quickly, ``Extradition.''
I said, ``Explain. Why is extradition feared?''
He said, ``Because in Colombia, you can fix the system, but
in America you can't.''
That is why I think the obstruction of justice charge is so
important to the administration of justice. Money, position,
power does not corrupt, should not corrupt the administration
of justice.
The question is, Where has the President attacked,
counselors attacked credibly the allegations of obstruction?
The first one is that the President personally encouraged a
witness, Monica Lewinsky, to lie. This is on December 17 at 2
a.m. in the morning when the President calls Monica to tell her
that she is a witness on the list--2 a.m. in the morning. At
that time, of course, she is nervous, she is a witness and
asked, ``Well, what am I going to say?'' And the President
offers, according to Monica Lewinsky, you can always say you
came to see Betty or you came to deliver papers.
The President's counselor attacked this by saying, ``Well,
remember what Monica said, `I was never told to lie.' '' I
refer you to a Tenth Circuit case, United States v. Tranakos,
1990. The law is that the request to lie need not be a direct
statement. As the court held:
The statute prohibits elliptical suggestions as much as it
does direct commands.
That is common sense. That is logic. That is what a jury
applies--common sense. And here, of course, in this case,
Monica Lewinsky testified that she was told, in essence, to
lie. The President didn't say, ``Monica, I need you to go in
and lie for me.'' He told her the cover story in a legal
context that she could use that would cover for him that, in
essence, would be a lie. We all know that is what it is.
Of course, the President says--well, he denies that. Of
course, he said, I never told her to use the cover stories in a
legal context, directly in conflict, but clearly the
President's counselors have not attacked that obstruction of
justice.
The second one is the jobs and the false affidavit. They
say there is absolutely no connection in these two, none
whatsoever. Of course, I pointed out the testimony of Vernon
Jordan who testified it doesn't take an Einstein to know that
whenever he found out she was a witness, she was under
subpoena, that the subpoena changed the circumstances. That is
the testimony of Vernon Jordan. They say there is no
connection. Vernon Jordan, the President's friend, says the
circumstances change whenever you are talking about getting a
job with somebody who is also under subpoena in a case that is
very important to the President of the United States.
Of course, Vernon Jordan also indicated the President's
personal involvement when he testified before the grand jury in
June. He said he was interested in this matter: ``He''--
referring to the President--``was the source of it coming to my
attention in the first place.''
He further testified: ``The President asked me to get
Monica Lewinsky a job.''
The President was personally involved in the obtaining of a
job. He was personally concerned about the false affidavit, and
Vernon Jordan acknowledges that when those are combined, the
circumstances are different.
The third area of obstruction is tampering with the
witness, Betty Currie, on January 18 and January 20 when the
questions were posed after the deposition. The President's
counselor challenged this and said, well, she wasn't a witness.
Even the Jones lawyers never had any clue that she was going to
be a witness in this case. The President couldn't know that she
was going to be a witness.
They hoped that we would never find the subpoena, because
Mr. Ruff made that statement early on, which he very
professionally expressed regret that he made that
misrepresentation, but we found the subpoena. We found the
subpoena that was actually issued a few days after the
deposition for Betty Currie. She was a witness; she was not
just a prospective witness. She was there, she had to be ready
to go and the President knew this and the Jones lawyer knew it.
So that stands. The pillar of obstruction stands.
The false statements to the grand jury--that has been
covered. There have never been any holes that have been poked
into that, but it was to continue the coverup of the false
statements that were made in the civil rights case.
Another area of obstruction was December 28 when the gifts
were retrieved, and this has been challenged. I will admit, as
I always have, that there is a dispute in the testimony. But I
believe the case is made through the circumstances, the
motivation, the testimony of Monica Lewinsky as to what Betty
Currie said when she called and the corroborating evidence. I
don't believe they have poked a hole in that. I believe it
stands. We would like to hear the witnesses to make you feel
more comfortable in resolving that conflict and determine the
credibility of those witnesses.
But the gifts that were subpoenaed were evidence in a
trial; they were needed in a civil rights case. The President
knew they were under subpoena; he had the most to gain, and
they were retrieved. And I believe the testimony indicates that
it was based upon the actions of Betty Currie that would have
been directed by the President.
There are other areas of obstruction, including the
President allowing his attorney, Robert Bennett, to make false
representations to the Federal district judge in the
deposition. The President's defense is that there is no proof
whatsoever that he was paying any attention. We offered the
videotape that shows he is believed to be looking at the
attorney, but we would offer a witness in that regard to show
that he was attentive. That is simply something that can be
substantiated.
We believe that you can evaluate that, that he was paying
attention, but that is an element of obstruction because he was
allowing his attorney to make a false representation to the
court that was totally untrue, that would aid in the coverup
and that was presented.
The CHIEF JUSTICE. Mr. Hutchinson, I think you have
answered the question.
Mr. Manager HUTCHINSON. I thank the Chief Justice.
The CHIEF JUSTICE. This is a question from Senator Levin to
counsel for the White House:
In their brief to the Senate, the House managers said that
there was ``no urgency'' to help Ms. Lewinsky until December
11, 1997, and that on that day ``sudden interest was inspired''
by a court order, which the House managers had represented was
issued in the morning of December 11, before the Vernon Jordan/
Monica Lewinsky meeting that afternoon.
It took some doing yesterday to get the House managers to
finally acknowledge that the court order was not issued in the
morning, but in the afternoon of December 11. Why were the
House managers so reluctant to make that acknowledgment?
Mr. Counsel KENDALL. Mr. Chief Justice, well, I think they
were reluctant to make the acknowledgement because they were in
cement due to their trial brief, which at page 20, as the
question indicates, said, as to this particular time period
after the December 6 meeting, ``There was obviously''--there
was obviously--``still no urgency to help Ms. Lewinsky.'' They
thought that they had a chronology that was consistent with the
inference of causation. But when you look at the true time of
the events, that dissolves.
Now, Mr. Manager Hutchinson used a word repeatedly, a
phrase I would like to call your attention to, as he was
summarizing the evidence. He used the phrase: ``In essence.''
Now, that is another phrase that is kind of a weasel word. When
you hear that, it means that the evidence isn't really quite
there, but if you look at the big picture maybe you can see
what is there ``in essence.'' It doesn't work here. It doesn't
work because of the evidence.
Just a week ago, Mr. Manager Hutchinson, on this
obstruction of justice question, was asked very clearly: ``On
the case that you have against the President on obstruction of
justice, not the perjury, would you be confident of a
conviction in a criminal court?'' And he said, ``No, I would
not.''
Now, I am not going to walk through each and every element
that he identified. I think we have repeatedly dealt with them.
And I am not going to step on your patience to do that again
each time.
I would like to make two points. That is, in terms of
encouraging Ms. Lewinsky to lie, were these cover stories an
attempt to encourage her to lie? As I tried to indicate, there
is testimony in the record that at a certain time in the
relationship these cover stories were discussed. There is not
any evidence, however, from Ms. Lewinsky, the President, or
anyone else, that these were discussed in connection with the
testimony, in connection with the affidavit. You remember Ms.
Lewinsky, when asked if she could exclude that possibility,
said, ``I pretty much can.''
Now, the testimony that Mr. Hutchinson mentioned with Mr.
Jordan on December 19, you remember he quoted Mr. Jordan. He
said the discovery of the subpoena at that point changed the
circumstances. Well, it did, but just in the opposite way that
Mr. Manager Hutchinson would have you infer, because when Mr.
Jordan discovered, on December 19, that Ms. Lewinsky had a
subpoena, was going to testify in the Jones case as a witness,
unless she could get it quashed, he went to her and went to the
President to seek assurance that the job assistance he was
engaging in could not at any time be said to be improper
because of the presence of an improper relationship. Both
parties assured him there was no such relationship. This
observation by Mr. Jordan cuts just the opposite way.
Thank you.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Order Of Procedure
Mr. LOTT. Mr. Chief Justice, I do have another question I
will send to the desk momentarily, but I would like the
Senators to know that we have had some 104 or 105 questions now
that have been asked. I believe that is correct--104. Senator
Daschle and I conferred. We want to thank the Senators for
their participation and their questions. We do want to make it
clear we are not seeking questions.
[Laughter.]
So don't feel like you need to help us by sending them
down. But under your rights as Senators, under the Senate
Resolution 16 and the rules we are proceeding under, every and
each Senator is entitled to submit a question if he or she
feels it is important, but I hope that it will be one that you
think really is essential that has not been touched on
somewhere already in the answers to the questions and also
would hope--and that the Record be made clear--that we, in a
bipartisan way, have tried very hard to make sure that this
proceeding here and the question period, and all we have done,
has been fair both to the President's counsel and the House
managers. And we will continue to work in that vein.
With that observation, and if we do need to continue going
forward with questions, we would have to give some
consideration to taking a break and going longer, although I
had indicated I hoped we could quit at 4. Maybe after this
question and, if necessary, one or two more, we could end for
the day and then get together and see if we need more time on
Monday for additional questions.
I send the next question to the desk.
The CHIEF JUSTICE. This is a question from Senators
Cochran, Roth, Campbell and Frist to the House managers:
The President's counsel has suggested that the Senate has
considered a ``good behavior'' standard in impeachment cases
involving Federal judges. The removal of judges seems to have
been based by the Senate on the impeachment power whose
standard for removal is the same for both Federal judges and
executive branch officials. Is the counsel for the President
asking us to use a different test for removal of this President
than we did in the case of Judge Walter Nixon? Please explain.
Mr. Manager CANADY. Mr. Chief Justice, Members of the
Senate, I appreciate the opportunity to answer this question.
It is an important question. It is true that counsel for the
President are asking that you use a different standard in this
case than the standard you have already established, not in
just one case but, in fact, in a series of cases involving
Federal judges who were before the Senate in the 1980s. There
was a succession of three cases in the Senate, all dealing with
the question of whether a Federal judge who had lied under oath
should be removed from office because the Federal judge had
lied under oath. In all three cases, the Senate decided that
the Federal judge should be convicted and removed.
The President's counsel have the burden of establishing
that those recent and very clear precedents of the Senate
should not apply to this case where the President is charged
with lying under oath, and they attempt to do that in a number
of ways. But I suggest, as you evaluate their attempt to
distinguish away those precedents, that you look first and last
to the Constitution.
The Constitution should be your guide. And I suggest to you
that there is nothing in the Constitution which establishes a
different standard for the President--for any reason. There is
not something in the Constitution that says he is subject to a
different standard because he is elected. That argument had
been advanced. If you look in the Constitution, you simply will
not find that. And to argue for a different standard because
the President is elected, I submit to you, is to impose
something on the Constitution that is entirely alien to the
document itself.
The Constitution contains a single standard for the
application of the impeachment and removal power. I have read
it before, but I will read it again. Article II, section 4
provides:
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, reference was made in the question, and reference has
been made by the President's counsel, to the good behavior
clause. That is found in article III, section 1. That clause
does not alter the standard I have just read to you, however.
Rather than creating an altered standard for removal of Federal
judges, the good behavior clause merely establishes that the
term of office for judicial officers is life.
I wouldn't ask you to take my word for this. Let me refer
again to the 1974 report by the staff of the Nixon impeachment
inquiry. There they asked the question: ``Does Article III,
Section 1 of the Constitution, which states that judges `shall
hold their Offices during good Behaviour,' limit the relevance
of the . . . impeachments of judges with respect to
presidential impeachment standards as has been argued by
some?'' That is essentially the question before the Senate now.
Their answer was: ``It does not.'' It does not. ``. . . the
only impeachment provision''--they go on to say--``discussed in
the [Constitutional] Convention and [indeed] . . . in the
Constitution is Article II, Section 4, which by its expressed
terms, applies to all civil officers, including judges. . . .''
I would go on to note, it is very interesting that at the
Constitutional Convention, on August 27, 1787, an attempt was
made to amend the good behavior clause by adding a provision
for the removal of judges by the executive on the application
by the Senate and House of Representatives. Now, this proposal,
which was offered by John Dickinson, was based on the English
parliamentary practice of removal of judges by address, a
practice also utilized by several American States. And under
this process, judges could be removed for misconduct, falling
short of the level of seriousness that would justify
impeachment.
Now, the proposal offered by Dickinson was overwhelmingly
rejected. It was overwhelmingly rejected by the Convention.
Thus, the sole provision for removal and the sole standard for
removal is that which I have referred to in article II, section
4.
Now, mention has been made, and I want to respond to this,
because mention has been made of efforts of Congress to
establish a separate procedure for the removal of Federal
judges, a procedure separate and apart from the impeachment and
removal process.
Specific mention has also been made of testimony given in
1970 by the Chief Justice, who was then an assistant attorney
general, regarding a proposal to establish a separate removal
procedure. The testimony given by the Chief Justice at that
time related to the constitutionality of the provisions of the
bill relating to the removal of judges by methods other than
impeachment.
Now, my own view, quite candidly, is that such a removal
procedure raises serious constitutional questions--serious
questions about maintaining the independence of the judiciary.
Putting that question aside, and regardless of the standards
that might be applied in such a separate removal procedure, it
is clear that the single constitutional standard for
impeachment and removal would remain the same. That is what is
in the Constitution. That can't be changed by any statute or
anything set up apart from the constitutional procedures.
One thing I want to say as I move toward concluding my
response: It should be recognized that some specific acts might
be a breach of duty if done by a judge but not a breach of duty
if done by the President of the United States. That is an
important distinction that we all should bear in mind. For
example, it would be serious misconduct for a judge to engage
in repeated ex parte meetings with parties who have an interest
in a matter pending before that judge; but it is typical for
the President to engage in such ex parte meetings with persons
who have an interest in matters on which he will decide. For a
judge, such conduct constitutes a breach of duty; for the
President, it does not constitute a breach of duty.
The CHIEF JUSTICE. Mr. Canady, I think you have answered
the question.
This question from Senator Harkin is to counsel for the
President:
There are three contradictions in the record: One, who
touched whom on what parts of the body; two, when the
relationship began; three, who called whom to get the gifts,
Ms. Currie or Ms. Lewinsky.
How will these witnesses clear up the contradiction?
Mr. Counsel CRAIG. Mr. Chief Justice, Senator Harkin, it is
difficult for me to explain how, after you have gotten 19
interviews, 2 grand jury appearances, and 1 deposition to cover
that precise territory, any further kind of inquiry along those
lines would be of any help.
The House managers have argued that they need to call
witnesses for the purposes of resolving inconsistencies,
conflicts, and discrepancies in testimony. And they have, in
fact, identified Monica Lewinsky in particular as having given
testimony in conflict with the testimony of the President, with
Betty Currie and Vernon Jordan.
But it would be well to remember that the lawyers for the
Office of Independent Counsel certainly are not seeking to
elicit testimony that is favorable to the President, that those
lawyers have already done a great deal of this precise kind of
inquiry at some great length. Those lawyers--no friends of the
President--have already explored inconsistencies, they have
already tested memory, they have already laboriously and at
great length subjected these witnesses to searching scrutiny,
and their work is available for all to see in the record of
this case before the Senate today.
Let me be very specific and very concrete. Monica Lewinsky
was interviewed by the lawyers for the Office of Independent
Counsel or testified before the grand jury on 20 different
occasions after Betty Currie and Vernon Jordan had given their
testimony before the grand jury. And contrary to the assertions
of the House managers, Monica Lewinsky was interviewed six
times and testified twice--one time before the grand jury and
once in a sworn deposition after the President had given his
testimony before the grand jury on August 17.
On August 19, she was interviewed by the FBI and by lawyers
for the special counsel. She testified before the grand jury--
Ms. Lewinsky testified before the grand jury on August 20. She
was interviewed by lawyers and FBI agents for the independent
counsel on August 24. She was interviewed on August 26. She
appeared for a deposition held in the conference room of the
Office of Independent Counsel on August 26. She was interviewed
pursuant to her immunity agreement with independent counsel and
FBI agents on September 5. She was also interviewed--excuse me;
that was September 3. She appeared and listened to tapes with
the FBI present on many occasions during the period September 3
through September 6. She appeared and was interviewed by
special counsel, independent counsel, on September 7 and
September 5 and September 6.
So it raises a question as to whether or not the desire to
interview Monica Lewinsky stems from a desire to resolve
conflicts that she has with other people, because certainly
these occasions gave the lawyers for the independent counsel an
opportunity to do so.
I would simply submit that within the bounds of ethical
behavior, I am sure, because I respect the professionalism of
the House managers, but I would suspect that one of the reasons
they want to inquire of Ms. Lewinsky is not to resolve
discrepancies and disputes, it is to perhaps challenge her
testimony when it is helpful to the President and perhaps
bolster her testimony when it is not helpful to the President.
The House managers are not neutral investigators, neutral
interrogators.
It raises questions about what the managers' true purpose
is in calling Vernon Jordan and Betty Currie forward as
witnesses, what they want to inquire about if they conduct an
interview of them. I suggest that this is also a bit of a
fishing expedition, looking for evidence that will be damaging
to the President.
We are not afraid of witnesses, but we do want fairness,
and we don't think it is fair in this process. If you are going
to have a real trial, then we want to have a real defense, and
to have a real defense requires real discovery and real
opportunity to have access to documents and witnesses and
evidence that has been in the custody and the control of the
House of Representatives, that has never been made available to
us, that is in the custody and control of the Office of
Independent Counsel, that has not been made available to us.
I suggest, as we have seen from the statements made by the
managers to this body yesterday and today about Vernon Jordan
suggesting--actually suggesting that he did not tell the truth
when he testified numerous times before the grand jury, which
is an outrageous suggestion, and suggesting, which happened
today--implying that he destroyed evidence, which not even the
independent counsel had suggested, they seek to do nothing more
than to attack, attack, attack the best friend of the President
of the United States, and his personal secretary.
That is the reason they want to talk to these people. I
think it is an improper reason. It is wanting to win too much.
I don't think the U.S. Senate should be part of it.
The CHIEF JUSTICE. This question is from Senators Hagel,
Abraham, and Hatch to the House managers:
White House counsel has indicated their opposition to
calling witnesses, asserting that calling witnesses would not
shed light on the facts and would unnecessarily prolong the
proceedings. But it is the responsibility of the Senate to find
the truth. And if any Senators reasonably believe that hearing
witnesses would assist in finding the truth, why shouldn't they
be called?
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
``Methinks thou doth protest too much.'' I think that is
what White House counsel has been doing. I don't know why, but
they, frankly, don't want witnesses. They don't want what you
normally have in a trial. We can paint this with any kinds of
colors you want to have, but a trial without witnesses, when it
involves a criminal accusation, a criminal matter, is not a
true trial; it really isn't. It is not what I think of, and I
guarantee it is not what any of my friends sitting over here
who have been counsel, prosecutors and defense lawyers, think
of. It is remotely conceivable, but certainly not where you
have had the inferences and the conclusions that we draw
logically from the entire sequence of events that are painted
from the very day when the President got word of Monica
Lewinsky being on the witness list, and all the way through his
testimony in the Jones case, all the way through the grand jury
testimony, when they challenge every inference that you should
logically draw from the record, and then suggest that, oh, but
we should not have anybody in here; so you who are going to
judge ultimately whether our representations are persuasive or
not about those inferences, whether you should be able to
judge--and I think you should--what the witnesses actually are
saying.
I will give you one illustration. I don't know how many
times--two or three times--I put up here on the board, or I
have said to you--and I know a couple of my colleagues said to
you--that during the discussion with regard to the affidavit
that Monica Lewinsky had in front of the grand jury, she
explicitly said: No, the President didn't tell me to lie, but
he didn't discourage me either. He didn't encourage me or
discourage me.
You need to have her say that to you. They have even been
whacking away at that, confusing everything they can, talking
about the job searches at the same time they are talking about
the affidavit, what she said here, there, or anywhere else.
Witnesses are a logical thing. There are a lot of conflicts
that are here.
When we get to the point--which we presume we will get that
opportunity to do--to argue our case on why we should have
witnesses, maybe Monday or perhaps Tuesday--I think that even
though you have a motion to dismiss, we will get that chance--
we will lay out a lot of these things. There are a lot of them
out there. But the point is, overall, you need to have the
witnesses to judge what any trier of fact judges about any one
of these.
I would be happy to yield to Mr. Graham or Mr. Rogan if
they wish--neither one. That is fair enough.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Mr. Chief Justice, it now approaches the hour
that we had indicated we would conclude our work on Saturday.
There may still be some questions that Senators would like to
have offered. I have talked to Senator Daschle.
One suggestion made is that maybe on Monday we would ask
that questions could be submitted for the Record in writing. I
think that is a common practice. We don't want to cut it off.
At this point, I would not be prepared to do that. But I would
like to suggest that we go ahead and conclude our business
today, and if there is a need by a Senator on either side to
have another question, or two or three, we will certainly
consult with each other and see how we can handle that, perhaps
on Monday, and even see if it would be appropriate to prepare a
motion with regard to being able to submit questions for the
Record, which would be answered. We would not want to abuse
that and cause that to be a protracted process.
In view of the time spent here--in fact, we have had around
106 questions, and we are about 10 hours into this now--I think
we should conclude for this Saturday. We will resume at 1 p.m.
on Monday and continue in accordance with the provisions of S.
Res. 16. I will update all Members as to the specific schedule
when it becomes clear.
Unanimous Consent Agreement
Mr. LOTT. I ask unanimous consent that in the Record
following today's proceedings there appear a period of morning
business to accommodate bills and statements that have been
submitted during the day by Senators. I thank my colleagues for
their attentiveness during the proceedings.
The CHIEF JUSTICE. Without objection, it is so ordered.
------
ADJOURNMENT UNTIL 1 P.M. MONDAY, JANUARY 25, 1999
Mr. LOTT. Mr. Chief Justice, I ask that the Senate stand in
adjournment under the previous order.
Mr. HARKIN. I object.
Mr. LOTT. Mr. Chief Justice, I move that the Senate stand
in adjournment under the previous order.
Mr. HARKIN. Mr. Chief Justice, I seek recognition.
The CHIEF JUSTICE. The question is on the motion to
adjourn.
The motion was agreed to and, at 3:55 p.m., the Senate,
sitting as a Court of Impeachment adjourned until Monday,
January 25, 1999, at 1 p.m.
Monday, January 25, 1999
[From the Congressional Record]
The Senate met at 1:04 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Dear God, we are moved by Your accessibility to us and our
accountability to You. We hear Your promise sounding in our
souls, ``Be not afraid, I am with you.'' We place our trust in
Your problem-solving power, Your conflict-resolving presence,
and Your anxiety-dissolving peace. So we report in to You for
duty. What You desire, You inspire. What You guide, You
provide.
This is Your Nation; we are here to serve You. Just as
Daniel Webster said that the greatest conviction of his life
was that he was accountable to You, we press on with a
heightened awareness that You are the unseen Lord of this
Chamber, the silent Listener to every word that is spoken, and
the Judge of our deliberations and decisions.
Bless the Senators with the assurance that Your work, done
with total trust in You and respect for each other, will not
lack Your resources. Surpass any impasse with divinely inspired
solutions. You are our Lord and Saviour. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Pursuant to the provisions of Senate Resolution 16, there
are 6 hours 33 minutes remaining during which Senators may
submit questions in writing directed to either the managers, on
the part of the House of Representatives, or the counsel for
the President.
The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice.
order of procedure
Mr. LOTT. As is obvious by the absence of the managers and
counsel, and a number of the Senators, the two parties are
still meeting in conference at this time. I believe we are
close to reaching an agreement which would outline today's
impeachment proceedings. It will probably be an hour or so
before we can complete that because we need to explain it in
detail to our respective conferences, and also make sure that
we reduce it to writing so we understand exactly what we are
agreeing to.
I will in a moment ask that the Senate stand in recess
until 2 p.m. I apologize for any inconvenience to Senators and
the Chief Justice. But I think that what we are discussing in
the long run would save some time and lead us to a fair
procedure through the balance of the day and how we begin
tomorrow.
recess
Therefore, I now ask unanimous consent that the Senate
stand in recess until 2 p.m.
Mr. GREGG. Mr. Chief Justice, reserving the right to
object----
The CHIEF JUSTICE. The Senator from New Hampshire.
Mr. GREGG. Mr. Chief Justice, I have a parliamentary
inquiry that I would like to share.
The CHIEF JUSTICE. The Parliamentarian says it takes
unanimous consent.
Mr. GREGG. I ask unanimous consent to----
Mr. LEAHY. Reserving the right to object, I believe that if
it is going to be made, Mr. Chief Justice, if it requires
unanimous consent, that it would be wise if it can be done at a
time when both leaders are on the floor.
Mr. GREGG. I withdraw the unanimous consent.
There being no objection, at 1:08 p.m., the Senate recessed
until 2:06 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, it is my understanding that
the question and answer period is now completed. In a moment I
will propound a unanimous consent agreement that will outline
the next steps in this process.
unanimous-consent agreement
Mr. LOTT. In the meantime, I would ask unanimous consent
that Senators be allowed to submit statements and introduce
legislation at the desk today. I further ask unanimous consent
that when the Senate completes its business today, it stand in
adjournment until 1 p.m. on Tuesday to resume the articles of
impeachment.
The CHIEF JUSTICE. Without objection, it is so ordered.
Ms. MIKULSKI. Reserving the right to object, I note that
the Democratic leader is not in the Chamber.
May I inquire, has this been cleared?
Mr. LOTT. I just want to observe, Mr. Chief Justice, that
there are still some discussions underway. You will note that
Senator Daschle is not here, and unless there is objection to
what I just did, I am prepared to note the absence of a quorum
so that we can have time for Senators to return to the Chamber.
Ms. MIKULSKI. Point of clarification for the majority
leader. Did the Senator say that we would come in tomorrow at 1
p.m.?
Mr. LOTT. I did. If I might respond, Mr. Chief Justice,
there had been some discussion about coming in earlier, but
because of a number of conflicts, I understand, from the House
managers and concerns that we would need that time to continue
to have discussions, we thought we would go ahead and come in
at 1. But let me add that if during the process of the day
there is a decision that we need to change that to either
earlier or later, we could revise that request. This is just to
move the process forward, as we have announced each day we
would come in at 1 except on Saturday. But if there is a need
to change the time, we will certainly be prepared to consider
that request.
Ms. MIKULSKI. Mr. Chief Justice, I thank the majority
leader.
Mr. LOTT. Mr. Chief Justice, I suggest the absence of a
quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I had earlier asked a couple
of unanimous consent requests, but the Democratic leader was
not on the floor, and it was not officially objected to or
officially ruled as not having been objected to. So I am going
to assume that is all null and void, and we are going to start
over again.
The CHIEF JUSTICE. The requests are withdrawn.
Mr. LOTT. Now, to repeat what we had earlier discussed and
to make sure Members understand it, it is our understanding and
our agreement that the question and answer period is now
completed.
order for submission of statements and introduction of legislation
Mr. LOTT. I ask unanimous consent that Senators be allowed
to submit statements and introduce legislation at the desk
today.
The CHIEF JUSTICE. Without objection, it is so ordered.
order of procedure
Mr. LOTT. With regard to the time that will be involved
today and the time that we will come in on Tuesday, we will
have further discussions on that, and we will have a consent
request on that later in the day or at the close of business.
Now I have a unanimous-consent request that will allow us
to have a clear understanding and an orderly procedure for the
balance of the day. I have discussed this with my counterpart
on the other side of the aisle, both conferences have had a
chance to talk about it, and I think it is a fair way to
proceed, where we would have a chance to discuss the issues
that are before us and get us to a conclusion of this part of
the impeachment proceedings in a logical way.
unanimous-consent request
Mr. LOTT. First, Mr. Chief Justice, I ask unanimous consent
that today, following the conclusion of the arguments by the
managers and the counsel on the motion to dismiss--and I note
that the next order of business is 2 hours equally divided, 1
hour on each side, on a motion to dismiss when and if it is
filed by any Senator--it be in order for Senator Harkin to make
a motion to open all debate pursuant to his motion timely filed
and that the Senate proceed immediately to the vote pursuant to
the impeachment rules.
I further ask that following that vote, if defeated, it be
in order to move to close the session for deliberations on the
motion to dismiss, as provided under the impeachment rules, and
the Senate proceed to an immediate vote.
I further ask that if the Senate votes to proceed to closed
session, those deliberations must conclude by the close of
business today, notwithstanding the 10-minute rule allocated
under the impeachment rule.
The CHIEF JUSTICE. Is there objection?
Mr. HARKIN. I object.
Mr. FEINGOLD addressed the Chair.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. HARKIN. Reserving the right to object.
Mr. LOTT. Mr. Chief Justice, does he reserve the right to
object or did he object?
The CHIEF JUSTICE. The Parliamentarian tells me the Senator
does not have the right to reserve the right to object.
Mr. FEINGOLD addressed the Chair.
Mr. HARKIN. I just have a modification that I would like to
discuss with the leader, a brief modification of that, that
would not engender an objection.
Mr. LOTT. Mr. Chief Justice, so we can proceed with this in
an appropriate manner, I suggest the absence of a quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
unanimous-consent agreement
Mr. LOTT. Mr. Chief Justice, I renew my request as
previously outlined, with one change; that is, that it say in
the first sentence ``unanimous consent that following the
conclusion of the arguments by the managers and the counsel
today on the motion to dismiss, that it be in order for Senator
Harkin to make a motion to open that debate.'' Instead of
``all,'' the word is ``that'' debate.
With that and no other changes, I renew that request.
Mr. HARKIN. Mr. Chief Justice, I reserve the right to
object.
OK, I don't have any----
Mr. LOTT. The reservation is withdrawn, I believe.
Mr. FEINGOLD. Mr. Chief Justice, I object.
The CHIEF JUSTICE. Objection is heard.
Mr. FEINGOLD addressed the Chair.
Mr. LOTT. Mr. Chief Justice, I suggest the absence of a
quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, welcome to the operations of
the U.S. Senate.
I ask unanimous consent that the order for the quorum call
be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, was the unanimous consent
agreement agreed to?
The CHIEF JUSTICE. Not yet.
Mr. LOTT. I renew my request.
Mr. FEINGOLD addressed the Chair.
The CHIEF JUSTICE. Objection is heard.
Mr. FEINGOLD. Mr. Chief Justice, I and Senator Collins, the
junior Senator from Maine, ask unanimous consent that when the
Senate considers the anticipated motion to dismiss, that it
shall vote on two separate questions: First, whether to dismiss
article I of the articles of impeachment; and, second, whether
to dismiss article II.
Mr. GRAMM. I object.
The CHIEF JUSTICE. There is a pending request for unanimous
consent by the majority leader, who has not surrendered the
floor.
Mr. LOTT. Under his reservation, if the Senator would yield
to me, I believe if we can get this agreed to, he can make his
request and then it can be ruled on.
Mr. Chief Justice, I yield the floor if the Senator would
like to proceed in that fashion.
I renew my request, again, for the unanimous consent as
outlined earlier.
The CHIEF JUSTICE. Is there objection? In the absence of an
objection, it is so ordered.
Mr. FEINGOLD. Mr. Chief Justice, I renew my request, along
with the junior Senator from Maine--the unanimous consent
request that when the Senate proceeds to vote on the
anticipated motion to dismiss, that the question be divided
into a separate vote on article I of the articles of
impeachment, and then a separate vote on article II of the
articles of impeachment.
Mr. GRAMM. I object.
The CHIEF JUSTICE. Objection is heard.
Mr. LOTT. Mr. Chief Justice, now, if I could, I will
outline the result of our efforts there. I thank Senator
Daschle and my colleagues on his side of the aisle and this
side of the aisle for trying to come up with a process that is
fair and that would give us an opportunity today to debate this
important issue. It is never easy to get 100 Senators to agree
on a method to proceed, so I think this was a good
accomplishment. I thank one and all.
I understand that now Senator Byrd will offer the motion to
dismiss. For the information of all Members, once that motion
is offered, there will then be 2 hours for debate. The House
managers will be recognized to open the debate, and following
that will be the White House arguments. Then the House managers
will be recognized again for closing remarks. At that point,
the consent agreement would apply.
I anticipate taking our first break at the conclusion of
the first 2 hours of arguments by the managers and White House
counsel, unless there is an urgent need to do so earlier. Then
we will go forward with this agreement, which will require a
vote on the Harkin motion to open the debate, the vote on the
amendment to close debate on the motion to dismiss, and then
the debate which would go on, the 10-minute rule
notwithstanding, until the close of business today.
I yield the floor.
Mr. BYRD addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
West Virginia.
motion to dismiss
Mr. BYRD. Mr. Chief Justice, I send a motion in writing to
the desk.
The CHIEF JUSTICE. The clerk will read the motion.
The legislative clerk read as follows:
The Senator from West Virginia, Mr. Byrd, moves that the
impeachment proceedings against William Jefferson Clinton,
President of the United States, be, and the same are, duly
dismissed.
The CHIEF JUSTICE. Pursuant to Rule XXI of the Senate Rules
on Impeachment, the managers on the part of the House of
Representatives and the counsel for the President each have up
to 1 hour to argue the motion.
The Chair recognizes the House managers.
Mr. Manager CANADY. Mr. Chief Justice, Members of the
Senate, on behalf of the House of Representatives, I rise to
speak in opposition to the motion to dismiss. During the hour
allotted to the managers, I will offer a few introductory
comments concerning why adoption of the motion would be
inconsistent with constitutional standards and harmful to the
institutions of our Government. Mr. Hutchinson, Mr. Graham, and
Mr. Gekas will present arguments concerning the facts and the
law, and then Mr. Hyde will close.
At the outset, I must urge you to consider the fact that
this motion to dismiss is without precedent. The Senate has
never--not once in the more than 200-year history of our
Constitution--dismissed a proceeding against an official who
remained in office after impeachment by the House of
Representatives. I humbly urge you not to depart from the
Senate's well-established practice of fully considering cases
of impeachment and rendering a judgment of either conviction or
acquittal.
In the midst of the great differences between the
President's counsel and the House managers, there actually is
at least a little common ground. Both sides agree that the
impeachment and removal power is designed to protect the well-
being of the institutions of our Government. But there is a
critical difference that divides us, as is obvious from the
argument that has gone before.
The managers have argued that this power--the power of
impeachment and removal--is a positive power granted by the
Constitution to maintain the integrity of Government, a power
to preserve, protect, and strengthen our constitutional system
against the misconduct of officials that would subvert,
undermine, or weaken the institutions of our Government.
The President's lawyers, on the other hand, advance a much
narrower view of the role of the impeachment power in
protecting our institutions. Their case rests on the argument
that it is a power to be used only in response to conduct
threatening devastating harm to the system of Government--at
least when it is used against a President.
But I submit to you that Alexander Hamilton did not
contemplate that the impeachment process would be so restricted
when he spoke of it as a ``method of national inquest into the
conduct of public men.'' And James Iredell did not have such a
narrow view in mind when he spoke of the accountability through
impeachment of anyone who ``willfully abuses his trust.''
Iredell did not have such a limited view when he spoke of the
impeachment of a President who, as he said, ``acted from some
corrupt motive or other.''
Under the standards urged by the President's lawyers, the
misdeeds of Richard Nixon would not be the threshold for
impeachment and removal. What he did was corrupt. The legal
rights of citizens were treated with contempt. President Nixon
showed an egregious lack of respect for the law. But all these
misdeeds did not threaten the sort of ruinous harm to the
system of Government that the President's lawyers argue would
be required to justify conviction and removal. After all, the
core charges against President Nixon related to the coverup of
a third-rate burglary.
Members of the Senate, as you consider the motion to
dismiss, I ask you to pause and reflect on the consequences of
the standard advocated by the President's lawyers. Consider the
consequences for the system of justice of allowing the
President's dangerous example of lawlessness to stand. Consider
the consequences for the Presidency itself.
I respectfully submit to you that the standard advocated by
President Clinton's lawyers will debase and degrade the
institution of the Presidency. I know that is not the intention
of the President's lawyers, but it is the necessary consequence
of their position.
Only 42 men have held the office of President of the United
States. Some of them have been ordinary men of limited talent.
A handful of our Presidents have been great men. Most have been
capable men who brought special skills to the office. No matter
what our individual judgments may be concerning President
Clinton, it is clear that he is one of the most intellectually
gifted and politically skilled men to hold the office of
President.
He was raised to this great eminence--the most powerful
office in the greatest Nation in the history of the world--an
unparalleled opportunity, honor and privilege. And in this
position of eminence and honor, and in this position of trust,
what did he do? He made a series of choices that has brought us
to this day. He made the choice to violate the law--and he made
that choice repeatedly. He knew what he was doing. He reflected
on it. Perhaps he struggled with his conscience. But when the
time came to decide, he deliberately and willfully chose to
violate the laws of this land. He chose to turn his back on the
very law he was sworn to uphold. He chose to turn his back on
his solemn oath of office. He chose to turn his back on his
constitutional duty.
As you deliberate on this motion, I ask you to consider
what William Jefferson Clinton has done to the integrity of the
great office he holds as a trust. I ask you to consider the
harm he has caused, the indignity he has brought to the
institution of the Presidency.
Some have asked of us, ``Where is the compassion and where
is the spirit of forgiveness?'' Let me say that I, for one,
believe in forgiveness. Without forgiveness, what hope would
there be for any of us? But forgiveness requires repentance; it
requires contrition. And so I must ask, where is the
repentance? Where is the contrition?
It is true that the President has expressed regret for his
personal misconduct. But he has never--he has never--accepted
responsibility for breaking the law. He has never taken that
essential step, as the argument advanced so vigorously by his
counsel makes clear. He has refused to accept responsibility
for breaking the law. He has stubbornly resisted any effort to
be held accountable for his violations of the law, for his
violations of his constitutional oath, and his violation of his
duty as President. To this day, he remains adamantly
unrepentant. And, of course, under our system of justice, even
sincere repentance, which is so lacking here, does not
eliminate all accountability.
In the discussion thus far, the debate has brought the
concept of proportionality to the fore from time to time. You
have been urged to reject your own precedents--the clear
precedents establishing that crimes such as lying under oath
justify conviction and removal. The principle of
proportionality, it has been urged, requires that the rule you
have applied to Federal judges not be applied to the President
of the United States.
I will be the first to concede that removing a President of
the United States is, without doubt, a more momentous decision
than removing one of the hundreds of Federal judges who hold
office in this country. When the Chief Executive is removed,
the gravity of the matter undeniably reaches a higher level.
But it is also true--and it must not be forgotten--that when
the President engages in a calculated and sustained course of
conduct involving obstruction of justice and perjury, the
gravity of the consequences for the Nation also reaches a far
higher level. Such lawless conduct by the President does
immeasurably more to subvert public respect for the law than
does the misconduct of any Federal judge or any other Federal
official.
As has been pointed out more than once, the Constitution
contains a single standard for impeachment and removal of all
civil officers; there is not one standard for the President and
another standard for everyone else. There is nothing in the
Constitution that requires you--or allows you--to set a lower
standard of integrity for the President than the standard you
have set for other officials who have been convicted and
removed by your solemn action.
Although they can point to nothing in the Constitution, the
President's lawyers assert that the President is simply
different because he is elected. So let me say this. The Senate
itself has established a standard of integrity for its own
elected Members that President Clinton could not meet. As
recently as 1995, an elected Senator resigned under imminent
threat of expulsion for offenses that included acts similar to
the acts of obstruction of justice committed by President
Clinton.
Senator Robert Packwood was elected, yet he was on his way
to certain expulsion. Listen to what the Senate Select
Committee on Ethics had to say about Senator Packwood's
conduct. He was guilty, the committee found, of:
. . . withholding, altering and destroying relevant evidence .
. . conduct which is expressly prohibited by 18 United States
Code, section 1505. . . . Senator Packwood's illegal acts
constitute a violation of his duty of trust to the Senate and
an abuse of his position as a United States Senator, reflecting
discredit upon the United States Senate.
The statute referred to by the committee in the Packwood
case is closely analogous to the obstruction of justice statute
the President has violated. Senator Packwood unlawfully sought
to impede the discovery of evidence. President Clinton has done
the same thing. For his violation of the law, Senator Packwood,
an elected Senator, was judged worthy of expulsion from the
Senate.
But the President's lawyers argue the President should be
held to a lower standard of integrity than the standard you
have set for yourselves as Members of the Senate. According to
them, the Constitution establishes a lower standard of
integrity for the President than the standard for Senators, a
lower standard than the standard for Federal judges, and a
lower standard than the standard for members of the Armed
Forces of the United States.
Ladies and gentlemen of the Senate, I submit to you that
the President's lawyers, honorable as they are, are simply
wrong. They advocate an arbitrary standard that would insulate
the President from the proper accountability for his misconduct
under our Constitution. Our Constitution does not establish a
lower standard of integrity for the President of the United
States.
The Senate, I respectfully submit to you, should follow the
well established precedents. The Senate should reject the
motion to dismiss.
The CHIEF JUSTICE. The Chair recognizes Mr. Hutchinson.
Mr. Manager HUTCHINSON. Mr. Chief Justice, how much time
has expired?
The CHIEF JUSTICE. Twelve minutes.
Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and
gentlemen of the Senate, in my former life, when I tried cases,
the defense counsel would routinely offer a motion to dismiss,
and my clients would always ask me how they could argue to
dismiss a case before we had a chance to put on our evidence. I
would always explain that there was more than sufficient
evidence to get this case to a jury and they didn't have to
worry.
We all know that granting a motion to dismiss is a weapon
that is rarely used in court. It is a severe remedy that cuts
off an individual's right to seek justice in court. For that
reason, a motion to dismiss must fail if there is any
substantial evidence to support the case. In addition, as you
evaluate evidence under a motion to dismiss, the facts are to
be considered in a way that is most favorable to the
respondent--in this case the House managers.
For example, if there is a dispute between the testimony of
Ms. Lewinsky and the President in consideration of this, I
would urge you to--and believe that under proper rules you
should--consider that in the favor of the theory of the
articles of impeachment.
It has been explained to me many times that standard
courtroom rules do not apply in the U.S. Senate. But, still,
granting a motion to dismiss by the Senate has the same
effect--to cut short the trial and avoid the development of the
facts--as it would in any State court case. In this case of
impeachment, the House of Representatives found that there was
substantial evidence to support these articles. And the Senate
should not summarily dismiss the charges.
I might add that, despite Mr. Ruff's references, the House
standard for the articles of impeachment was not simply
probable cause. My colleagues on the Judiciary Committee looked
at a much higher standard of clear and convincing evidence.
But, coming back to the Senate, to dismiss the case would
be unprecedented from a historical standpoint, because it has
never been done before; it would be damaging to the
Constitution, because the Senate would fail to try the case; it
would be harmful to the body politic, because there is no
resolution of the issues of the case; but, most importantly, it
would show willful blindness to the evidentiary record that has
thus far been presented.
An appropriate question, you might ask, is: How should you
decide whether this motion should be granted? I would contend
that you should decide this issue based upon the facts that you
have before you in the record and not on any other criteria. A
motion to dismiss should not be granted because you do not
think there are presently enough votes for conviction.
Let me assure you that I want this over. As Bruce Lindsey,
sitting over here, will probably attest, this is bad for me
politically. I am from Arkansas, the State Bill Clinton
dominated politically for years, and certainly its most
influential politician. But we do have our responsibilities,
and I happen to believe that we should follow the process which
is dictated by the Constitution and the facts.
I know I am making legal arguments to this Court of
Impeachment, in which I understand you make your own rules, and
I respect that. But, as opposing counsel pointed out on many
occasions, there are reasons for these rules of procedure and
they have relevance to your deliberations today. Again, your
decision should be based upon the facts, and so let's discuss
the facts.
Does the record support the charges of obstruction of
justice and perjury? To look at this from a different angle,
because we talked about it at length, let's examine how the
President responded to critical developments in the Federal
civil rights case in which he was a defendant.
First, how did he handle those people he knew to be
witnesses? The President did not want them to testify, and, if
they did testify, he did not want them to testify truthfully.
Two of those witnesses were Monica Lewinsky and Betty Currie.
Clearly, he did not want them to testify in the Federal
civil rights case and, likewise, his lawyers today do not want
those witnesses to testify before this body.
Now, let's look at what happened when the President learned
that Monica Lewinsky was on the witness list. Very quickly, it
was December 5 that the witness list came in. He learned about
it probably the next day, December 6. Monica Lewinsky visited
with him and said Vernon Jordan was not doing very much on the
job front. The President's response is, okay, I will talk to
him. I will get on it.
Now, Ms. Lewinsky assumed that was a brushoff, but he was
serious about it because he later learned that day that at the
latest--he learned later that day that Monica was on the
witness list when he met with the lawyers.
After that, the next day, he meets with Vernon Jordan at
the White House. And even though Mr. Jordan says he thinks it
was unlikely that the job situation was discussed, Mr. Jordan
makes it clear that he ultimately went to work to get Ms.
Lewinsky a job at the direction of the President. According to
Mr. Jordan's grand jury testimony on June 9, he testified,
``The President asked me to get Monica Lewinsky a job.'' That
is undisputed. He had testified to the same grand jury, ``He,''
referring to the President, ``is the source of it coming to my
attention in the first place.''
And so as the result of the President's request, Vernon
Jordan got to work, met with Ms. Lewinsky, assisted her in
securing key job interviews, and kept the President informed.
The job search became critical when she was put on the witness
list on December 5, and the December 11 order of Judge Wright
served to reinforce the urgency of the matter.
Now, all of this was happening when the President knew she
was a witness in the civil rights case, but the individuals
affected by the President's unlawful scheme of obstruction may
not have been privy to his plans. He kept Ms. Lewinsky in the
dark about her being a witness until he had the job search well
underway. And Mr. Jordan indicates that he was simply trying to
get Ms. Lewinsky a job at the direction of the President
without any clue that she was a witness until she got the
subpoena on December 19.
Now, the President kept his information about Ms. Lewinsky
being on the list away from her until he called her at 2 a.m.
in the morning on December 17 to let her know the news.
So how does the President handle witnesses in the judicial
system that are a danger to him? He wanted to make sure that
they were taken care of and cooperative in concealing the truth
from the courts.
The next critical step for the President to assure that Ms.
Lewinsky sticks with her predesigned cover stories was that she
would not deviate from that even though they were now in the
court system. Vernon Jordan testified in the grand jury that
``it didn't take an Einstein to know when she was under
subpoena the circumstances changed,'' and, of course, that is
clear.
When Ms. Lewinsky was placed on the witness list, the truth
became a threat to the President. He tried to avoid the truth
at all costs and was willing to obstruct the legal processes of
the judicial system in order to protect himself. The
obstruction started with the job favors and then continued
through the December 17 conversation with the President when
the President encouraged her to keep using the cover stories
even though she would be under oath as a witness, encouraged
her to sign a false affidavit, and then on December 28,
according to the testimony of Ms. Lewinsky, the President sent
Betty Currie to retrieve items of evidence for the purpose of
concealment and with the obvious effect of obstructing the
truth.
Despite the concerted effort of the President in keeping
Monica Lewinsky from being a truthful witness, the President
was not yet home free. He still had to go through the hurdle of
his own deposition on January 17. And even though he knew there
were going to be questions about Monica Lewinsky, he was
hopeful that the false affidavit, the representations of his
attorney, Robert Bennett, and the President's own affirmation
of the false affidavit would be sufficient to prevent
questioning about Ms. Lewinsky. But it didn't work. Despite
this effort, the Federal district court judge ordered the
President to respond to the questions. At that point he had a
choice. He could tell the truth under oath, or he could provide
false statements. He chose the latter, and that decision forced
a continued pattern of obstruction.
During the deposition, he asserted the name of Betty Currie
at least six times, and by doing so he dared the plaintiff's
lawyers to question Ms. Currie as a witness. They knew it, and
he knew it. When the Jones lawyers returned from the
deposition, they immediately set about issuing a subpoena for
Betty Currie. And what did the President do? He immediately set
about attempting to assure that Betty Currie would not state
the truth when called as a witness.
They defended that she wasn't a witness, she wasn't a
prospective witness, but yet we produced the subpoena that she
was a prospective witness, and they wanted her to testify, and
everyone knew it. The President called her at home, arranged
for her to come in the next day, and put her through the
questioning: He was never alone with Monica, trying to
establish that; that Monica was the aggressor and that the
President did nothing wrong. That is what he was trying to
accomplish through his questioning of Betty Currie.
Can you imagine how uncomfortable Betty Currie was, must
have felt on that occasion, being called in to see her boss,
then having the President recreate a fictional account in order
to prevent the truth from coming out in a court of law? But
once was not enough, and 2 days later Ms. Betty Currie was
brought in for the same series of questions. The message was
clear. You have to cover for the President even though the
purpose was unlawful.
And so we see a pattern developing. When it comes to a
witness, whether it is Monica Lewinsky or Betty Currie, the
choice is made. The President encouraged the witness to lie,
and the President chose to impede the administration of justice
rather than assuring that the laws be faithfully executed.
But the President had one final choice, and that was in his
grand jury testimony in August. At this point, the
embarrassment of the relationship was public, and that could no
longer serve as an excuse not to tell the truth. But, once
again, the President chose not to abide by his oath but to
evade the truth and provide false statements; not to protect
his family, not to preserve the dignity of the Presidency, but
to prevent the grand jury from knowing the truth in their
investigation and to continue the coverup began during the
truth-seeking process in the civil rights case.
I do not have time to cover all the facts, but they are
more than substantial, they are compelling, and they are
convicting.
Let me leave you with some questions. First of all, who
asked Vernon Jordan to get Monica Lewinsky a job? The answer?
It was the President.
Secondly, who suggested that Monica Lewinsky sign an
affidavit to avoid testifying in the civil rights case, which
by its nature had to be false? The answer? It was the
President. Who obstructed the truth when Monica Lewinsky was
subpoenaed as a witness? It was the President. Who impeded the
gathering of evidence when the Federal court subpoena called
for the production of gifts? The answer? It was the President.
Who tampered with the testimony of Betty Currie when it was
clear she was a witness in the case? It was the President. Who
took an oath and failed to tell the truth before the courts of
our land? It was the President.
I state these facts with sadness, but these facts are true.
The motion should be defeated.
I thank the Senate. On behalf of the managers, Mr. Chief
Justice, I reserve the remainder of the time.
The CHIEF JUSTICE. Very well. The Chair recognizes counsel
for the President.
Ms. Counsel SELIGMAN. Mr. Chief Justice, ladies and
gentlemen of the Senate, distinguished House managers, good
afternoon. My name is Nicole Seligman. I am a member of the law
firm of Williams & Connolly here in Washington, DC. I have been
privileged to represent President Clinton as personal counsel
since 1994.
I am honored to stand before you today to argue in support
of the motion to dismiss the impeachment proceedings that has
been offered by the senior Senator from West Virginia, Senator
Byrd.
The Constitution reposes in this body and nowhere else the
sole authority to try impeachments. It has placed in your hands
alone the decision whether to dismiss now or to go forward.
There is no judicial review. There is no judicial guidance
other than that which each of you, in your wisdom, may choose
to apply by analogy from judicial experience. There are no
particular rules of civil or criminal procedure that you must
follow. The Constitution has freed you from that. It has wisely
placed in your hands alone the ability to make a sound judgment
in the manner you think best for the reasons you think best,
based on your wisdom and experience, as to what is best for
this Nation at this moment in the proceedings.
We submit to you that the moment has arrived where the best
interests of the Nation, the wise prescription of the framers,
and the failure of the managers' proof, all point to dismissal.
You have listened. You have heard. The case cannot be made. It
is time to end it.
Without presuming to infringe on the constitutional
authority that is yours alone, and without repeating at undue
length the arguments that you heard over the past few weeks, I
do want to set out briefly the reasons that we believe to be
some of the grounds on which an early and fair disposition of
this difficult matter might rest. There are at least four such
grounds. Each one stands by itself as sufficient reason to vote
for the motion of Senator Byrd.
The first ground is the core constitutional issue before
you, the failure of the articles to charge impeachable
offenses. They do not do so. They do not allege conduct that,
if proven, violated the public trust in the manner the framers
intended when they wrote the words ``treason, bribery, or other
high crimes and misdemeanors.'' For absent an element of
immediate danger to the state, a danger of such magnitude that
it cannot await resolution by the electorate in the normal
cycle, the framers intended restraint. There is no such danger
to the state here. No one has made that claim, or could, or
would. A vote for the motion is a vote for constitutional
stability.
Impeachment was never meant to be just another weapon in
the arsenal of partisanship. By definition, a partisan split
like that which accompanied these articles from the House of
Representatives creates doubt that makes plain a constitutional
error of the course that we are on. As Senator William Pitt
Fessenden wrote 130 years ago on a great and decisive
historical occasion, the impeachment trial of Andrew Johnson:
Conviction upon impeachment should be free from the taint
of party and leave no ground for suspicion upon the motives of
those who inflict the penalty.
His words echoed those of Alexander Hamilton who, in the
much quoted Federalist 65, had warned, in his words, of ``the
greatest danger that the decision''--that is the decision by
the Senate--``will be regulated more by the comparative
strength of the parties than by the real demonstrations of
innocence or guilt.''
Now, Mr. Manager Graham has candidly acknowledged that
reasonable people could disagree about the propriety of
removal. He said they absolutely could. We suggest to you that
there can be no removal when even the prosecutor agrees that
such reasonable doubts exist. If reasonable people can
disagree, we suggest to you that reasonable Senators should
dismiss. The constitutional standard for impeachment is not met
here.
The second and third grounds we offer to you relate to the
deeply flawed drafting of the articles by the House of
Representatives. They have left the House managers free to fill
what Mr. Ruff described as ``an empty vessel,'' to define for
the House of Representatives what it really had in mind when it
impeached the President. But that is not a role that the
Constitution allows to be delegated to the House managers. It
is not a role that the Constitution allows them to fill. It is
a role that is explicitly and uniquely reserved to the full
House of Representatives which, under our Constitution, has the
sole power to impeach.
The articles also are unconstitutionally defective for yet
another reason, because each article combines a menu of
charges, and the managers invite the Members of this body to
convict on one or more of the charges they list. The result is
the deeply troubling prospect that the President might be
convicted and removed from office without two-thirds of the
Senate agreeing on what the President actually did. Such a
result would be in conflict with the requirement that the
President cannot be convicted unless two-thirds of this body
concurs. The requirement of a two-thirds supermajority is at
the core of the constitutional protection afforded the
President and the American people. The Founding Fathers were
wise to guarantee that protection, and it has protected the
Presidency for more than two centuries. The House must not be
allowed to erode that protection today. The articles, as
drafted, are unconstitutional.
The fourth ground for the motion is based on the facts. Mr.
Manager McCollum has twice asserted that this body must first
determine whether the President committed crimes, and then move
on to the question of removal from office. Recognizing that
each Senator is free to choose the standard of proof that his
or her conscience dictates, we submit that if the question is,
as the managers would have it, whether the President has
committed a crime, that standard should be proof beyond a
reasonable doubt. And it is clear that such a standard, that
is, proof to the level of certainty necessary to make the most
significant decisions you face in life, cannot possibly be met
here. The presentations last week demonstrated that the record
is full of exculpatory facts and deeply ambiguous
circumstantial evidence that will make it impossible for the
managers to meet this standard or, in fact, any standard that
you might in good conscience choose to apply here.
The managers have, with great ingenuity, spun out theories
of wrongdoing that they have advanced repeatedly, persistently,
passionately. But mere repetition, no matter how dogged, cannot
create a reality where there is none. The factual record is
before you. We submit that it does not approach the kind of
case that you would need to justify the conviction and removal
of the President from office. And calling witnesses is not the
answer. All the evidence you need to make your decision is
before you, documented in thousands of pages of testimony given
under oath or to the FBI agents and Mr. Starr's prosecutors
under penalty of law.
These, then, are the four grounds for the motion to
dismiss. I know many of these arguments are not new to you, and
I will try to be brief as I review them.
The question before this body requires solemnity on all of
our parts. It inevitably creates no small measure of
apprehension. In our Nation's political history, in our legal
history, it is fair to say that few decisions of such
overwhelming magnitude have been confronted by this body. There
could be no matter more clearly placed in your hands alone by
the Constitution, and on its resolution rests more than the
political fate of William Clinton; there rests the course of
our democracy in the coming years of the new century and for
untold years thereafter.
Constitutional history confirms that the decision before
you was meant to be significant and difficult to make. It
demonstrates that only the most extraordinary of charges
warrants the most extraordinary of outcomes. Any question, any
doubt, must be resolved in favor of the electoral will, for it
is the will of the people, the people who have all sovereignty
in our law, that in the end is the foundation of our democracy.
And we submit that the doubt here is pervasive: Doubt about
whether the charged conduct, efforts to conceal a private
personal embarrassment, could reasonably be deemed a violation
against the state at all, let alone a violation so severe as to
compel removal; doubt about the constitutionality of the
articles as drafted; doubt about the sufficiency of the
managers' case; and that doubt upon doubt upon doubt makes a
vote to dismiss the only fair choice.
Let me turn then to the fundamental constitutional
argument.
The impeachment power was meant to remove the President of
the United States from office only for the most serious abuses
of official power or for misbehavior of such magnitude that the
collective wisdom of the people would compel immediate
discharge. One of America's leading professors of
constitutional law, Professor Akhil Amar of the Yale Law
School, has framed the problem poignantly and concisely,
stating:
The question to ask is whether [President Clinton's]
misconduct is so serious and malignant as to justify undoing a
national election [and] canceling the votes of millions.
We know the answer. It was provided by Charles Black in his
classic book on impeachment when he wrote that:
Impeachment and removal should be reserved only for
offenses that so seriously threaten the order of political
society as to make pestilent and dangerous the continuance in
power of their perpetrator.
James Madison made much the same point two centuries
earlier, stating that an impeachment provision of some kind was
``indispensable'' because a President's ``loss of capacity or
corruption . . . might be fatal to the Republic.''
The statements and writings of the framers of our
Constitution and centuries of scholarship and the meaning of
that brief but so significant phrase, ``high crimes and
misdemeanors,'' enable us to establish with solid assurance
that the conduct charged against the President does not amount
to an impeachable offense.
Our argument today is a simple one: Ordinary civil and
criminal wrongs may be addressed through ordinary civil and
criminal processes, and ordinary political wrongs may be
addressed at the ballot box or by public opinion. Only the most
serious public misconduct, aggravated abuse of Executive power,
is meant to be addressed through exercise of the Presidential
impeachment power.
The conduct here arises out of a private lawsuit. Let me
talk for a moment about that lawsuit which is the backdrop for
these proceedings.
The Jones case arose out of an alleged incident that
predated the President's first term as President. The charges
at issue here arise out of the President's conduct in that
lawsuit. No charge relates to his official conduct as
President. Indeed, as we know, the Supreme Court told President
Clinton that he could not delay defending the Jones lawsuit
until he was out of office. And when it ruled that way, the
Court emphasized just this very point. It made clear that he
might have been able to delay or avoid the lawsuit if it had
related to his official conduct, because the law provides
various immunities for such lawsuits; but precisely because it
related to his private actions, it would be allowed to go
forward.
In drawing that conclusion, interestingly, the Supreme
Court actually looked to the wisdom of James Wilson, a framer,
a Supreme Court Justice, and a constitutional commentator, and
cited the distinction he drew between a President's acts
performed in his ``public character,'' for which he might be
impeached, according to Justice Wilson, and acts performed in
his private character, to which the President is answerable, as
any other citizen, in court.
We agree that there might be extreme cases where private
conduct would so paralyze the President's ability to govern
that the impeachment power must be exercised, where the
certainty of guilt and the gravity of the charge would leave no
choice. But charges arising out of the President's efforts to
keep an admittedly wrongful relationship secret are, by no
analysis, of that caliber.
Some have suggested that making this argument is the same
as arguing that the President is above the law. That simply is
not so. The often repeated statement that no man--or woman, I
should add--is above the law is, of course, true. Once he
leaves office, the President is as amenable to the law as any
citizen, including for private conduct during his term of
office. As my colleagues, Mr. Ruff and Mr. Craig, argued to you
last week, if a grand jury should choose to consider charges
against this President, his status as a former President will
not prevent that consideration.
But here is the point: Impeachment is not meant to punish
an individual; it is a protection for the people; in Alexander
Hamilton's words, a remedy for great ``injuries done to the
society itself.'' It is, as your 19th century predecessor,
Senator Garrett Davis, pointed out in the Andrew Johnson
proceedings, ``the extreme remedy . . . intended for the worst
political disorders of the executive department.''
The House managers appear to argue that the President must
be removed nonetheless, because to do otherwise places him
above the law. But there is one thing that can be said with
certainty about the impeachment power. Although it may have
that result, it is not meant to punish the man, to set an
example, or to provide a ``cleansing'' of the political
process; it is meant to protect the state. If it is punishment
the House managers seek, they are in the wrong place, in the
wrong job, at the wrong time, and for the wrong reasons.
A question has arisen whether, as a general matter, any
violation of law demands removal because it would be a
violation of the President's duty to take care that the laws be
faithfully executed or a breach of the public trust. But,
again, the history of the clause makes clear that the framers
intentionally chose not to make all crimes or even all felonies
impeachable.
I suggest we would all agree that, in the broadest possible
sense, a proven violation of criminal law is a violation of a
public trust. But the framers consciously elected not to make
impeachment the remedy for ``all crimes and misdemeanors.''
When the framers wished to address all crimes, they knew how to
do it, and they did it. In article IV, section 2, the
Constitution states that, ``A Person charged in any State with
Treason, Felony, or other Crime'' is susceptible to
extradition--``or other crime.'' The framers knew how to say
it, but they didn't say it about impeachment, because that is
not what they meant.
Some also have argued that the experience of judicial
impeachments in this body undermines this argument. They claim
that judges have been removed for purely private conduct and
that a President should be treated no differently. This
argument completely misses the mark as well.
By constitutional design, judges are very different from a
President. Presidents are elected for a fixed term, while
Federal judges serve with life tenure. Presidents are elected
by the people in one of the great periodic exercises of
national will, and their tenure is blessed as the choice of the
people.
Judges, on the other hand, are appointed and confirmed by
the representatives of the people, but their selection does not
represent a direct expression of the will of the people.
Judges' tenure is conditioned on good behavior, while that of a
President is not. And there is an obvious reason for this
distinction. Life tenure, which was designed to assure judicial
independence, plainly becomes a problem in the event of a judge
who is not fit to serve. A President may be voted out by the
people, a judge may not; hence the good behavior requirement
and the duty upon the Congress to enforce it in those
exceptional cases where it must be enforced.
It is possible to debate forever whether the good behavior
clause represents an independent basis for impeachment or
whether, in the case of judges, it is a factor to be weighed
when this body exercises its sound judgment to decide what
constitutes a high crime or misdemeanor. But there is no need
to resolve that dispute here. Either way, it is clear, as the
Watergate impeachment inquiry report established, that the term
``high crimes and misdemeanors'' is given content by the
context of the charge and the office at issue. Because of
issues of legitimacy, accountability, and tenure, the framers
decided that Federal judges needed the additional check of the
good behavior clause--language they left out of the articles
creating Congress and the Presidency.
And the Presidency is, of course, different. Alexander
Hamilton said, in Federalist 79, that a judge could be
impeached for malconduct. But in the words of the Watergate
Impeachment Inquiry Report--a report I remind you that Mr.
Manager Canady has commended to your consideration--
Presidential impeachment is distinctive. The report stated--and
I quote, because it is an important quote--``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 the constitutional
duties of the presidential office. . . . The facts must be
considered as a whole in the context of the office,'' the
report concludes. The office matters. For judges, the good
behavior standard comes in one way or the other. For the
President, the standard is different.
As I mentioned, Mr. Manager Graham candidly acknowledged
last Saturday that reasonable people could disagree as to
whether this President should be removed from office, even if
they believe he acted as charged--reasonable people could
disagree. In this connection, consider, if you will, the words
of Senator William Pitt Fessenden, written 130 years ago.
Senator Fessenden was one of the seven brave Republicans who
crossed party lines to vote against the conviction of President
Johnson in his 1868 impeachment trial. He wrote--and I quote--
``the offense for which a Chief Magistrate is removed from
office . . . should be of such a character as to commend itself
at once to the minds of all right thinking men as, beyond all
question, an adequate cause.'' Think about that phrase--
``beyond all question.'' Where there is room for reasonable
disagreement, there is no place for conviction.
If many in this Chamber and in this Nation believe that
these charges do not meet the bar of high crimes and
misdemeanors, then the question must be asked, Why prolong this
process?
I would like to turn briefly now to two grounds for
dismissal based on the manner in which the House drafted these
articles. The first is that each of the articles contain
several quite different charges. The House compounded its
charges. It is tempting to ask how, in a matter of such
importance, we can urge what might appear to be a procedural,
highly technical argument like this one.
There are several answers to that. The first is that it is
neither ``procedural'' nor ``highly technical.'' It goes to the
very heart of our constitutional protections and raises
concerns about fairness and the appearance of fairness in this
proceeding as so many Senators have so eloquently noted in the
past when the issue has arisen.
As Senator Kohl stated in the Judge Nixon impeachment
matter, in which a similar omnibus article was defeated--and I
quote:
The House is telling us it's OK to convict Judge Nixon on
Article III even if we have different visions of what he did
wrong. But that's not fair to Judge Nixon, to the Senate, or to
the American people. Let's say we do convict on Article III.
The American people--to say nothing of history--would never
know exactly which of Judge Nixon's statements we regarded as
untrue. They'd have to guess. What's more, this ambiguity would
prevent us from being totally accountable to the voters for our
decision.
As the Senator said, that is an unacceptable outcome, one
that was ``not fair to Judge Nixon, to the Senate, or to the
American people.''
Judge Nixon was acquitted on this article. We suggest to
you that the House is now asking this Senate to convict
President Clinton on just such articles. And that is not fair
either to President Clinton, to this Senate, or to the American
people.
The second response is that--even if this troubling problem
were procedural--fair, constitutional procedures go to the
heart of the rule of law. As the Supreme Court has stated,
``The history of liberty has largely been the history of
observance of procedural safeguards.'' It would, indeed, be
ironic if, in the course of this proceeding in which the
vindication of the rule of law has so often been invoked, this
body were to ignore an important procedural flaw.
The legal basis for this argument is by now well known.
Article I, section 3 of the Constitution provides that on
articles of impeachment ``no Person shall be convicted without
the Concurrence of two-thirds of the Members present.'' This
requirement is plain. There must be, in the language of the
Constitution, ``Concurrence,'' which is to say, genuine,
reliably manifested agreement among those voting to convict.
Without clarity on exactly what the President would be
convicted for, there can be no concurrence. These requirements
of concurrence and a two-thirds vote are the twin safeguards of
the framers' plain intent to assure that conviction not come
easily.
And let there be no doubt, these articles present textbook
examples of a prosecutorial grab bag. Look at article II,
which, by its terms, charges obstruction of the Jones
litigation. It presents six topics related to the Jones
litigation and one related to the very separate issue of grand
jury obstruction. The first six acts alleged are unrelated in
time or alleged intent to the seventh. Under no conceivable
theory are they part of the same scheme, and no one ever has
claimed them to be. But as it is drafted, and as it must be
voted on by this body, under the Senate rules, the article
would allow certain Senators to convict on obstruction of the
Jones case and others on grand jury obstruction. That is not
concurrence in a vote on an article, as the Constitution
demands it. An indictment against any American drafted like
these articles could not go near the jury. It would be
dismissed. And no lesser standard should apply here.
A second fatal flaw in the drafting is their complete lack
of specificity, which makes it impossible to know precisely
what the President is alleged to have done wrong. This defect
is most troublesome in the article I perjury charges, which
never simply state what the President said that was allegedly
perjurious. The defect is a plain and obvious constitutional
one: The House of Representatives has unconstitutionally
neglected its ``sole'' power to impeach and delegated to the
House managers that which cannot constitutionally be
delegated--the power to decide what the House meant. The result
has been what can charitably be described as a fluid approach
to the identification of charges against the President. The
House majority and its managers have sought to add, delete,
amend, expand and contract the list as this matter has
proceeded from Mr. Starr, to the committee, to the full House,
to this body.
They also, mystifyingly, have insisted on couching their
charges as examples. How on Earth can an accused defend against
examples? Where is the notice? Where is the due process? And no
sooner was this very concern raised here by Mr. Ruff than they
did it again. This is quite extraordinary.
In response to Mr. Ruff's challenge, the managers put out a
press release, on January 19, purporting to list allegedly
perjurious statements on which you are to vote. And what did
they say? They offered more examples. They said in response--
and I quote--``Here are four examples of perjurious statements
made to the grand jury:''
Ladies and gentlemen, almost 40 years ago, the Supreme
Court made clear that this kind of charging is unacceptable.
When an indictment leaves so much to the imagination of
individuals, other than the constitutionally designated
charging body, it must be dismissed. Again, no lesser standard
should apply here.
Our fourth ground for dismissal is based on the facts. The
evidence, in the tens of thousands of pages before you,
establishes that the case against the President cannot be
proven with any acceptable degree of certainty. The record is
filled with too much that is exculpatory, too much that is
ambiguous, too much from the managers that requires unfounded
speculation.
A very brief look at the articles and the facts makes clear
that in light of the uncontested exculpatory facts, such as the
direct denials from Ms. Currie, from Mr. Jordan, and from Ms.
Lewinsky of various alleged misconduct, the managers cannot
possibly meet their burden of proof here. Look briefly at
article I. Much of it challenges the President's assertions of
his own state of mind, his understanding of the definition
given to him, his understanding of the meaning of a word, his
legal opinion of his Jones testimony, his mindset during
statements of his lawyer, Robert Bennett. The managers offer
speculation and theories about these matters, but you are not
here to try speculation and theories. You are here to try
facts. And the facts do not support their theories.
Other claims in article I are so insubstantial as to be
frivolous and unworthy of the time and attention of this
historic body. Certain answers about the particulars of the
admitted intimate relationship between the President and Ms.
Lewinsky--whether their admitted inappropriate encounters were
properly characterized as occurring on ``certain occasions'' is
but one example--could not possibly have had any bearing on the
Starr investigation. These answers were even irrelevant,
immaterial, to Mr. Starr.
Remember, in the grand jury the President admitted to the
relationship, admitted it was improper, admitted it occurred
over time, admitted he had sought to hide it, admitted he had
misled his wife, his staff, his friends, the country. But how
it began, exactly when it began, how many intimate encounters
there were, whether there were 11 or 17 or some other number,
and with what frequency, these are details irrelevant to the
Starr investigation, and I must say, irrelevant to your
decision whether to remove the freely elected President of the
United States.
There has been much discussion about the Jones deposition
here and whether it, too, is a part of article I. The point is
a simple one. The House of Representatives exercised its
constitutional authority, and in a bipartisan vote defeated an
article of impeachment based on the answers in the Jones
deposition. Those answers are not before you and the managers'
sleight of hand cannot now put them back into article I. The
article charges only the statements made in the grand jury
about that deposition. The managers ask you to look at one
response: The President's lawyerly assertion that the Jones
deposition was not legally perjurious, however frustrating or
misleading, and to read that as an affirmation of every answer
he gave. But the grand jury testimony must be read as a whole.
What did the President convey during that testimony?
Certainly not that he was standing behind every word in the
Jones deposition as the whole truth. He spent 4 hours in the
grand jury explaining that testimony--adding to it, clarifying
it, discussing the confusing deposition questions and answers,
and pointing out his efforts to be literally truthful, if not
forthcoming, explaining what he had tried to do, the line he
had tried to walk, however successfully or unsuccessfully. He
laid it all out. He was not asked by Mr. Starr to reaffirm or
adopt the earlier testimony, and he did not reaffirm or adopt
it.
This brings us to the last issue in article I, the so-
called touching issue. My colleague, Mr. Craig, has talked at
length about the legal and practical obstacles to a case based
on an oath against an oath. Whether compelled by law or
practice, the rule reflects the commonsense proposition that
there will always be a reasonable doubt as to the truth when
the case rests merely on an oath against an oath. That is why
seasoned prosecutors said in the House of Representatives that
they would never bring such a case. That is why you need no
more information to conclude that conviction on that basis will
not be possible.
The evidence also undermines the allegations of article II.
My colleagues, Ms. Mills and Mr. Kendall, made a detailed
review of the allegations in each of the seven subparts of
article II. They went over the evidence in great detail, and I
am certainly not going to repeat that here. They pointed to the
significant amount of direct evidence in the record that
controverts the claims made in this article, most notably the
consistent statements by Ms. Lewinsky that no one ever asked,
suggested, or encouraged her to lie, and that no one ever
promised her a job for her silence.
They demonstrated that with regard to the transfer of
gifts, the testimony of Ms. Lewinsky and Ms. Currie has
consistently been inconsistent, but that even Ms. Lewinsky has
acknowledged it was she who was concerned about the gifts and
who raised the issue with the President. And the fact that the
President gave Ms. Lewinsky more gifts on December 28 simply
cannot be reconciled with any theory of the managers' case.
Ms. Mills reviewed the evidence concerning the President's
conversation with Ms. Currie on the Sunday after the Paula
Jones deposition. However ill-advised that conversation might
have been under the circumstances, it was not criminal. The
President was motivated by his own anxieties and by a desire to
find out what Ms. Currie knew in anticipation of the media
storm he feared would break, as it surely did. Contrary to the
suggestion of Mr. Manager Hutchinson, Ms. Currie had not yet
been subpoenaed at the time of that conversation. Ms. Currie
was not on any Jones case witness list at the time of the
conversation. She testified that she felt absolutely no
pressure to change her account during that conversation. She
never testified that she felt uncomfortable--again, contrary to
the suggestion of Mr. Manager Hutchinson. She was not a
witness. There was no pressure. There is a completely
reasonable explanation.
Let me be clear here: There is no evidence that the
President ever asked Ms. Lewinsky to file a false affidavit or
told her to give false testimony if she appeared as a witness.
Both believed Ms. Lewinsky could file a limited but true
affidavit that might--might--avoid a deposition in the Jones
case. While the two had discussed cover stories to explain Ms.
Lewinsky's visits, Ms. Lewinsky never testified that they
discussed the cover stories in the context of the possibility
of her testifying personally, as article II alleges.
Now you have heard in detail from Mr. Craig and Mr. Kendall
about the fleeting moment in the Jones deposition when Mr.
Bennett tried unsuccessfully to prevent the President being
questioned about Ms. Lewinsky by citing her affidavit. The
judge immediately overruled the objection. It did not obstruct
in any way the Jones lawyers' ability to question the
President.
The statement had no effect. And the tape of the President
cannot disprove the President's testimony that he wasn't paying
attention. He doesn't comment, concur, or even nod. With a weak
case at hand, the managers have tried to turn a blank stare
into a high crime.
The last subpart of article II is flawed in many respects:
The article alleges obstruction of the Jones case, but the
President's misleading statements to his White House aides
about Ms. Lewinsky had no effect on that case at all. In any
event, the effect of the President's statements on his aides
was no different than on the millions of Americans who had
heard and seen the President make similar denials on
television.
And finally, the subpart claims obstruction of the grand
jury, whereas the whole point of article II is alleged
obstruction of the Jones case. As I asked before, what is it
doing here?
As to Ms. Lewinsky's job search, all the managers have
presented is a theory, a hypothesis in search of factual
support.
The direct evidence is clear and uncontradicted. Ms.
Lewinsky, Mr. Jordan, the President, and people at the New York
City companies Ms. Lewinsky contacted all testified that there
was no relation of any of the job search activity to the Jones
case--none. Not a single witness supports the managers' theory.
As we demonstrated, their core theory that the job assistance
intensified after the Court's December 11 order was based on
plain and simple error. And without that support, the theory
collapsed.
No doubt, the managers' response will be that that is why
witnesses are needed, to help the managers make their case. But
witnesses will not fill the void in the evidence:
First, because the evidence, as we have shown, is
overwhelmingly uncontested. If there is no dispute, why do
witnesses have to be questioned at all? House Majority Counsel
Schippers himself made this point when speaking of the very
same transcripts and FBI interviews that you all have before
you. He stated to the Judiciary Committee: ``As it stands, all
of the factual witnesses are uncontradicted and amply
corroborated.''
Second, because the actual disagreements--for example, what
was in the President's mind in his deposition?--are about
conclusions that must be drawn from the undisputed evidence,
not disputes in the evidence itself. More evidence will not
inform a judgment on the President's state of mind.
Third, because those witnesses with testimony pertinent to
the charges have already repeated their testimony again and
again and again--in some instances, 5 or 10 times--over and
over and over to FBI agents, to prosecutors, to grand jurors.
Experienced career prosecutors, trying to make their best case
against the President, questioned scores of witnesses. They
compiled tens of thousands of pages of evidence. They
questioned Ms. Lewinsky on at least 22 separate occasions. They
questioned Mr. Jordan on at least five occasions. They
questioned Ms. Currie on at least eight occasions. On one day
alone--July 22, 1998--prosecutors asked Ms. Currie more than
850 questions, and that was only 1 of her 5 appearances before
the grand jury or FBI agents. And they did, in fact--contrary
to the suggestion of the managers--question witnesses,
including Ms. Lewinsky, after the President's testimony to the
grand jury.
These witnesses whom I have mentioned, who were questioned
repeatedly, are not alone. They could not possibly add to their
testimony, or amend it, in any significant way that could alter
the judgment you could make today. Yet, it is the hope that
these witnesses will be forced to change their testimony, to
provide evidence where there now is none, that drives the
current desire to question them.
Let me make a few final points about this witness issue.
``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.'' That is our argument, but those are not my
words, they are the words of Mr. Manager Gekas, spoken just
last fall, talking about this same factual record you have
before you. And Mr. Manager Gekas was correct.
``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. Why re-interview Betty Currie
to take another statement when we already have 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?'' Again, that is our argument, but, again, those are
not my words, those are the words of Chairman Hyde. He, too,
was correct. Those words apply with equal force today. The
witnesses are on the record. Their testimony is known. There is
no need to put them through the ordeal of testimony again.
The House managers, no doubt, will answer that that was
then, this is now. But that is not good enough. The House had a
constitutional duty to gather and assess evidence and testimony
and come to a judgment as to whether it believed the President
should be removed from office--not to casually and passively
serve as a conveyor belt between Ken Starr and the U.S. Senate,
not to ask this body to do the work the House failed to do.
The actual power to remove the President resides here, of
course. But the power to take that first step rests with the
House. And the House exercised it: The articles explicitly find
that certain conduct occurred and that that conduct warrants
``removal from office and disqualification to hold and enjoy
any office of honor, trust, or profit under the United
States.'' If there was any doubt about the testimony on which
they based their judgment in reaching that conclusion, such
doubt should have been resolved before any Member rose to say
``aye'' to an article of impeachment calling, for the first
time in 130 years, for the Senate to decide on the removal of
the President.
The President did not obstruct justice. The President did
not commit perjury. The President must not be removed. The
facts do not permit it.
Now, ladies and gentlemen of the Senate, I hope I have
outlined clearly for you some of the many valid grounds on
which you might base a decision to vote for the motion offered
by Senator Byrd.
On constitutional grounds, the matters simply don't meet
the test of high crimes and misdemeanors, as specified by the
framers or interpreted by hundreds of historians. As a matter
of law, these articles are defective. In a court, they would be
dismissed in a heartbeat for vagueness and for being
prosecutorial grab bags.
The evidence itself, after being gathered in what may be
one of the largest criminal investigations in this country's
history, fails to offer a compelling case and is based largely
on weak inferences from circumstantial evidence. Each of these
is reason enough to end this trial now, without further
proceedings.
As Senator Bumpers said more personally and eloquently than
I could hope to, the President has been punished; he is being
punished still--as a man, as a husband, as a father, as a
public figure. Beyond his family, you have been reminded that
the criminal law will still have jurisdiction over Bill Clinton
the day he leaves office. And while I am confident the case
would have no merit in a court of law, that is the venue in
which justice may be sought against an individual.
So the sole question you are faced with is the most
important one: Do you, for the first time in 210 years of our
freedom, set aside the ultimate expression of a free people and
exercise your power to remove the one national leader selected
by all of us?
If you don't believe this body should remove the President,
or if you believe that no amount of requestioning of witnesses
or torturing facts will change enough minds to garner the two-
thirds majority necessary to remove the President, or if you
simply have heard enough to make up your mind, then the time to
end this is now.
The President has expressed many times how very sorry he is
for what he did and for what he said. He knows full well that
his failings have landed us in this place, and he is doing all
he can to set right what he has done wrong.
The entire Nation--indeed the world--is now looking to this
body, to this Chamber, to this floor, for sound judgment; and
we are asking you not to answer a serious personal wrong with a
grievous constitutional wrong. When we ask you to vote for
Senator Byrd's motion to dismiss, we do not mean that nothing
ever happened, that this is no big deal--and that is where we
lawyers have done a disservice to the language--because this is
a big deal. It is a very big deal. Punishment will be found
elsewhere. Judgment will be found elsewhere. Legacies will be
written elsewhere. None of that will be dismissed. None of that
can ever be dismissed.
We ask you to end this case now so that a sense of
proportionality can be put back into a process that seems long
ago to have lost all sense of proportionality. We also ask you
to end the case now so that the family members and others who
did no wrong can be spared further public embarrassment.
We also ask you to end this case now so that the poisonous
arrows of partisanship can be buried and the will of the people
can be done--allowing all of you to spend your full days on the
most pressing issues of the country.
You have heard the charges in full; heard the defense. Now
is the time to define how the national interests can best be
served--by extending this matter indefinitely or ending it now.
We submit that it is truly in the best interest of this Nation
to end this ordeal in this Chamber at this time and in this
way.
Thank you.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Could I inquire? Is there further presentation
from the White House counsel, or will the time be used for
concluding remarks by the House managers?
The CHIEF JUSTICE. The White House counsel has 6 minutes
remaining; the managers have reserved 36 minutes.
Mr. Counsel RUFF. There will be no further presentation,
Mr. Chief Justice.
recess
Mr. LOTT. In view of that, Mr. Chief Justice, I understand
the White House counsel will have no further presentation to
make, so what is left would be the concluding remarks by the
House managers. I would like for us, when that is concluded, to
go right into the votes.
In view of that, I think it would be a good idea to take a
15-minute break at this point. And I ask unanimous consent for
that.
There being no objection, at 4:12 p.m., the Senate recessed
until 4:38 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready now for
the closing part of the argument by the House managers on the
motion to dismiss.
The CHIEF JUSTICE. The Chair recognizes the House managers.
Mr. Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice,
Senators. My fellow Manager Graham has extended me a few
minutes before he comes up here just to allow me to respond to
a couple of factual assertions by the White House counselors
during the recent presentation. I know that there was a
reference made to the impeachment proceedings of former
President Nixon, and there were various articles that were
considered. But one of them that I don't believe was talked
about was obstruction of justice. And I believe that the
Senators in this Chamber would agree that obstruction of
justice has historically been a basis for impeachment of public
officials because of the impact that it has on the
administration of justice. And that was historically true
during the time of the impeachment of President Nixon. It was
an issue during that time and it should be no less of a concern
this year, in 1999.
Now, when I listen to a defense attorney make a
presentation, oftentimes I will listen to what they didn't
cover as much as what they did cover. And you always have to go
back to that because many times that points to a big gap of
something they just can't explain. As I listened to the
presentation, of course they addressed the assertion that Ms.
Betty Currie was, in fact, not a witness at the time the
President called her in and went through the questioning of her
after his deposition on January 17. But, yet, it has been
clearly established that she was a known witness at the time.
Now, they hoped, they prayed, they wished, they counted for the
fact that that subpoena would never be uncovered. But the
subpoena was uncovered. The fact was established that she was
put on the witness list and that she was a known witness at the
time. But the fact is, it does not matter. She was a
prospective witness, and that was what the President did when
he came back and talked to her.
But what has never been addressed--has never been
addressed--is why in the world did the President believe he
needed to talk to her a second time. It was one time the
questioning, but 2 days later she was brought in and taken
through the same paces. The answer was, ``Well, he explained
it.'' Well, he tried to explain why he did it the first time;
he was trying to get information. There could be no explanation
for the second instance of which she was called in and
questioned. She was a witness, she was a known witness and she
had to be talked to, and it was done twice.
Another thing that I do not recall ever being mentioned--
they argue that, ``Well, there is no evidence of favors on a
job search,'' and I believe that is not supported by the
record. How many times has the President's attorneys discussed
the description and the report by Mr. Vernon Jordan to the
President, ``Mission accomplished''? I do not believe they have
ever discussed that particular terminology. I do not believe
they have ever discussed the terminology, the call from Mr.
Vernon Jordan to Mr. Perelman saying, ``Make it happen if it
can happen.''
So I think there are some gaps in their defense; and,
clearly, you understand that the facts have supported each of
the allegations of obstruction that we have set forth.
They argue that, ``Well, there was no evidence of any false
affidavit.'' Whether it is evidence that an affidavit was
encouraged by the President of the United States, he suggested
the affidavit and, as of necessity, it would have to be false
if it was going to be accomplishing the intended purpose.
They are asking you in this motion to dismiss to ignore the
evidence that we have presented, to ignore the testimony, the
documentary evidence, to ignore common sense and simply to
accept the denials of the President of the United States. That
is not what a motion to dismiss is about. We ask that we move
forward to consider the full development of these facts.
I yield to Mr. Graham.
The CHIEF JUSTICE. The Chair recognizes Mr. Graham.
Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. How much
time do we have left?
The CHIEF JUSTICE. The House managers have 32 minutes
remaining.
Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. To my
colleagues, my chairman wants 11 minutes. So, for my own sake,
please let me know when we get close.
[Laughter.]
We meet again to discuss a very, very important event in
our Nation's history. To dismiss an impeachment trial under
these facts and under these circumstances would be
unbelievable, in my opinion, and do a lot of damage to the law
and to the ultimate decision this body has to make: whether or
not Bill Clinton should be our President.
As I understand the general nature of the law, the facts
and the law break our way for this motion. What I would like to
discuss with you is whether or not a reasonable person could
believe that Bill Clinton should not be our President and the
facts that have been presented rise to the level of creating
serious doubts about whether he is a criminal, not just a bad
man who did bad things. For he is a good man in some ways, as
all of us are, and he has done some things that everybody in
this body will condemn roundly.
America needs no more lectures about Bill Clinton's
misconduct, about his inappropriate relationship. We need no
more lectures about his sins. We all have those. We need to
resolve, Is our President a criminal? That is harsh, but the
facts bear out those statements.
When you dismissed the judges for perjury and filing
statements under oath, some of you said some very harsh things
about those judges, not because you are harsh people, but
because their conduct warranted it.
One thing I am not going to do--and I will quit this job
before I do this--I am not going to run over anybody's
conscience when they are exercising it as they deem appropriate
for the good of this Nation. My name has been brought up a
couple of times about whether or not reasonable people can
disagree with me and still be reasonable about what we should
do in this case. I have told you the best I can that there is
no doubt these are high crimes, in my opinion. This is a hard
decision for our country, but when I first spoke to you, I
thought we would be better off if Bill Clinton left office, and
I want the chance to prove to you why. Give me a chance to
prove to you why I believe that, why my colleagues voted our
conscience to get this case to where it should be, not swept
under a rug, but in a trial to a disposition.
I have lost no sleep worrying about the fact that Bill
Clinton may have to be removed from office because of his
conduct. I have lost tons of sleep thinking he may get away
with what he did. But the question was: Could you disagree with
Lindsey Graham and be a good American, in essence? Absolutely.
You can disagree with me on abortion, and Mr. Hyde, and I am
not going to trample on who you are, because I know that the
liberal wing of the Democratic Party and the moderate wing of
the Republican Party have different views than I do.
But I didn't come up here to run you down. I came up here
to build my country up the way I think it needs to be built up.
Ladies and gentlemen of the Senate, if you will listen to
our case, if you will let us explain why we have lost no sleep
asking for this President to be removed and why we voted to get
it here and you disagree with me at the end of the day, I will
never ever say you don't love your country as much as I do.
That is what that statement was meant to convey, and it will
convey that until I am dead and gone.
The idea that 130 years ago a Senator took a vote and made
a statement that the only way you can remove a President is it
has to be unquestionable in anybody's mind tells me he sure
thought a lot of himself. I am glad to see that stopped in the
Senate. One hundred thirty years later, we don't have people
like that anymore. What that conveyed to me was that a person
made a hard decision and tried to create a standard that slams
somebody else who came out differently.
I hope that is not what this is all about. He goes down in
history, but I wouldn't want that as part of my epitaph, that
when I voted my conscience, I reached a level that if you
didn't go where I was, there is something wrong with you.
What did Bill Clinton do, and why are we all here? Are we
here because of Ken Starr, because of Lindsey Graham, because
of--why are we here? We are here because William Jefferson
Clinton, in my opinion--we are here because on our watch in the
House, the President of the United States, when he was a
defendant in a lawsuit, instead of trusting the legal system to
get it right, did everything possible, in my opinion, to
undermine the rule of law, including going to a grand jury in
August of last year and committing perjury after people in this
body and prominent Americans said, ``Stop it.'' And now we are
here to say, ``Well, we really didn't mean it. The motion to
dismiss means we're sort of just kidding, Mr. President.''
If you believe he is not guilty of these offenses based on
this stage of the trial, then you ought to grant the motion to
dismiss, but you will be changing the law as we know it today.
We haven't had a chance to present our case, really, and all
the facts should break our way. You can believe this if you
would like. They stood up here and argued that the conversation
between President Clinton and his secretary, Betty Currie, was
to find out what she knew to refresh his memory. If you think
that when the President goes to Betty Currie and makes the
following statement, ``Monica wanted to have sex with me and I
couldn't do that,'' that he is trying to figure out what she
knew and is trying to refresh his memory, you can do that. I
would suggest that ``ain't'' reasonable. If you believe that he
wanted to figure out whether he was alone or not with her and
he had to ask Betty, that is not reasonable. That is a crime.
Let me tell you the subtleties of this case, things that
really tell you a lot about why we are here--William Jefferson
Clinton. Before we get into the subtleties of this case,
Senator Bumpers made a very eloquent speech about the ups and
the downs of this case and about his relationship with the
President and how close it was, and the human nature of what is
going on here. But here is what he said:
You pick your own adjective to describe the President's
conduct. Here are some that I would use: indefensible,
outrageous, unforgivable, shameless.
How about illegal?
And he says:
I promise you the President would not contest any of those
or any others.
When you put in the word ``illegal,'' everything is a big
misunderstanding.
Take this case to a conclusion, so America will not be
confused as to whether or not their President committed crimes.
There will be people watching what we do here, and they will be
confused as to whether or not the conversation between
President Clinton and Ms. Currie was illegal or not. Let us
know. That is so important.
Let us know--when he went to Monica Lewinsky and talked
about a cover story--if that is what we want to go on here
every day. And a trial 20 months from now does us no good,
because this happened when he was President, ladies and
gentlemen. This happened when he raised the defense, ``You
can't sue me because I'm President.''
And what did he do after that defense was taken away from
him by the Supreme Court? He went back to somebody who is very
loyal to him, somebody who admires him, somebody whom you and I
pay her salary--his secretary. And he put her in a situation,
through misleading her, that she was going to pass on his lies.
That is not what we pay her to do. He put her in a situation
where she was going to incur legal costs because he cared more
about himself than he did his secretary. He put his Cabinet
members, he put the people who work for him, in a horrible
spot.
The subtleties of this case. Let me tell you one of the
subtleties of this case. And this was read by the defense in
this case:
The President had a followup conversation with Mr. Morris
during the evening of January 22, 1998, when Mr. Morris was
considering holding a press conference to blast Monica Lewinsky
out of the water. The President told Mr. Morris to be careful.
According to Mr. Morris, the President warned him not to be too
hard on Ms. Lewinsky because ``there's some slight chance that
she may not be cooperating with Starr and we don't want to
alienate her by anything we're going to put out.''
And they were trying to tell you that ``ain't'' bad, that
is a good thing. The best you can get from that statement is
the President, when approached with the idea of blasting her,
said, ``Let's wait.''
The subtleties in this case. Who is this young lady? His
consensual lover. But this case started not about consensual
loving. This case started about something far from consensual
loving. This case started about something like a Senator who
ran into problems with you all. And if you will let us develop
our case, you may have a hard time reconciling those two
decisions. But that is up to you.
Please don't dismiss this case. For the good of this
country, for the good of the law, let us get to what happened
here.
John Podesta--the subtleties of this case--he talked to him
about what happened, and he said, ``I had no relationship with
her whatever.'' Everybody who went into that grand jury, who
talked to Bill Clinton, was lied to. And they passed those lies
on to a Federal grand jury. You know what? In America that is a
crime, even if you are President. And you need to address
whether that happened or not. Don't dismiss this case.
But you know what is even more subtle is that John Podesta,
somebody who is very close to him, once he said nothing
happened, felt the need to ask one more question--and pardon me
for saying this--``Does that include oral sex?'' That says a
lot about what Mr. Podesta thinks about Mr. Clinton, because he
felt he had to go one step further, and in his grand jury
testimony he tells us the President took that behavior off the
table.
Some of you are worried about the perjury charge in this
case. Let me tell you right now, you should have no worries,
because you have a dilemma on your hands that is easy to
resolve in terms of whether or not the President committed
perjury in the grand jury. If you believe that he was truthful
when he said, ``I never lied,'' or, ``I was always truthful to
my subordinates, to the people that work for me, to my aides,''
then when he told John Podesta, ``Our relationship did not
include oral sex,'' he was being truthful. If he was being
truthful to John Podesta, he lied through his teeth about
everything else in the grand jury when he approached the grand
jury with the idea that, ``Our relationship was of one kind of
sex but not the other.'' He told John Podesta it wasn't there
at all.
You pick the lie, but it is there. And if you can reconcile
that, you are better than I am. That is up to you all. And does
it really matter? So what? I think it matters a great deal if
you are suing for sexually harassing somebody, and they are on
to the fact that you can't control yourself enough to stop it 4
or 5 years after you are sued, and you are doing it in the
White House with somebody half your age. I think that would
matter. Maybe that is the difference between getting bamboozled
in court and having to pay $850,000.
People are going to be confused if we don't bring this case
to a conclusion. I suggest to you, it matters a great deal,
that any major CEO, any low-level employee of any business in
the country, would have been tossed out for something like
that. But I know he is the President. Electing somebody should
not distance them from common decency and the rule of law to
the point that, when it is all over with, you don't know what
you have left in this country.
Is that what you want to do in this case? Just to save this
man, to ignore the facts, to have a different legal standard,
to make excuses that are bleeding this country dry?
The effect of this case is hurting us more than we will
ever know. Do not dismiss this case. Find out who our President
is. Come to the conclusion, not that it was just bad behavior,
it was illegal behavior. Tell us what is right. Tell us what is
wrong. Give us some guidance. Under our Constitution, you don't
impeach people at the ballot box, you trust the U.S. Senate.
And I am willing to do that. Rise to the occasion for the good
of the Nation.
Thank you very much.
The CHIEF JUSTICE. Do the House managers have any
additional presentation?
Mr. Manager GRAHAM. Yes. I am sorry. Mr. Chief Justice, I
now yield to Manager Hyde.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Hyde.
Mr. Manager HYDE. Thank you, Mr. Chief Justice.
Mr. Ruff, and counsel, and distinguished Senators, I want
to be very candid with you, and that may involve diplomatic
breaches because I am parliamentarily illiterate. But
nonetheless, I looked at this motion to dismiss and I was
astounded, really. If the Senate had said something similar to
the House, it would certainly have received such treatment as
comports with comity, and I don't know enough about comity to
wave that flag, but I don't want to waive my rights to raise
that issue, anyway.
I know Black's Law Dictionary is a resource book for all of
us, but I looked in the Thesaurus about ``dismiss'' and I came
up with ``disregard, ignore, brush off.'' I just am surprised
that this motion is here now before we conclude the case.
Some years ago when I was trying lawsuits, I appeared
before a judge in Chicago. My opponent was an oldtimer who was
just mean--a good lawyer, but he was mean--and the judge
interrupted him in one tirade, and he said, ``Counsel, I have a
lot of respect for you. I wish you had a little respect for
this court.'' I sort of feel that way. I sort of feel that we
have fallen short in the respect side because of the fact that
we represent the House, the other body, kind of blue-collar
people, and we are over here trying to survive with our
impeachment articles.
The most salient reason for defeating this motion is
article I, section 3 of the Constitution which says that the
Senate shall have the sole power to try--to try--all
impeachments. Now, a trial, as I understand it, is a search for
truth, and it should not be trumped by a search for an exit
strategy.
It seems to me this motion elevates convenience over
constitutional process and by implication ratifies an unusual
extension of sovereign immunity. If these articles are
dismissed, all inferences in support of the respondents, in
support of us, the managers, should be allowed; and if you
allow all reasonable inferences in our favor, what kind of a
message does it send to America to dismiss the articles of
impeachment? Charges of perjury, obstruction of justice are
summarily dismissed--disregarded, ignored, brushed off. These
are charges that send ordinary folk to jail every day of the
week and remove Federal judges. But I can see this President is
different. But if the double standard is to flourish on Capitol
Hill, I don't think we have accomplished a great deal.
Yes, it is cumbersome. These proceedings are archaic in
many ways. The question period was something out of the Old
Bailey, I guess. I don't know. But democracy is untidy. I will
stipulate that. It is untidy. But it is also a blessing.
Impeachment and trial by the Senate were devised by our framers
to make this difficult process as definitive as possible.
``Let's get the matter behind us.'' That is a mantra. That
is a cliche. We all say it. You won't get it behind you if you
dismiss this without voting on the articles. You guarantee
contention. You will never get it behind us. Vote these
articles up or down. That is the only way we really get it
behind us.
What this is--this motion--is a legal way of saying, ``so
what'' to the charges that we levied here. Now, look at what
these charges are. So what that the President violated his oath
of office and willfully corrupted and manipulated the judicial
process for his personal gain and exoneration. So what that
President Clinton willfully provided perjurious, false, and
misleading testimony to the grand jury on several topics. So
what that the President 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. So what that the President
encouraged a witness to lie to the grand jury and conceal
evidence. So what that the President 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 to the rule of law and justice, to the
manifest injury of the people of the United States.
That is an awful lot to dismiss with a brushoff, to ignore
with a mere ``so what.''
No, it may be routine. We certainly don't have enough
experience in these impeachment matters, and thank God for
that. It may be routine to file a motion to dismiss. But I take
very seriously a motion to dismiss, especially when it is
offered by the very distinguished Senator who did that. But, in
a bipartisan way, I hope some Democrats will support the
rejection of this motion, as difficult as it is, because I
don't think this whole sad, sad, drama will end--we will never
get it behind us until you vote up or down on the articles. And
when you do, however you vote, we will all collect our papers,
bow from the waist, thank you for your courtesy, and leave and
go gently into the night. But let us finish our job.
Thank you.
Mr. WELLSTONE addressed the Chair.
Mr. LOTT. Parliamentary inquiry, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. I believe, under the agreement we entered into,
the next order of business, then, would be the vote on the
motion by Senator Harkin to go into open session; is that
correct?
The CHIEF JUSTICE. The managers have used their time. The
Chair recognizes the Senator from Iowa, Mr. Harkin.
motion to suspend the rules
Mr. HARKIN. Mr. Chief Justice, in accordance with rule V of
the Senate Standing Rules, Mr. Wellstone and I filed a notice
of intent to move to suspend the rules solely regarding the
debate by Senators on the motion to dismiss, so Senators can
have open rather than a closed debate on this issue.
This motion is offered on behalf of myself and Senators
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.
My motion is at the desk. However, Mr. Chief Justice, I
send a corrected copy of my motion to the desk. There were two
typos in it; I want to have it corrected.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. If it is appropriate at this point, I ask the
Senators if they would remain at their desks so we can go
through this vote, and I ask unanimous consent, since we are
all here, to reduce the time for the vote from 15 minutes to 10
minutes.
The CHIEF JUSTICE. Without objection, it is so ordered.
Is there objection to the Senator from Iowa modifying his
motion?
Without objection, it is modified.
The clerk will report the motion.
The legislative clerk read the motion, as modified, as
follows:
I move to suspend the following portions of the Rules and
Procedure and Practice in the Senate When Sitting on
Impeachment Trials in regard to debate by Senators on a motion
to dismiss during the trial of President William Jefferson
Clinton:
(1) The phrase ``without debate'' in Rule VII;
(2) The following portion of Rule XX: ``, unless the Senate
shall direct the doors to be closed while deliberating upon its
decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motion shall
be voted on without debate by the yeas and nays, which shall be
entered on the record''; and
(3) In Rule XXIV, the phrases ``without debate'', ``except
when the doors shall be closed for deliberation, and in that
case'' and ``, to be had without debate''.
Mr. HARKIN. Mr. Chief Justice, I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The CHIEF JUSTICE. The question is on agreeing to the
motion. The clerk will call the roll.
The legislative clerk called the roll.
The yeas and nays resulted--yeas 43, nays 57, as follows:
[Rollcall Vote No. 2]
[Subject: Harkin motion to suspend the rules]
YEAS--43
Akaka
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Hutchison
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Schumer
Specter
Torricelli
Wellstone
Wyden
NAYS--57
Abraham
Allard
Ashcroft
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Chafee
Cochran
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Inhofe
Jeffords
Kyl
Lincoln
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
The CHIEF JUSTICE. Are there any other Senators wishing to
vote or change their vote? If not, on this vote the yeas are
43, and the nays are 57. Two-thirds of the Senators voting, and
a quorum being present, not having voted in the affirmative,
the motion is rejected.
Mr. REID addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Nevada.
Mr. REID. May we have order in the Chamber, please?
The CHIEF JUSTICE. The Senate will be in order.
order for closed session
Mr. LOTT. Mr. President, I move that we now go into closed
session for the purpose of Senators debating the motion to
dismiss.
The motion was agreed to.
The CHIEF JUSTICE. The Chair, pursuant to rule XXXV, now
directs the Sergeant at Arms to clear the galleries, close the
doors of the Chamber, and exclude all the officials of the
Senate not sworn to secrecy.
recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we take a 10-minute break for the purposes of closing the doors
and preparing for the debate.
There being no objection, at 5:23 p.m., the Senate recessed
until 5:50 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
closed session
[At 5:50 p.m., the doors of the Chamber were closed. The
proceedings of the Senate were held in closed session until
9:51 p.m.; whereupon, the Senate resumed open session.]
open session
Mr. NICKLES. I ask unanimous consent that the Senate now
return to open session.
The CHIEF JUSTICE. Without objection, it is so ordered.
order for adjournment
Mr. NICKLES. I ask unanimous consent that when the Senate
adjourns, it stand in adjournment until the hour of 12 noon on
Tuesday, and I further ask consent that during the remainder of
the trial it be in order for Members to submit unanswered
questions to the Chair.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
program
Mr. NICKLES. On tomorrow, we will resume and begin debate
on the motion to subpoena. I now ask unanimous consent that the
time for argument be reduced to 4 hours, equally divided, as
provided for under Senate Resolution 16.
The CHIEF JUSTICE. Is there objection? It is so ordered.
Mr. NICKLES. Mr. Chief Justice, for the information of all
colleagues, tomorrow we will begin the debate at 12 noon
instead of 1 o'clock.
------
adjournment until tomorrow
Mr. NICKLES. I ask unanimous consent that the Senate stand
in adjournment as under the previous order.
There being no objection, at 9:51 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Tuesday, January 26,
1999, at 12 noon.
SUPPORT OF THE WELLSTONE-HARKIN ``SUNSHINE'' MOTION
Ms. MIKULSKI. Mr. Chief Justice, I rise today in strong
support of the Wellstone-Harkin motion. This motion would allow
open Senate debate during the impeachment trial. Mr. Chief
Justice, the American people should not be excluded from one of
the most important Senate deliberations in United States
history.
The result of the debates and discussions over the next
days or weeks could require the removal of the President of the
United States for the first time in our Nation's 222 year
history. In our deliberations, my colleagues and I will
contemplate no less than reversing the outcome of an election
in which nearly 100 million Americans cast their vote. Such a
significant decision, a decision with such profound
consequences, should not be reached behind closed doors.
I believe my constituents and all Americans deserve to hear
Senate deliberations from Senators--not leakers and speculators
and commentators.
From my earliest days as a Baltimore social worker to my
tenure as a United States Senator, I have lived by the
principle that the public has a right to know and a right to be
heard. This principle is no less important when a Presidential
Impeachment trial is underway. It is more important than ever.
Now, some of my colleagues have said that these
deliberations should be closed because we are jurors and
jurors' deliberations are kept secret in a court of law. But
let me tell you that this Senate tribunal cannot be compared to
a simple court of law. Of course, the law is the foundation for
our work in the Senate. But as my colleague from Iowa, Senator
Harkin, noted during the trial, we are more than jurors.
We are representatives of our Nation. We are given
responsibilities to deliberate on matters of public importance
and vote in the public interest. Never was that more true than
in the Senate trial in which we are now engaged.
The U.S. Senate is, ultimately, the public's institution--
not ours. It is for them we work and it is to them we owe our
continued service. I hope and believe we serve the institution
well and that our stewardship gives credit and credence to the
wisdom of our Founding Fathers. By keeping our deliberations
open, we will do service to the American public we serve, this
institution we cherish, and those Founding Fathers we revere.
I absolutely will not support closing the doors to the
public and hope that my colleagues will join me in supporting
the sunshine motion.
Tuesday, January 26, 1999
[From the Congressional Record]
The Senate met at 12:02 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Gracious God, You not only guide our steps, You order our
stops for quiet times of prayer. We hear Your words spoken
through the psalmist. ``Be still and know that I am God; I will
be exalted among the nations, I will be exalted in the
earth''--Psalm 46:10. Help us absorb the true meaning of these
words translating the original Hebrew. You call us to let up,
leave off, let go, and truly know that You are God. You are in
control. We cannot be still inside until we reaffirm that You
are in control of us, this Nation, and this Senate. We exalt
You El Shaddai, all-sufficient one; Adonai, our Lord; Jehovah-
raah, our Shepherd who guides; Jehovah-rapha, who heals our
bodies and our relationships; Jehovah-shammah, God who is here.
Strengthen the Senators as they seek to exalt You, as these
pages of American history are written during this trial. You
bless the Nation that exalts You! Through Him who taught us to
seek first Your kingdom and Your righteousness. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The Chair recognizes the majority leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Order of Procedure
Mr. LOTT. For the information of all Senators, we are now
prepared to hear arguments regarding the subpoenaing of
witnesses and the taking of their depositions. I understand the
House managers will submit the list and begin their argument;
the White House counsel will then state their arguments, with
the House managers making the final closing statement. This
period has been limited to 4 hours instead of the 6 hours that
had been earlier indicated.
I also expect a motion may be offered again to close the
session with regard to deliberations by the Senators. I need
some further consultation with Senator Daschle to confirm that.
It could be that we could work it out without having to do the
recorded vote. Therefore, votes could occur this evening--
probably between 4:30 and 5 o'clock.
As always, we expect to take a break after about an hour
and a half in the proceedings, and it may be a little bit
longer than usual, so that if Senators are not able to grab a
quick bite, they might be able to grab a little something in
the cloakroom during that first break. So it might be a little
longer than ordinary. I expect that will occur sometime around
1:30, approximately.
Before we begin, since I see that there are still a few
Senators not in the Chamber, I suggest the absence of a quorum,
Mr. Chief Justice.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. If all Senators, counsel, and managers would
return to their desks, I believe we are ready to begin.
Mr. Chief Justice, again, just for the information of all
Senators, what happens next is I believe that a manager will be
recognized on behalf of the House to present a motion with
regard to subpoenaing witnesses and then the presentations will
begin first by the House managers and then by the White House
counsel and then closed by the House managers to be spread over
4 hours, but that at approximately 1:30 we will take a break so
that we can assess how to proceed the remainder of the day and
perhaps even get a bite to eat if Senators hadn't had that
opportunity. It won't be an extended break but it will be
longer than normal.
I believe we are ready to proceed, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Bryant
on behalf of the House managers.
Motion for Appearance of Witnesses and Admission of Evidence
Mr. Manager BRYANT. Mr. Chief Justice, I have a motion to
present.
The CHIEF JUSTICE. The manager will send the motion to the
desk. The clerk will read the motion.
The legislative clerk read as follows:
Motion of the United States House of Representatives for
the appearance of witnesses at a deposition and to admit
evidence not in the Record.
Now comes the United States House of Representatives, by
and through its duly authorized Managers, and respectfully
submits to the United States Senate its motion for the
appearance of witnesses at a deposition and to admit evidence
not in the record in connection with the Impeachment Trial of
William Jefferson Clinton, President of the United States.
The House moves that the Senate authorize and issue
subpoenas for the appearance of the following witnesses at a
deposition for the purpose of providing testimony related to
the Impeachment Trial:
1. Monica S. Lewinsky;
2. Vernon Jordan; and
3. Sidney Blumenthal.
Further, the House moves that the Senate admit into
evidence the following material not currently in the record:
1. the affidavit of Barry Ward, Law Clerk to the Honorable
Susan Webber Wright, U.S. District Court Judge for the Eastern
District of Arkansas;
2. the sworn declaration of T. Wesley Holmes, and
attachments thereto; and
3. certain telephone records which document conversations
between Monica S. Lewinsky and William Jefferson Clinton,
including a 56-minute exchange on December 6, 1997.
Additionally, the House petitions the Senate to request the
appearance of William Jefferson Clinton, President of the
United States, at a deposition, for the purpose of providing
testimony related to the Impeachment Trial.
The CHIEF JUSTICE. Pursuant to Senate Resolution 16, as
modified by the order of January 25, the managers on the part
of the House of Representatives and counsel for the President
each have 2 hours to present their arguments on this motion.
The Chair recognizes Mr. Manager McCollum.
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
Mr. Chief Justice and Members of the Senate, we are here
today to argue for the presentation of witnesses, and I want to
state at the outset a couple of observations of mine regarding
this.
The House managers have always understood the Senate's
sense of the rules on these matters, and we don't question that
fact. But I think it is important, to set the record clear here
today, to say at the outset that we have always believed, and
we still do believe, that 10 or 12 witnesses are what we should
have and should have been permitted to call to prove our case.
We have estimated that this could be done in a matter of 2
weeks at the outside, including all cross-examination. That is
what we think the normal order would have been; it is what we
think it should have been. But we have been told again and
again, and we believe it is true, that if we made such a
request it would not be approved. And a few weeks ago we
thought--maybe even a few days ago--that we could submit a list
of maybe five or six witnesses and there would be a reasonable
chance that for deposition they would be approved and maybe two
or three of them actually could be presented live in the
Chamber.
Now we have been led to believe--and we think it is an
accurate assessment--that in order to get a vote to approve the
opportunity to take depositions alone, whether or not anyone is
called, we cannot submit more than two or three witnesses to
you.
That is what we have done today. We have submitted a motion
for simply three witnesses: Monica Lewinsky, Vernon Jordan, and
Sidney Blumenthal.
The two people who know the most about this are Monica
Lewinsky and President William Jefferson Clinton, and while we
have not submitted to you today the name of President Clinton
in our motion, we strongly urge, if you allow us to have
witnesses, which we believe you should, that you, in addition--
or even if you don't--on your own call President Clinton here
to testify. We think that it is exceedingly important that you
have an opportunity, we have an opportunity for you to examine
him and these other witnesses to get at the truth of this
matter and to end all the speculation that would resolve this
matter and let you draw the proper inferences and conclusions.
I will simply say that I am going to make a brief outline
of the matter of why we should have witnesses for you, the
three we are asking for, and I will be followed in order, so
you can get some sequence to this, by Manager Bryant, who will
discuss in detail the reason why we think it is appropriate to
call specifically Monica Lewinsky; Manager Hutchinson, who will
discuss Mr. Jordan as a witness; and Manager Rogan, who will
discuss Mr. Blumenthal.
If our motion is granted--I want to make this very, very
clear--at no point will we ask any questions of Monica Lewinsky
about her explicit sexual relations with the President, either
in deposition or, if we are permitted, on the floor of the
Senate. They will not be asked. That, of course, assumes that
White House counsel does not enter into that discussion, and we
doubt that they would.
Secondly, we do not see why the entire process of deposing
and calling all of these witnesses right here live would have
to take more than just a very few days, 2, 3, 4, 5, maybe early
next week at the latest. There is no reason why it has to be
longer than that. We absolutely reject the argument that some
were making--and I do not know why they were making it--that
somehow, if we have a single witness out here, it is going to
mean weeks and weeks of protracted delay in this trial.
That is not so, and certainly not so with the three
witnesses we are asking you today to permit us to present.
I also want to address the argument that has been made by
some that witnesses should only be permitted if there is new
evidence.
Now, the managers believe that we will present to you new
evidence with the witnesses that we have asked you to let us
depose. Think through this with me for one moment. Under the
rules you have set up, if we take depositions, which we are
required to do, of every one of these witnesses, at the end of
the day when those depositions are completed, all the new
evidence that we could imagine certainly will be--from those
three witnesses--in those depositions, and the argument will be
made, I am sure, that there is no reason to have a live witness
out here at all.
That had to be a preconceived notion by somebody who
thought of that in the first place. If that is the argument,
that should not be the standard. It should be one of the
standards but not the standard, not the sole standard. There is
a lot more to a witness, and the reason why you need to have a
witness out here, than simply new evidence.
In real criminal trials, virtually all witnesses are
deposed before they are brought to trial, and then the counsel
on each side decide which witnesses they will call. They are
called. They are examined. They are cross-examined. And unless
a witness is deceased or laid up or there is some other
extraordinary reason why that witness isn't there, especially a
key witness, then the witness normally is here live.
It is especially true in a case such as this where much of
the evidence, not necessarily all of it--there is quite a bit
of direct evidence--is circumstantial and requires you to draw,
as many finders of fact do all across this country every day,
inferences and conclusions that involve the credibility of the
witness, that involve the way it is said, that involve
inflections and spontaneity of the witness, the exchange of the
counsel asking the question and the witness, and a description
and flavor of which you simply can't get without having the
person here to observe.
That is what jurors do all the time. I think it is
especially important, as well, because there is conflicting
testimony.
I do not suppose we have a stand here today, but you have
in front of you a credibility of witness instruction I think we
passed out. We would like for you to keep it. It is a
credibility of witness instruction that is longer than that. I
just excerpted a part of it and put it up here on this board. I
know you can't all see that but you should have this sheet. If
you don't, please ask for it. This is a jury instruction that
is given in the District of Columbia. It is something that is
given as a part of our Federal system. And it is important, I
think, for this particular paragraph, to read it, to understand
it, because you wouldn't even write this jury instruction if
you didn't expect to have live witnesses:
In reaching a conclusion as to the credibility of any
witness, you may consider any matter that may have a bearing on
the subject.
That is part of the instruction.
You may consider the demeanor and behavior of the witness.
I think that is important. It is the third paragraph you
look at, the bottom paragraph.
You may consider the demeanor and the behavior of the
witness on the witness stand; the witness' manner of
testifying; whether the witness impresses you as a truthful
person; whether the witness impresses you as having an accurate
memory and recollection; whether the witness has any motive for
not telling the truth; whether the witness had a full
opportunity to observe the matters about which he or she has
testified; whether the witness has any interest in the outcome
of this case or friendship or hostility toward other people
concerned with this case.
Demeanor, manner, truthfulness, how the witness impresses
you. If you don't have that witness here, and it is a critical
witness, there is no way as a trier of fact you can make those
judgments fairly. There just isn't any way. We think that it is
terribly critical, not only that we are permitted to depose
these witnesses, but with respect particularly to Monica
Lewinsky and perhaps all three of them, that we be permitted to
bring those witnesses here at the end of the day and examine
them and let the President's counsel examine them.
The arguments of the President's counsel have been, to some
extent, to you and to me--and I have heard it repeated several
times--that somehow circumstantial evidence is not that
important, that it is somehow inferior to direct evidence. I am
not going to pass out a jury instruction on that again. You
have already heard us talk about that. The reality is the jury
instruction, if we passed one out to you today, would say
exactly what we said before: Circumstantial evidence is given
the same weight, the same weight as direct evidence. Inferences
have to be drawn.
I don't know any case in this country in a criminal
matter--or rarely; I should not say ``any.'' I suppose there is
a confession that always you get once in a while and you read
about it in the paper. But in almost every criminal case, you
have to draw inferences; there has to be circumstantial
evidence of some sort. There is nothing wrong with that. The
President's counsel has said that somehow the nature of the
evidence means that you should automatically acquit him. I just
don't buy that at all.
What are inferences? Let's put inferences up for a second
so you can look at that. Inferences are on this side. This is
another jury instruction. I don't know if you have this one,
but we will give it to you. This is another one that is given
out:
An inference is a deduction or a conclusion which you . . .
as finders of facts--are permitted to draw . . . from the facts
which have been established by either direct or circumstantial
evidence. In drawing inferences you should exercise your common
sense. . . . You are permitted to draw from the facts which you
find to be proven, such reasonable inferences as would be
justified in light of your experience.
A few days ago, one of the White House counsel, Mr.
Kendall, attempted to make you think it was very difficult to
prove a crime by circumstantial evidence. You may remember Mr.
Kendall told the story about a fellow who came out of his house
one morning and he saw his driveway was wet and he immediately
thought it must have rained last night. But, Mr. Kendall said,
this man noticed right after that that his neighbor's water
sprinkler was dripping and he thought, well, maybe the water
sprinkler caused it to be wet. And he used that illustration--
ended the story right there--of how difficult circumstantial
evidence is and how likely you might draw the wrong conclusion
from inferences.
Mr. Kendall didn't allow you to proceed with the next
commonsense step that shows how powerful circumstantial
evidence can be. Let's suppose the man got up in the morning,
he walked out of his house, he saw that his driveway was wet,
and he thought maybe it had rained. He immediately observed the
water sprinkler was dripping. He thought, well, maybe the water
sprinkler caused it and he looked down the street then and
looked at not only his neighbor's sidewalk where it was wet as
well as his, and the driveway, but he looked at his neighbor's.
And he looked at several others all around his neighborhood and
they were dry.
The obvious conclusion from circumstantial evidence is the
neighbor's water sprinkler caused his sidewalk or his driveway
to be wet and it didn't rain. It is a kind of a reasonable,
commonsense, inferential, circumstantial conclusion you are
allowed to draw. You are the finders of fact. I think that that
suggestion was wrong.
But this is why we need witnesses. You need to be able to
see the temperament; you need to be able to have the
background; you need to be able to have the feel or the flavor
to draw those inferences properly.
In the impeachment case before you, you have both direct
and circumstantial evidence that the President engaged in a
pattern of obstruction, perjury, and witness tampering designed
to deny the court in the Jones case what Judge Wright had
determined Ms. Jones had a right to discover in order to prove
her claim. You have to use your common sense to get at this.
Seeing, hearing, and observing those live witnesses is
important.
If you remember, at the outset of this case, at the outset
of these proceedings, I tried to draw your attention to what
this was about in a nutshell. Some have said it is a theory of
the case. The White House wants to call it speculation. It is
not speculation. From all the evidence--especially once you
have heard Monica Lewinsky and Vernon Jordan and Sidney
Blumenthal, I think adding the flavor that you need to have,
adding the body language you need to observe, adding the
credibility that you need to establish in this--I think that is
the proper inference and the proper conclusion you need to
draw.
What was that nutshell? I won't bore you with going into
every detail again, but I want to remind you what the record,
we think, shows and that this additional witness presentation
would augment and thus be very important. It shows the
President had a well-thought-out scheme. He resented the Jones
lawsuit. He was alarmed when Monica Lewinsky's name appeared on
the witness list and even more alarmed when Judge Wright issued
her order signaling the court would hear the evidence of the
relationship.
To keep his relationship with Monica Lewinsky from the
court once it was apparent to him he was going to have to
testify, he knew he would have to lie to the court. To succeed
at this, he decided he had to get Monica Lewinsky to file a
false affidavit to try to avoid her testifying. He needed to
get her a job to make her happy, to make sure she executed the
affidavit and then stick with her lies if questioned.
Then the gifts were subpoenaed. He had to have her hide the
gifts, the only tangible evidence that could link him to her.
She came up with the idea of giving them to Betty Currie and
the President seized on that. Who would think to ask Betty?
Then he would be free to lie to the court in the deposition.
But after this, he realized he had to make sure Betty would lie
and cover for him. He got his aides convinced to repeat his
lies to the grand jury and the public, and all this worked
until the dress showed up. Then he lied to the grand jury to
try to cover up and explain away his prior crimes.
The President knowingly, intentionally, and willfully set
out on a course of conduct in December 1997 to lie to the Jones
court, to hide his relationship, and to encourage others to lie
and hide evidence to conceal the relationship with Monica
Lewinsky from the court.
That is the straightforward case that we presented. It is
there. But it is very important that you recognize this is not
speculation but it is supported by the evidence. But it needs
to have the witnesses here.
I am not going to go into every one of the articles. I am
not going to go over all that again. You have them in front of
you. But you know there are four provisions, four different
provisions of the perjury article, and there are seven counts
in the obstruction article. In addition to the seven counts, we
believe you have the right to consider the lies the President
made in the Paula Jones civil deposition as a part of his
obstruction of justice, as written in the body of that article.
Why do I raise what is there on the table? Well, you can
find the President guilty of any one of the perjury or
obstruction of justice charges. In our judgment, if you find
him guilty of any one, you can convict him and you can remove
him from office. We think that is appropriate. We think that
you should, that every one of them rises to that level.
I want to make a point to you, too, for example, about the
first perjury, about the nature and details of his relationship
with Monica Lewinsky. Let's just say for a minute, so you will
get this one clear, if I could beg your indulgence, there were
a lot of questions raised out here about particular statements
that might be perjurious, some of which may have sounded a
little bit more stretched to you than others did. But the body
and the gravamen of that is that they are all grand jury
perjury about that relationship. Cumulatively, that is what you
are voting on. You are not voting on each and every one of
these, particularly ``the'' singular lie that hangs the
President of the United States. And there are four--there are
three more in addition to that to look at. So, please, look at
all of them.
We also strongly believe that each of these constitutes
high crimes and misdemeanors. It is very hard for us to
conceive that there is a different standard for impeaching the
President and impeaching a judge. We know that has been argued
to you out here, but it is very hard for us to conceive of
this. On the other hand, I am aware that many of you believe,
and I am sure some of you at least do--I hope it is not many,
but I said many--that no matter whether or not the President is
guilty of the perjury and obstruction of justice, everything
that is in here in great detail, everything we have told you,
that none of that rises to the level of a high crime and
misdemeanor and that the President should not be removed from
office.
On the other hand, I think that the majority of you do
believe that, if the President committed all of this, surely it
would rise to the level of high crimes and misdemeanors. How
can you leave in office a man who is President of the United
States who has so intentionally, through his scheme that he has
concocted to deny the court justice, denied information to a
person who is trying to plead their case, gone through it
systematically and lied again and again and again and then
intentionally and calculatingly, lied to the grand jury about
it again?
It is very hard to conceive of that. But I also suspect
that most of you at the end of the day will question some of
these, and as I said earlier, you don't have to conclude that
he commited all of them to convict him, certainly not to find
him guilty of the charges but somewhere in between. Is it 50
percent of them? Is it seven-eighths of them? How many of them
does it take? What is the weight for some of you? Each one of
you will be judging this differently.
But in that process, there is no doubt in my mind that you
need to go through the process of looking and hearing from
these witnesses to make that decision. If you have a doubt, not
in your own mind--maybe some of you have no doubt at all that
he is guilty of any and all of these crimes, but if you think
one of your colleagues does have that doubt at this moment, for
gosh sakes, let's let the witnesses come here and let us have
the chance to erase that doubt in the way you normally do in a
trial.
For a few of the criminal charges under the articles of
impeachment, under both of them, it is our judgment that the
President's guilt is so clear and convincing and compelling
that we don't think any witnesses are needed to be called in
deposition or in person.
First, contrary to the impressions that the White House
counsel would like to leave you, it should be clear to anybody
reading the record that the President committed perjury before
the grand jury when he said that he never touched certain body
parts of Ms. Lewinsky, which touching, the President admitted,
would clearly be within the definition of sexual relations in
the Jones case.
Ms. Lewinsky testified that he touched these parts on a
number of different occasions in a manner clearly within the
President's understanding of that definition. The record
contains testimony from at least six different friends and
counselors with whom Ms. Lewinsky spoke and described these
details contemporaneously as they occurred.
White House counsel has repeatedly tried to dismiss this
absolutely clear perjury by claiming that Ms. Lewinsky's
testimony is uncorroborated and, therefore, you couldn't prove
perjury to the court. They say again and again and again that
it is a ``he says-she says'' situation.
This is a gross misstatement of the law. Even if there were
no corroborating witnesses--and there are in this case--a
person could be and would be convicted of perjury before any
court in this country based on the evidence that is in this
record now. We don't have to bring anything else in here, and
we are not planning to do so to prove that.
The law covering grand jury perjury, which has been on the
books since 1970, does not require a corroborating witness and
does not require corroborating evidence. There are more than
100 people serving in Federal prison today who have been
convicted under this 1970 grand jury statute for perjury where
it is one person's word against another, several of them for
lies about sexual relations.
All you need to convict is to accept that Monica Lewinsky
had no motive to lie about this, the President did, and you
have to draw the inferences you logically can from the chain of
events that are in this record. But even though you don't need
any corroborating testimony, there is corroborating testimony.
There are the six people--friends and counselors--with whom she
talked contemporaneously about this. Again, the White House
counselors have tried to persuade you, wrongly, that you should
not consider this, that this would not be admissible--these
corroborating witnesses--in any courtroom in the country, they
say, and that is not true.
There are at least three exceptions to the hearsay rule
which would, in all probability, permit those prior consistent
statements to come in and corroborate that testimony.
The bottom line is the perjury of the President in this
case is as plain as day on the record, and we don't need to
call any witnesses on this matter. And we also believe there
are a number of other perjuries in that grand jury, that I am
not going to go into detail about, that are just as plain on
the record. We don't need to call witnesses that he perjured
himself when he told the grand jury it was his goal to be
truthful in the Jones deposition. That is what he told the
grand jury--it was his goal to be truthful.
The record is replete with many lies that he told in that
deposition and, in the face of telling the grand jury that his
goal was to be truthful, he committed perjury.
Nor do we believe that any witness needs to be called to
further establish the President's guilt of the crime of
obstruction of justice and witness tampering in the case where
he met Betty Currie on the day after his Jones deposition and
suggested to her all those false declaratory statements that we
have been over so many times in here.
Betty Currie's testimony in this matter is undisputed on
the record. The White House counsel's argument that the
President was just refreshing his memory is absurd on its face.
The same is true of the obstruction of justice and perjury
charges related to allowing his attorney during the Jones
deposition to make false and misleading statements with regard
to Ms. Lewinsky's affidavit and then lying about not even
paying attention to the attorneys' exchange with the judge on
this matter. The record is clear. You watched the videotape on
it. Inferences are perfectly appropriate to be drawn from body
language. You saw it on the videotape. You saw it. No more
witnesses are needed. The President committed these crimes.
On the other hand, we believe we need to bring in witnesses
to resolve conflicting testimony to give you a true picture of
the President's scheme to lie and conceal evidence for the
other obstruction of justice charges and certainly for the last
perjury charge. They are more complex. They are more dependent
on circumstantial evidence and inferences you logically have to
draw. And that is why you need to hear from Monica Lewinsky,
Vernon Jordan, and Sidney Blumenthal, to tell you about these
things themselves.
When you do, you are just plain going to get a different
flavor; you are going to feel the sense of this. We believe you
will find at the end of the day, once you have done that, even
though you don't need to use this standard, that the President
is guilty of the entire scheme we presented to you in every
detail beyond a reasonable doubt.
Remember, you don't need to convict him to find him guilty
of all of the crimes we have suggested by any stretch of the
imagination. You don't need to use the beyond a reasonable
doubt standard. That is not required of you. But we can
understand why many of you or some of you might.
The reality is that you are in a position where you need to
make these determinations, and to make them you need to have
the witnesses. In any courtroom where you are going to
certainly judge something beyond a reasonable doubt, you need
to assess the credibility of the witnesses where you have
conflicting testimony.
One point in that regard, too, is, we have heard White
House counsel say a number of times that somehow the fact that
there is so much conflicting testimony makes our case weaker.
That is not so. Again, unless the bad guy admits he is guilty,
when you go to trial in a criminal case, you always have
conflicting testimony, at least you certainly have the accused
denying it, and very, very frequently, most often, you have a
lot of other people who are conflicting.
The fact that there is conflict is something for the triers
of fact to resolve but, again, resolve by listening to the
witnesses, checking their demeanor, watching their body
language, determining their credibility, feeling the case-flow,
seeing how it fits together, and watching.
I am not going to be the one describing what Monica
Lewinsky is going to show you if she comes in here. I am going
to tell you, even if we depose her, having had the opportunity
to talk with this intelligent and very impressionable young
woman the other day, she will convey this story to you in a way
that it cannot be conveyed off a piece of paper. It just cannot
be done.
I suppose that is why the White House counselors are so
afraid of our calling any witnesses. They don't want you to
have the opportunity to get the full flavor if not only you let
us take the depositions but you at least let us call her live
here on the floor, preferably with our other two witnesses as
well.
They know that the written record conceals this. There is
no way to lift that out. There is no way for you to see the
relationship, how she responds to the questions, how she
answers, how she conducts herself in making very apparent what
the President's true meaning and intent was.
If you remember, a lot of this is his state of mind. In the
not too distant future, Monica Lewinsky is going to be free of
the gag order and is going to go out and talk to people freely.
She should. At that point in time, she is going to have the
public judging her, and they are going to be judging this case,
as will history, and I suggest that the public at that point in
history as well will be judging you and not judging the Senate
well if it doesn't let her come here and testify.
Let me briefly turn to the last thing I want to do. I want
to describe the three additional pieces of new evidence we
would like admitted in this motion.
First is the affidavit of Barry W. Ward who had been a law
clerk to Judge Wright during the consideration of the Jones
case. None of this, I think, should be controversial, but we do
have it, and I want to cover it briefly. In his affidavit, he
attests to the fact that at President Clinton's deposition in
the Jones case, he, Mr. Ward, was sitting at the conference
table next to Judge Wright; that he was able to observe the
colloquy between the judge and Mr. Bennett.
You recall, Mr. Bennett was engaged in this colloquy about
the affidavit of Monica Lewinsky. And that is what you saw, the
film footage of the President and the questions. Was the
President observant? Was he watching? Was he keen? That
affidavit goes to that point. It is the testimony of Mr. Ward
with regard to the fact that the President was observant.
Secondly, we have a piece of new evidence, and that is the
declaration of the Jones attorney, T. Wesley Holmes, and the
attached copies of the subpoena in that case, the subpoena in
that case to Betty Currie, dated January 22, 1998, along with
proof of service, dated January 27, 1998.
Mr. LEAHY addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Vermont.
Mr. LEAHY. Mr. Chief Justice, parliamentary inquiry. It is
my understanding that Senate Resolution 16 says----
The CHIEF JUSTICE. The Senator from Vermont is advised it
takes unanimous consent to allow a parliamentary inquiry in the
proceeding.
Mr. LEAHY. Mr. Chief Justice, I object to the references
the manager is making to new information. It is my
understanding that from Senate Resolution 16, the material
outside the record may only be presented in connection with a
motion to expand the record. This new information--we have
skirted it already with the Lewinsky interview this weekend,
but now the latest that Mr. Manager McCollum states, I would
say respectfully, expands that record and, indeed, we are not
at that point.
The CHIEF JUSTICE. Yes. I think the motion that the
managers have made is a motion to authorize the presentation of
evidence that is not in the record. And so I think that is a
fair comment. I overrule the objection.
Mr. LEAHY. I thank the Chief Justice.
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
The attachments to Mr. Holmes' declaration is the proof of
the subpoena being issued to Betty Currie on January 22, 1998,
along with service in the Jones case on January 27, 1998, and a
copy of the supplemental witness list, including the name of
Betty Currie, which was served on January 23, 1998. And in his
declaration, Mr. Holmes explains that Ms. Currie was subpoenaed
because of testimony given by President Clinton in his
deposition and because of reliable information which the
attorneys had received to this effect--that Ms. Currie was an
instrumental person in facilitating Monica Lewinsky's meetings
with the President and central to their ``cover story,'' as Mr.
Holmes refers to it. He explicitly denies that any ``Washington
Post'' article played any part in the decision of the Jones
attorneys to subpoena Ms. Currie.
The third and final piece of new evidence that we ask you
to take in and accept is a declaration and accompanying
documents with regard to a telephone conversation showing that
a conversation occurred on December 6 for 56 minutes between
the President and Ms. Lewinsky, which we believe is what it
shows. Obviously, the phone records show the phone records. And
they state what they are. But we suggest to you that that is
relevant information because it confirms what we think the
testimony in the record otherwise would lead you to believe.
At this point in time, having given you an overview and
having given you this amount of new evidence, I want to turn
the microphone over and yield to my colleague, Mr. Bryant, the
rest of the time.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Bryant.
Mr. Manager BRYANT. Mr. Chief Justice, may I inquire as to
our time remaining?
The CHIEF JUSTICE. Just under 90 minutes.
Mr. Manager BRYANT. Thank you, Mr. Chief Justice.
Distinguished Senators, a recent letter from Manager Hyde
to Senator Daschle stated that it has always been the position
of the House managers that a trial with the benefit of relevant
witnesses is in the best interest of the Senate and the
American people. The defense attorneys for the President, as
well as others in this body, have publicly stated that they do
not want witnesses.
Through the question-and-answer session that we have just
participated in over the last few days, some in this body have
made it clear that they would prefer a few sharply focused
witnesses limited only to the most relevant evidence. We heard
this. And as a result of our submission this morning, you will
see that we have proposed three witnesses.
Now, as background, we have brought this down from some 15
witnesses that we initially thought we would like to call. We
eliminated, obviously, many witnesses that we would still like
to call. But with respect for this body, and certainly the
sensitivity that we feel, we heard that three witnesses would
be probably the best situation.
I think from, again, the tone of the questions, the
directness of many of the questions, we did get that message
clearly. And from these three witnesses we believe we have the
broadest coverage of the two articles of impeachment.
Within the obstruction article, there are in essence seven
so-called counts, seven instances that we allege. With these
three witnesses, we manage to cover six of those seven, with
the one that we don't quite cover being the tampering with
Betty Currie. As you will note, she is not on that list. But,
again, bringing this down to three, we had to eliminate some
witnesses we would have preferred to call.
Also, based on what we have read and what we have heard, it
is clear that a very few have already determined that even
assuming the truth of the articles of impeachment--the perjury
and obstruction of justice--they are insufficient to convict
this President of high crimes and misdemeanors. Since each of
you, as Senators, must consider this matter and vote your own
conscience with impartial justice, that is apparently your
individual decision, although, with all due respect, I would
suggest a premature decision before all the proof and all the
arguments are made.
One example of not having heard a complete case is Ms.
Lewinsky. She is probably the most relevant witness, that is,
aside from the President himself, who so far has indicated
through his counsel that he will not testify; and I might add
also has not answered the questions that at least some Senators
sent to the White House for his answering, based on his
attorney's statement that he would be willing to answer
questions.
So with that aside, Ms. Lewinsky is probably the most
important witness left. Wouldn't you at least want to see and
hear from her on this? As the triers of fact, wouldn't you want
to observe the demeanor of Ms. Lewinsky and test her
credibility--as I say, look into the eyes and test the
credibility of these witnesses? Compare her version of the
testimony to the contested events. Remember, the President's
attorneys, in numerous ways, in their vigorous defense of the
President, have challenged Ms. Lewinsky's version of the facts.
I believe the majority of other Senators have not yet
reached a final determination, and it is to you now that I make
this further proposition. If there is one witness you and the
American people honestly do need to hear, it is Ms. Lewinsky.
As you probably read in the newspapers, her lawyers don't want
her to testify. They are good lawyers, and they don't want to
have her out here.
Despite the protestations of the White House and their
attorneys during the House hearings that they wanted to hear
fact witnesses, we now know absolutely and without a doubt the
White House does not want to hear Ms. Lewinsky--does not want
you to hear Ms. Lewinsky, and Ms. Lewinsky, if the truth be
known, probably does not want to come in here and testify.
These are not our witnesses. We didn't get this case in a
brown envelope. We sort of didn't have any choice in selecting
the witnesses. The witnesses are all out there--basically White
House employees, friends of the White House, or former
employees. These are not going to be our friends if they come
in and testify. They are not going to be sympathetic to us,
although we can anticipate that they would tell the truth. And
that certainly would be our belief with Ms. Lewinsky if she
were called.
We believe she understands her responsibility, despite any
feelings that she might have about the President or the job
that he is doing as President; that she understands the
responsibility to tell the truth.
Senators, she does have a story to tell. Given the link
that she has, that common thread that she has in most of the
charges of these articles of impeachment, I suggest that she
should be permitted to testify.
A closure of this case is necessary, and without the direct
presentation by Ms. Lewinsky, we all--political and public--
would be denied the complete picture that she should be able to
give us to better sort this out. As Manager Graham said
yesterday, please don't leave us all hanging for the answers we
so dearly need.
Is this good, is it bad, or is it ugly? We managers believe
that it is bad, ugly, and illegal. We all like to talk about
the Constitution, and it is a great document. The opportunity
to confront witnesses is present in that Constitution, and it
can be argued that this principle of confrontation of witnesses
against you should apply to these proceedings. While we realize
that confrontational right is one that belongs to the criminal
defendant in the Constitution, in this case apparently any
right to confront Ms. Lewinsky and other witnesses is being
waived by the President and his lawyers since they don't want
to call witnesses in these proceedings.
Isn't it time, though, for the rest of us to make that
choice that we do want to see and hear some witnesses? Her
testimony, in particular, would be extraordinarily enlightening
in resolving factual disputes about the very felonies of which
we ask you to convict the President of the United States--
perjury and obstruction of justice. These particular charges go
to the very heart of our co-equal branch of government, the
Judiciary. Members of the Senate, in terms of the impact on our
judicial system in the search for truth, there is no difference
between a person lying, which is perjury, and a person paying
another person to lie, which is bribery. The bribery is in the
Constitution and the perjury is not specifically mentioned.
In terms of this proposition of proportionality, is the
106th Senate prepared to have as its record of sexual
harassment laws that perjury about sex is not illegal? After
all, that is what this whole proportionality argument is about,
that if it is about sex it is OK to lie. Because Senator
Bumpers said that upwards of 80 percent of his divorce cases
from his Arkansas practice of law involve lying, that does not
legitimize perjury, nor should it provide any authority for
this Senate to somehow legitimize perjury if it is just about
sex.
We allege that the President, in a reasoned and in a
calculated manner, prevented Paula Jones from obtaining
truthful testimony and evidence that might have helped her
lawsuit. At the time the President attempted his coverup
efforts, he, obviously, felt the disclosure of that information
in the Paula Jones case would be material and helpful to her.
The President not only committed himself to illegal actions but
he enlisted others to assist, some knowingly and others perhaps
unknowingly.
Ms. Lewinsky is one of these who, interestingly enough,
might fit into both categories of knowing and unknowingly at
different times. She would be able to share with this Senate
the so-called tone and tenor of her conversations with the
President. Who else can do that but she or the President?
This tone and tenor and observing her demeanor and
listening to her talk about that filing of the affidavit and
those things, how the President talked to her and how she read
what he said and exactly what he did say, are all very
important because, as we know in Washington and so many other
places where there is a lot of power and prestige, and so
forth, there are actions that can be prompted without even a
direct specific order. Things can get done without it being
said but just by the tone and tenor, the gestures, the
appearance, and so forth, of certain things. Often these direct
words, as I said, are not necessary. And Ms. Lewinsky can tell
you about some of these occasions.
An appropriate examination--and an appropriate cross-
examination, I might add; let's don't limit the White House
attorneys here--of Ms. Lewinsky on the factual disputes of the
affidavit and their cover story, wouldn't that be nice to hear?
The concealment of gifts--what really happened there and the
job search--why did she get the job within 48 hours of the
affidavit, after months of unsuccess?--wouldn't it be nice to
hear Ms. Lewinsky's version of this when it is so important to
the overall case of obstruction of justice?
These are just a few examples where the Senate could be
helped by her testimony, and it very well could be dispositive.
It is even possible that she could help the President in some
ways. But I assure you that she is an impressive young lady,
and I suspect that she still very much does admire the
President and the work that he is doing for this country. Yet
she would be a person who in all likelihood would be
forthcoming.
If you have not made up your mind and, indeed, if you have
further interest in resolving many of the facts here, I do
commend Ms. Lewinsky for your consideration. It would be my
intent to lead her through direct examination, the perjury
charge, as it is alleged with the President, by having her
simply affirm those provisions of her written testimony which
are the ones that are generally referred to as salacious,
without specifically mentioning those words.
On the more complicated obstruction of justice, the pattern
of obstruction of justice which does not involve these
salacious details and matters, they will be addressed more
specifically. It would be my intent for immediate clarification
and to dissolve discrepancies and different inferences that
have been drawn by House managers and defense counsel for the
President to ask her about the December 28 transfer of Ms.
Lewinsky's gifts from the President--transfer to Ms. Currie,
particularly the cellular telephone call that has been put into
issue by the defense team, about her conversation with the
President and her offer to allow him to review this false
affidavit before she submitted it to her lawyer and eventually
to the court, and his comment that he didn't need to review it
because he had seen 15 others just like it. Wouldn't you like
to know what are we talking about--15 others? Fifteen drafts or
15 other types of affidavits in other cases?
She would also be asked about her job interviews and her
discussions with the President about these job interviews over
a period of time, which are very important, her discussions
with Vernon Jordan, and specifically why she felt that the
interview she did with Revlon the day after she signed the
affidavit, her impression that it went poorly, whereas we
heard--not testimony but statements in the presentation of
White House lawyers that, in fact, it didn't go poorly, it went
very well, but she felt it went so poorly that she went
immediately out to call Vernon Jordan. Why? Why not have her
come in and tell us why she did that.
There will, of course, be other matters of record that she
can clarify. Being available to the White House defense team,
certainly she will be vigorously cross-examined. I am sure that
might also clarify other matters.
It is my feeling that a fair and comprehensive examination
without interruption could be conducted of Ms. Lewinsky in 2 to
4 hours, and depending on the length of cross-examination by
White House attorneys, we may not need any redirect
examination.
While defense counsel for the President and others for the
President--I heard it so many times, I am not sure exactly who
said this so I don't want to attribute it to defense counsel,
and maybe they haven't even said it, but there has been word
out of the White House that if we call one witness, we might as
well settle into a siege here in the Senate; we will be here
for months and months and months. I suggest it is an outrageous
statement that we will need that amount of time to pursue this
case if witnesses are called.
We are confident that, basically, in its best case is an
attempt to discourage you from calling witnesses, and in its
worst case, unfortunately, is a veiled threat that they will be
dilatory and drag this out for months and months if the Senate
would so allow.
The House managers are establishing a good-faith effort to
cut our witnesses, as I said, down to three people, and to
commit to reasonable times of examination with the assurance
that we will finish this as quickly as we can and we will hope
and perhaps the Senate their defense team.
Witnesses can be called and a fair trial could be
accomplished if all concerned would agree. Would the Senate
consider requesting the President's defense team to also select
three or fewer witnesses in an effort to move this process
along? As to the depositions, while they are important, if they
are solely for the purpose of discovery, I ask, why would the
White House need to discover what Vernon Jordan has to say,
what Betty Currie has to say, or Sidney Blumenthal, or John
Podesta--any of these witnesses? They would have to take Monica
Lewinsky's deposition, but any other discovery deposition, it
seems to me, they have complete access to already.
As I close, I want to leave you with some words that have
been of some comfort to me, and I think we have all needed some
comfort at times during these proceedings. It is a very short
quote of the opening remarks of Judiciary Committee Chairman
Peter Rodino in 1974. Again, in part, he said:
We know that the very real security of this Nation lies in
the integrity of its institutions and the informed confidence
of its people.
He talked about the Nixon hearings.
We will conduct our deliberations in that spirit. It has
been said that our country, troubled by too many crises in
recent years, is too tired to consider this one. In the first
year of the Republic, Thomas Paine wrote, ``Those who expect to
reap the blessings of freedom must, like men, undergo the
fatigue of supporting it.''
Back to Rodino:
Now for almost 200 years, Americans have undergone the
stress of preserving their freedom and the Constitution that
protects it. It is now our turn.
Ladies and gentlemen of the Senate, I respectfully ask you
to permit the House managers to call these three named
witnesses and add this additional evidence.
I thank you. I yield to Mr. Manager Hutchinson.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and
gentlemen of the Senate, my responsibility is to address the
testimony of Vernon Jordan and the need to call him as a
witness in this case.
Before I go into the details, let me just reflect for a
moment on the Senate trial process. I said many days ago that I
had confidence in the U.S. Senate, and I thought that at this
particular juncture it might be good if I reassure you that I
still have confidence in the U.S. Senate. When I think about
the trial process that we are going through, I have to
compliment you on the fact that you have structured a
bipartisan process. I think that is important because you gave
this process credibility. So you did the right thing, and I,
for one, am pleased with what you were able to accomplish in
that endeavor.
Now, whenever you achieve a bipartisan process, you have to
make compromises along the way. And the result is a format that
is not particularly helpful to the trial managers, the House
managers, who wish to call witnesses. We have struggled through
that. But notwithstanding the present difficulty, I still
compliment you and thank you for what you have done in
achieving that bipartisan consensus. I think back to that
meeting that I and some other managers had early on with the
bipartisan group of Senators from this body--and I now look at
some from both sides of the aisle--and I went in there with
this high-minded thought that we could make a case for
witnesses because of what the other managers have described as
the tone and demeanor of witnesses. Well, that was quickly
brushed aside by them saying, ``No, no, no, we want to hear
about what conflicts exist in the testimony; just tell us what
the conflicts are because that is a strong case for calling
witnesses.'' Well, that threw me back on my heels. So I went
back and, as you know, in the question and answer session I
addressed the question of conflicts. I think we did a good job
of outlining the conflicts between various witnesses.
Well, then I was informed that, ``We really are not as
interested in the conflicts because the conflicts exist in the
current transcript. Therefore, really, we want to know what new
information and what dynamic these witnesses can add.'' That
threw me a curve. So we looked at this again and we tried to
make a case.
I'm going to show you what new dynamics and questions can
be asked. Ultimately, when you take the depositions, many of
those questions are going to be answered. So you come back full
circle to where we started in the beginning--that ultimately I
hope witnesses are called so you can evaluate their
credibility, determine their demeanor, and assess the truth in
this case. I think that is important. I know people talk about
me as being a former Federal prosecutor. Actually, at one time,
I confess, I represented a defendant in a murder case. This
gentleman was charged with murder, and the prosecution in Logan
County, Arkansas--near Senator Bumpers' hometown--decided they
wanted to handle one of the key witnesses by deposition, as
that person was out of State. I objected and objected because I
thought that witness ought to be in the courtroom. The judge
overruled me and said, ``You can go take the deposition and the
defense counsel will be there to cross-examine.'' So we
traipsed off to the other State and took this witness'
deposition, and she made a lousy witness. I said she would not
be believed for anything because of the way she appeared. Well,
we brought the transcript back to the courtroom. The
prosecution, over my objection, put the transcript into the
record and, all of a sudden, that cold transcript was
believable--particularly when they had it read by another
witness that didn't look anything like the original lady. My
client was convicted, but that case was reversed in the
Arkansas supreme court because the court said it was important
that the jury look into the eyes of the witness, see the
demeanor of that witness, and determine the credibility.
So ultimately, we come back to that same point--that
somehow you are going to have to resolve the conflicts. I know
of only one way to do it. We have tried to be extraordinarily
helpful and cooperative with the U.S. Senate. I came in with
this idea that we were going to present this case with 14 or 15
witnesses. Clearly, that is off the table. We narrowed it down
to three witnesses. That was tough to decide. But we believe
that represents the basic heart of the obstruction of justice
case and gets to at least six of the seven elements so that you
can evaluate them. But we want to assist you, clearly, in
getting to the truth but also to bring this matter to a
conclusion fairly and as expeditiously as possible.
Let's look to Mr. Vernon Jordan. Should he be called as a
witness in this case? His testimony goes to the heart of one of
the elements of obstruction of justice, that is, the job search
and the false affidavit, and the interconnection between those.
I have tried, during my presentation of this case, to present
portions of his testimony--excerpts, if you will, from his
testimony. But you will see that he has testified five times
before the Federal grand jury. I have read all of this. I am
not going to ask for a show of hands, but how many of you have
read all of this? And so you have had to rely upon a trial by
ordeal by lawyers--rather than a trial by witnesses because I
have had to present the testimony of Vernon Jordan in excerpt
fashion with limited quotes here and there--as the defense
counsel has done. That makes it difficult because the problem
is, one, you are hearing it from her, but, second, it is not a
story; it is excerpts, and there is no way you can assess the
truth because of that.
Look at the times Mr. Jordan has testified before the grand
jury: March 3, 1998; March 5, 1998; May 28, and June 9; the
last time he ever testified was June 9, 1998. Let's look at
what has happened since then, since Mr. Jordan last testified
before the grand jury. I believe these charts are in front of
you.
On July 22, Ms. Currie testified before the grand jury. So
any of the facts we gain from Ms. Currie were not utilized in
the last examination of Vernon Jordan.
August 6, what happened on that date? Ms. Lewinsky
testified before the grand jury and she revealed some new facts
during that time that Mr. Jordan never had an opportunity to
explain, respond to, or answer. I will go into that. One of
them is about disposing of notes. The second one is about
drafting the affidavit. And, of course, by that time the DNA on
the dress had been revealed.
Then the next thing that happened was the President's
revelation to the Nation that this relationship did exist. Then
he testified before the grand jury. All of the facts revealed
from those instances were not revealed at the time Vernon
Jordan last testified before the grand jury.
Obviously, any lawyer would understand there are naturally
questions that arise from each of those incidents that could be
posed to Mr. Jordan. Why has that not been done? Quite frankly,
I have talked to, as I mentioned the other day, the attorney
for Mr. Jordan. I have not talked to Mr. Jordan personally. I
think that clearly the Senate does not want us to do that until
we get past this next hurdle. But those are the things that
need to be resolved.
Let me address briefly three areas of conflicts in
testimony between Mr. Jordan and Ms. Lewinsky that point up
other areas of questioning that would be appropriate and he
should have the opportunity to explain.
I have been accused of being harsh to Mr. Jordan, and I
don't mean to be that way. There have been certain things that
have been stated by witnesses in this case that ought to be
explained, that ought to be asked of Mr. Jordan. But we need to
have good answers to these questions. We need to know those
answers.
The first conflict--I will get to that--is between Mr.
Jordan's testimony and Ms. Lewinsky's testimony about whether
Mr. Jordan knew the true nature of the relationship with the
President.
In Mr. Jordan's testimony of May 28, he was asked a
question: ``You're saying no one to your recollection ever
suggested or alleged a sexual relationship prior to the 18th of
January between Monica Lewinsky and the President?'' The
answer: ``That is correct.''
That was on May 28. Ms. Lewinsky was asked the same series
of questions months later--in August of 1998--and she
testified, ``And I remarked that I really didn't look at him as
the President'' that, ``I saw him more as a man and reacted to
him more as a man and got angry at him like a man and just a
regular person. Mr. Jordan asked me what I got angry at the
President about. So I told him when he doesn't call me enough
or see me enough.''
Another statement:
And so after we had the conversation I was just talking
about with Mr. Jordan, he said to me, ``Well, you know what
your problem is,'' and I said, ``What?'' He said, ``Don't deny
it,'' and he said, ``You're in love. That's what your problem
is.''
This is Monica Lewinsky referring to what Mr. Jordan had
said.
So clearly those are relevant questions that need to be
readdressed to Mr. Jordan because they were raised by Ms.
Lewinsky in subsequent testimony; they have never been asked to
him in that fashion.
There is a conflict in the testimony between Mr. Jordan and
Ms. Lewinsky about whether the subpoena was discussed at the
December 22 meeting. Mr. Jordan testified in March that ``we
did not talk about the subpoena. She wanted to know about her
job. That was the purpose of her coming.'' And the question
was: ``Anything beyond that?'' The answer was: ``No.''
And that is March 6, 1998. Ms. Lewinsky testified to the
contrary.
Let's turn our attention then to December 22, which is the
day she met with Frank Carter: ``And I think you said you were
going to meet with Mr. Jordan.'' Answer: ``So I came to see Mr.
Jordan earlier, and I also wanted to find out if he had in fact
told the President that I had been subpoenaed.''
That was her testimony which is in direct conflict--that
the subpoena was discussed on the same day that she went to see
Mr. Carter about the representation.
Where is the relevance in this?
If you recall, Mr. Jordan said it didn't take an Einstein
to figure out that, whenever you combine whenever she got the
subpoena, it changed the circumstances.
Here you have three problems. You have a job search, you
have a witness in court, and if you combine that with the
knowledge of a relationship, those are three dynamite issues
that should cause alarm--not just one change of circumstances
but it elevates it to a higher level of danger because of the
correlation between each of those three separate facts, each of
these conflicts. The testimony of Monica Lewinsky goes to those
key fundamental issues, and Mr. Jordan has never been asked
sufficiently about those areas.
The third conflict--this is key--is the testimony of Monica
Lewinsky. Mr. Jordan testified that he never talked to Ms.
Lewinsky about Linda Tripp. That is his March 5, 1998,
testimony. But Ms. Lewinsky testifies in her August 6 testimony
about a meeting with Mr. Jordan on December 31.
This is the third exhibit. I will read that:
And I met Mr. Jordan for breakfast on . . . the morning of
[December] 31st, at the Park Hyatt Hotel. And in the course of
the conversation I told him that I had had this friend, Linda
Tripp . . . and I was a little bit concerned because she had
spent the night at my home a few times and I thought--I told
Mr. Jordan, I said, well, maybe she's heard some--you know--I
mean, maybe she saw some notes lying around. And Mr. Jordan
said, ``Notes from the President to you?'' And I said, ``No,
notes from me to the President.'' And he said, ``Go home and
make sure they're not there.''
This is Ms. Lewinsky's testimony of August 6 before the
grand jury.
And before anything is said, I am not accusing anyone of
anything, but let me tell you, it would be significant if Mr.
Jordan is asked a question if that is a true statement and he
says yes. It is significant to the case. If he says no, that is
significant because there is a clear conflict in the testimony
of Ms. Lewinsky. And her testimony goes to the heart of the
issue. If he says, ``I don't remember,'' which is a third
alternative--by the way, I hate giving these prospective
witnesses all my questions--but if he says, ``I don't
remember,'' that does not put the issue in dispute with Ms.
Lewinsky and establishes really her recollection of the
incident.
So I could go through more, I could go through more
conflict with Ms. Lewinsky about whether Mr. Jordan saw the
unsigned draft copy of her affidavit, a key issue in this case.
Ms. Lewinsky testifies one way. Mr. Jordan did not have the
benefit of Ms. Lewinsky's testimony when he was asked earlier
in the grand jury. So that needs to be addressed with him.
There is a conflict with Ms. Lewinsky on whether they
discussed the contents of the affidavit--not just whether they
saw the signed affidavit but whether the contents were
discussed. The question to Mr. Jordan was: ``Did you ever
discuss with Ms. Lewinsky what she was going to include in the
affidavit?'' Answer: ``I was not Ms. Lewinsky's lawyer. The
answer to that is no.''
But he goes on and elaborates on that. Ms. Lewinsky
testified that she and Jordan did have a conversation about
deleting a certain sentence in the affidavit and reworking
that.
That is what I just covered on the contents of the
affidavit.
Let me just go to one other on the conflict where the
affidavit was discussed at their last meeting. Mr. Jordan
testified in March that she came into the office:
She gave me a tie. I said, ``Monica, I am really busy,
thank you.'' And she thanked me, and she is gone.
``Any subsequent conversation?'' The answer: ``No.''
Ms. Lewinsky's testimony is:
I stopped in to see him for five minutes to thank him for
giving me the job, and I gave him a tie.
She further testified:
I believe I showed him a copy of the affidavit.
Clear conflict, very important, once again showing a
connection between the job, the false affidavit, and, of
course, if you tie in the other aspect about the relationship,
it gets very significant and something that needs to be further
inquired about.
So there are some of the conflicts between the testimony
and an area that we need to inquire of Mr. Jordan about.
The notes to the President that Ms. Lewinsky said she had a
conversation with him about, that has never been addressed to
Mr. Jordan whatsoever.
The December 19 meeting we need to explore more with Mr.
Jordan. This is the meeting when Ms. Lewinsky was subpoenaed.
She called Mr. Jordan. He says, ``Come over.'' She goes over
there to meet with Mr. Jordan, and during that meeting,
according to the telephone logs, Mr. Jordan received a call
from the President of the United States. Mr. Jordan has
testified that he told the President that Ms. Lewinsky got
subpoenaed.
That appears to be exactly during the meeting--the
conversation he is having with Ms. Lewinsky.
I think appropriate questions to Mr. Jordan are: Did you
excuse Ms. Lewinsky from the meeting? Did you have a private
conversation with the President about the subject that you were
talking to Ms. Lewinsky about? And when you renewed your
conversation with Ms. Lewinsky, did you in fact tell her about
your conversation with the President? If Ms. Lewinsky was not
told about that conversation, I think there is some
significance there, that things were going on that people were
compartmentalizing and not sharing with the other interested
parties, and I think that is significant and that needs to be
explored. His involvement with reviewing the affidavit needs to
be developed, and the conflicts, his knowledge of the nature of
the relationship with Ms. Lewinsky.
So all of these need to be further explored. There are a
number of unanswered questions.
One final area. I obviously have a number, but I don't want
to belabor this point. There was testimony I mentioned about
Mr. Isikoff and how Betty Currie felt compelled to see Mr.
Jordan about Mr. Isikoff inquiring about the courier records on
the gifts from Ms. Lewinsky to the President. There is some
indication that that information might have been shared with
Mr. Frank Carter because Ms. Lewinsky testified that she
received a page from Mr. Carter, her attorney, about the
Isikoff call, the Isikoff request. How did that information get
to Mr. Carter? I think there are some legitimate questions that
should be asked.
So we would respectfully ask the Senate to permit us to
call Mr. Jordan as a witness, to depose him. But, further, we
hope we will be able to call him so that you can evaluate the
conflicts that I am sure exist now, that very likely will exist
later on as well. The story needs to be told. The truth should
be determined. Justice should be accomplished. That is done not
through lawyers up here talking, it is not done through
transcripts but through witnesses. Edmund Burke said that to
fail to hear the evidence is to fail to hear the cause. I know
that you have transcripts, but I would contend to you that to
fail to hear these witnesses is in essence to fail to hear the
cause.
Recess
Mr. LOTT. Mr. Chief Justice, could I inquire about the
balance of the time remaining for the House managers?
The CHIEF JUSTICE. Yes. The managers have 52 minutes
remaining.
Mr. LOTT. Do they intend to use more of their time now?
Well, Mr. Chief Justice, I ask unanimous consent that we
take a 30-minute break at this point.
There being no objection, at 1:22 p.m., the Senate recessed
until 1:59 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Unanimous-Consent Agreement
Mr. LOTT. Mr. Chief Justice, I have a unanimous consent
request to propound. We have discussed this with Senator
Daschle and it has been cleared.
I ask unanimous consent that following the conclusion of
the arguments by the managers and the White House counsel today
on the motion to subpoena witnesses, it be in order at that
point only for Senator Harkin or Senator Wellstone to make a
motion to open that debate pursuant to his motion timely filed,
and that the Senate proceed immediately to the vote, pursuant
to the impeachment rules.
I further ask that following that vote, if defeated, it be
in order to move to close the session for deliberations on the
motion to subpoena witnesses, as provided under the impeachment
rules of the Senate, and proceed to an immediate vote.
If we have any change in either one of these, certainly we
would have to ask for consent on that and would notify Members
to that effect.
I further ask that if the Senate votes to proceed to a
closed session, those deliberations be limited to 3 hours
equally divided between the two leaders, notwithstanding the 5-
minute allocation of time under the impeachment rule.
I further ask unanimous consent that when the Senate
concludes its business today, it stand in adjournment until 1
p.m. on Wednesday, January 27.
Finally, I ask unanimous consent that pursuant to S. Res.
16, the votes occur immediately upon convening on Wednesday,
first on the motion to dismiss and, if defeated, the motion to
subpoena witnesses without intervening action or debate.
The CHIEF JUSTICE. In the absence of objection, it is so
ordered.
Mr. LOTT. I believe, Mr. Chief Justice, we are ready to
proceed with White House counsel.
The CHIEF JUSTICE. The Chair recognizes Mr. Counsel
Kendall.
Mr. Manager ROGAN. Mr. Chief Justice, we reserve our time.
The CHIEF JUSTICE. Very well.
Mr. Kendall.
You are going to use it now? You have 52 minutes remaining.
The Chair recognizes Mr. Manager Rogan.
Mr. Manager ROGAN. Thank you, Mr. Chief Justice, Members of
the Senate. When I was a trial judge back in California, there
was something I had to do in every single case, whether it was
a criminal or civil case, and that was to advise the triers of
fact--in that particular case, the jury--that what the lawyers
said was not evidence. This is a universal warning that is
given in courtrooms throughout the country to the triers of
fact because the law prefers that those people who have to make
the determination as to what the facts are make that
determination based not only on interpretation of the evidence
but based upon what the evidence ac-
tually is. And that has been the underpinning of our argument
before this body from the very first day as to why witnesses
are needed--not to accommodate us but for the Senate to be able
to make the ultimate conclusion as to what is the truth.
A perfect example of why the evidence should come from
witnesses rather than lawyers can be seen from the fact that
throughout these proceedings lawyers on both sides have tried
to characterize what is the evidence and tried to characterize
the interpretation that this body should adopt.
I am reminded when we were before the Judiciary Committee,
just before we voted articles of impeachment, White House
counsel suggested to our committee, as they do before this
body, that the President's state of mind during his various
statements under oath was he intended to mislead people but to
be truthful. They say the President didn't lie. Instead, they
say he carefully crafted these hypertechnical definitions to
protect himself from any perjury charge.
We believe the evidence will show that by so doing, Paula
Jones was denied the information a Federal judge said she was
entitled to have and, thereby, perjury and obstruction of
justice lie.
Before the Judiciary Committee, Mr. Ruff reaffirmed this
was the President's strategy. This is what Mr. Ruff told our
committee:
Question to Mr. Ruff:
I do want to make sure I understand your position. From the
beginning, the President has taken the position that he never
lied to the American people or lied while giving testimony
under oath. Essentially claims he simply misled [them] with a
different definition, and he was sending the same message both
to the American people and the court.
Answer by Mr. Ruff:
I think that is fair, Congressman. Yes.
Question:
And he did that intentionally, because in his own mind he
drew a distinction between the technical definition of ``sexual
relations'' and the definition of ``improper relationship,'' or
something along those lines, which is how he now characterizes
his relationship with Monica Lewinsky?
Answer by Mr. Ruff:
Yes, I think that's correct.
Question:
You suggested earlier in your testimony this distinction is
one he has drawn since the Jones deposition. My notes indicate
you said the definitions are one that he held in his mind in
January and in August and he has so testified.
Answer by Mr. Ruff:
Yes.
Question:
In determining whether the President either perjured
himself or lied under oath in this matter, you are asking the
committee to look to his state of mind from the beginning of
this whole episode and make that determination?
Answer:
Yes.
Members of this body, we suggest the evidence has shown,
and the evidence will further show by the calling of the
witnesses that we propose, that the President denied under oath
specific facts that were relevant to the case, relevant to the
Jones case, relevant to the perjury and obstruction
investigation by the grand jury, and in so doing, among the
other lies that my colleagues have pointed out, we will show
that he lied to his aides.
This is important, because he, the President, admitted he
knew that his aides were potential witnesses in a criminal
investigation before the grand jury. This is the portion of the
grand jury transcript where the President testified about his
conversations with key aides once the Monica Lewinsky story
became public.
Question to the President:
Did you deny it to them or not, Mr. President?
A. . . . I did not want to mislead my friends, but I wanted
to find language where I could say that. I also, frankly, did
not want to turn any of them into witnesses, because I--and,
sure enough, they all became witnesses.
Q. Well, you knew they might be witnesses, didn't you?
A. And so I said to them things that were true about this
relationship. That I used--in the language I used, I said,
there's nothing going on between us. That was true. I said, I
have not had sex with her as I defined it. That was true. And
did I hope that I would never have to be here on this day
giving this testimony? Of course. But I also didn't want to do
anything to complicate this matter further. So, I said things
that were true. . . .
The President's position is they were misleading, but they
were true. No lies. That is precisely what Mr. Ruff told the
Judiciary Committee, and that is the position that White House
counsel takes before this body.
Remember, the grand jury was conducting a criminal
investigation. They were seeking evidence of possible perjury
and obstruction of justice, and the White House contends before
this body that the President did nothing to obstruct their
investigation. The evidence shows that he did. One of those
witnesses who will demonstrate that to this body is the
President's own aide, Sidney Blumenthal. That is why we request
this body to allow Mr. Blumenthal to be deposed. Further, we
hope that you will allow him the opportunity to testify before
you so that you can gauge his credibility and his demeanor as
he presents the answers that we expect he will give.
Mr. Blumenthal's testimony puts him in direct conflict with
the claims of the President and shatters the myth of the
President's truthful but misleading answers given under oath.
Just for a quick way of background, Mr. Blumenthal, on
January 21, 1998, was an assistant to the President. That was
the day the Monica Lewinsky story broke in the national press
through the Washington Post. That story broke in the morning.
Later the same day, Mr. Blumenthal met both with the First
Lady and then with the President to discuss these news
revelations. One month later, Mr. Blumenthal was called to
testify before the grand jury. His testimony was not
particularly helpful during that time because, through most of
the questioning that involved conversations that he had at the
White House, Mr. Blumenthal claimed executive privilege.
That issue was apparently litigated, and then he returned
in June to testify before the grand jury twice, on June 4 and
on June 25, 1998.
When Mr. Blumenthal was free to share his recollections of
the events, this is how Mr. Blumenthal characterized his
meetings with President and Mrs. Clinton before the grand jury.
It is interesting to note, by the way, that there was a dual
lie going on here from the President. The President was lying
to his wife, who could never be called as a witness against
him, but he was also lying to his aides whom he admitted could
be called.
This is from Mr. Blumenthal's testimony on June 4.
The First Lady said that she was distressed that the
President was being attacked, in her view, for political
motives, for his ministry of a troubled person. She said that
the President ministers to troubled people all the time . . .
and he does so out of religious conviction and personal
temperament. . . .
And the First Lady said he had done this dozens if not
hundreds of times with people, the President came from a broken
home and this was very hard to prevent him from trying to
minister to these troubled people.
So I related that conversation to the President. . . . And
I said to him that I understand that you . . . want to minister
to troubled people, that you feel compassionate, but that part
of the problem with troubled people is that they're . . .
troubled. . . .
I said, ``However, you're President and these troubled
people can just get you in incredible messes . . . you have to
cut yourself off from them.''
And he said, [meaning the President, he said,] ``It's very
difficult for me to do that, given how I am. I want to help
people.''
Then Mr. Blumenthal testified that the President said Dick
Morris suggested that the President go on television and admit
in a national address whatever he may have done wrong.
Once again Mr. Blumenthal testified:
And I said to the President, ``What have you done wrong?''
And he said, ``Nothing. I haven't done anything wrong.'' [And]
I said, ``Well, then, that's one of the stupidest ideas I've
ever heard. Why would you do that if you've done nothing
wrong?''
And it was at that point that he gave his account of what
happened to me and he said that Monica--and it came very fast.
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 the stalker
anymore.
And I repeated to the President that he really needed never
to be near people who were troubled like this, that it was
just--he needed not to be near troubled people like this. And I
said, ``You need to find some sure footing here, some solid
ground.''
And he said, ``I feel like a character in a novel. 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. I feel
like the character in the novel Darkness at Noon.''
And I said to him, I said, ``When this happened with Monica
Lewinsky, were you alone?'' He said, ``Well, I was within
eyesight or earshot of someone.''
I said, ``You know, there are press reports that you made
phone calls to her and that there's voice mail. Did you make
phone calls to her?''
He said that he remembered calling her when Betty Currie's
brother died and that he left a message on her voice machine
that Betty's brother had died and he said she was close to
Betty and had been very kind to Betty. And that's what he
recalled.
And then in his June 24 deposition, Mr. Blumenthal expanded
on this thinking. He was asked the question:
In your conversation with the President when he stated that
Monica Lewinsky threatened to disclose an affair, or fabricate
an affair in a public disclosure, did you understand him to be
saying that if the President didn't concede or didn't agree to
have some [type] of sexual contact with her, that she would
report an affair?
A. My understanding was that she demanded to have sexual
relations. He rejected her. And she said that--this is--I
recall him saying--that, ``They called me the Stalker.'' That's
what Lewinsky said. ``And if I can say we had an affair, then
they won't call me that,'' something like that.
Q. Now, you previously characterized Ms. Lewinsky's
comments to the President as a threat, if you will?
A. Right, yeah, I would interpret--that's my understanding.
Then Mr. Blumenthal told the grand jury about the impact
the President's emphatic denials had upon his state of mind--
the mind of a potential grand jury witness.
Q. In response to my question how you responded to the
President's story about a threat or discussion about a threat
from Ms. Lewinsky, you mentioned you didn't recall
specifically. Do you recall generally the nature of your
response to the President?
Answer by Mr. Blumenthal:
I was generally sympathetic to the President. And I
certainly believed his story. It was a very heartfelt story, he
was pouring out his heart, and I believed him. . . .
Q. Did the President explain to you what Monica Lewinsky's
trouble was that he was helping?
A. No.
Q. And you never asked him?
A. No.
Q. Did anyone else, including the First Lady, tell you what
Monica Lewinsky's trouble was that the President was
ministering about?
A. No. . . .
Q. What did you understand the President to mean by, he had
done nothing wrong?
A. My understanding was that the accusation against him,
which appeared in the press that day, was false, that he had
not done anything wrong.
Q. That he had not had any sort of sexual relationship?
A. He had not had a sexual relationship with her and had
not sought to obstruct justice or suborn perjury.
Mr. Blumenthal then went on to say he then asked the
President about some of these reports that there were phone
calls between him and Monica Lewinsky.
Q. Did the President say anything to you about telephone
calls with Monica Lewinsky?
A. As I testified, I had said to him that there were
reports that his voice was on her voice mail, her tape machine
at home to take message--message machine. And he said to me
that he could recall that after Betty's brother died he may
have called Monica because Monica had been very close to Betty.
And Betty didn't have a way of relating to her that her brother
had died, so that he had called and left a message that Betty's
brother died.
Q. Did he suggest to you that that was the only call he had
ever made to Monica Lewinsky?
A. That's the only one he told me about.
Q. Did you ask him if there were any more calls than that?
A. He said that's the only one he could remember.
Well, we now know certainly from White House logs that
``the only one the President remembered'' isn't quite true,
that in fact I believe it was over 50 telephone conversations
between the President and Monica Lewinsky. And it begs the
question: Why was the President, on the day this story broke,
pulling his aides in to relay information that the President
knew was patently false when he knew that they were potential
witnesses before the grand jury?
Now, it is important to remember that this testimony from
Mr. Blumenthal was given 1 month before Monica Lewinsky decided
to opt to cooperate with the Office of Independent Counsel.
Thus, these questions were asked of him in a vacuum without the
benefit of Ms. Lewinsky's extensive testimony, as well as the
President's own grand jury testimony. And the House managers
agree that these and other areas need to be more fully explored
with the gentleman under oath in light of the later revelations
that occurred surrounding this case.
Now, we know a couple of things. We know that the Monica
Lewinsky story broke on January 21. We know that the President
spoke to Sidney Blumenthal the very same day. We know that the
President said he knew his aides could be potential witnesses
before the grand jury. And we also know that Mr. Blumenthal was
called three times before the grand jury--once in February,
twice in June.
There is an important question that was never asked Mr.
Blumenthal during his testimony. It could not have been asked
because at the time he testified, the revelation that the
President shared with America in August and Monica Lewinsky's
revelation had not yet been aired. If the President knew that
Mr. Blumenthal was going to be a witness, a potential witness
before the grand jury, if 6 months after this story broke the
President presumably knew that his aide had gone down, not once
but twice, to the grand jury, I would like to know from Mr.
Blumenthal: Did the President ever come up to you and say
something to you? Did he ever say to you: Do you remember that
story I told you back in January? Well, now that you're
actually going to be a witness, I know that you're going down
to testify before the grand jury, I don't want you to give the
grand jury a false impression. I don't want you to give false
information to the grand jury. I don't want you to be a cog in
the wheel of an obstruction of giving the grand jury the
opportunity to hear the truth. I need to recant for you what I
told you.
There is no evidence of that. We would like to find that
out. The only way we can do that is by deposing Mr. Blumenthal
and hopefully bringing him in and sharing that information with
this body.
Another area we would like to inquire about is the area of
a potential plan to destroy Monica Lewinsky if she ever decided
to cooperate with law enforcement authorities. Mr. Blumenthal
told the grand jury that, following the Monica Lewinsky news
revelations, White House aides held twice-a-day staff
briefings, at 8:30 in the morning and at 6:45 in the evening,
every day to discuss, among other topics, the media impact of
the Lewinsky scandal and how to deal with it in the press.
Mr. Blumenthal testified that the primary purpose of these
meetings was to discuss press strategy.
In making his presentation to the Judiciary Committee last
month, chief investigative counsel David Schippers related some
of the quotes in the press following the Lewinsky story. I want
to read a few paragraphs from Mr. Schippers' presentation:
Worst of all, in order to win, it was necessary to convince
the public, and hopefully, those grand jurors who read the
newspapers, that Monica Lewinsky was unworthy of belief. If the
account given by Monica to Linda Tripp was believed, then there
would be a tawdry affair in and near the oval office. Moreover,
the President's own perjury and that of Monica Lewinsky would
surface. How do you do this? Congressman Graham showed you. You
employ the full power and credibility of the White House and
the press corps of the White House to destroy the witness.
Mr. Schippers then quoted from several news sources. Now,
this is just a few days after the President told Mr. Blumenthal
that Monica was known as ``the stalker.''
Inside the White House, the debate goes on about the best
way to destroy ``that woman'' as President Clinton called
Monica Lewinsky. Should they paint her as a friendly fanaticist
or as a malicious stalker?
Again, January 30:
It's always very easy to take a mirror's eye view of this
thing, look at this thing from a completely different direction
and take the same evidence and posit a totally innocent
relationship in which the President was a victim of someone,
rather like the woman who followed David Letterman around.
From another source:
One White House aide called reporters to offer information
about Monica Lewinsky's past, her weight problem, and what the
aide said was her nickname ``the stalker.''
Just hours after the story broke, one White House source
made unsolicited calls offering that Lewinsky was the troubled
product of divorced parents.
And the reference goes on and on. You can find the complete
reference in the committee report.
Now the question is, Was this a mere coincidence that the
President's false statements to Mr. Blumenthal about Monica
Lewinsky being a ``stalker'' quickly found their way into press
accounts, even though those accounts are attributed by the
press to sources inside the White House? The answer to the
question is, yes, it is a coincidence, according to White House
counsel. And we heard that from them just 3 days ago. Mr. Ruff
said in his presentation, and I am quoting:
The White House, the President, the President's agents, the
President's spokespersons, no one has ever trashed, threatened,
maligned, or done anything else to Monica Lewinsky. No one.
Mr. Blumenthal needs to be questioned now under the light
of the facts as we now know them. All we have from Mr.
Blumenthal are the facts as he testified before the revelations
saw the light of day, and he needs to be questioned for the
benefit of those who must make a determination of credibility
and the determination of guilt or innocence. This is the reason
we have included Mr. Blumenthal on our proposed list. He is
just one example of several aides whose testimony is already
before you in the record. But we believe it would be beneficial
not only for the body to hear him but certainly to question him
in light of the revelations that occurred following his grand
jury testimony.
Mr. Chief Justice, with that, we reserve the balance of our
time.
The CHIEF JUSTICE. Very well. The Chair recognizes Mr.
Counsel Kendall for the White House.
Mr. Counsel KENDALL. Mr. Chief Justice, ladies and
gentleman of the Senate, House managers, the purpose of the
managers' motion, and what I am going to address, is whether
you need to add any evidence to the record before you. And that
is all I am going to address. Now, I am tempted--it is like
waving a red flag at the bull--to take on the substantive
arguments that have been presented here as to why the President
is guilty. I am going to refrain from doing that, but my
refraining from doing that is not because I agree with them but
that we have already addressed them. I think here that the
proper procedure is to just address the need for new evidence
to add to the record before you.
The managers' case is in no way--no way--harmed by being
unable to call witnesses at this point. The independent counsel
conducted a wide-ranging investigation. It was intense. It was
comprehensive of every conceivable allegation against the
President after the Lewinsky publicity erupted on January 21,
1998. In the record of publicly available materials, which the
Senate has asked the House managers to certify, the actual
number of pages is somewhat understated because, as I mentioned
before, frequently four or five pages of transcript are
reproduced on a single page of the bound. But, in fact, there
are over 10,000 pages of grand jury testimony, over 800 pages
of other testimony such as depositions, 3,400 pages of
documentary evidence, 1,800 pages of audio transcripts, and
800-some pages of FBI interviews.
The Office of Independent Counsel has an unlimited budget
with unlimited investigative resources, ranging from the FBI to
private investigators. Its agents interviewed people all over
the country, used several different grand juries, conducted
hundreds of interviews, even called people back from abroad. If
the OIC could have turned up anything that was negative or
prejudicial, it would be in those volumes. You can rest assured
that they did their best to find that evidence.
The Starr team has been fully supportive of the pro
impeachment forces in the House of Representatives--indeed, so
supportive that the independent counsel's ethics advisory
professor, Sam Dash, resigned to protest Mr. Starr's zealous
advocacy of the impeachment of the President.
Just this week, Mr. Starr and his staff have aggressively
continued to support the House managers during these Senate
proceedings. Some commentators have commented that the
independent counsel is, perhaps, the honorary 14th House
manager.
Now, I rehash this all not to cast aspersions at Mr. Starr
but to remind the Senate that after 5 years and $50 million
President Clinton may be the most investigated person in
America. I would certainly say this for Mr. Starr: He is
thorough. He is thorough. After all the work that has been done
for them by the independent counsel, there is simply no way
that the House managers are prejudiced by not being able to add
to this record at this point.
Now, Mr. Manager McCollum repeated this morning that we are
afraid of witnesses. We are not. We have reviewed in detail in
our presentations what the evidence shows about both the
perjury and the obstruction of justice allegation. We are not
at all afraid of what the witnesses would say. Indeed, we know
what they are going to say because it is all right there in the
volumes before you. We think that you have everything there for
the basis on which you can make a fair judgment and achieve a
fair resolution. The managers' hope to call more witnesses is
simply a product of their desire, their hope, their prayer,
that something will come to rescue their case.
Let's be clear about one thing: Any delay in the process
necessary for us to have fair discovery is on their heads. Our
point here is that there is simply no need to go outside this
record because what you have before you is voluminous, and it
is a completely adequate basis for your decision.
As I pointed out the other day in the questioning period,
the only thing left out of this record is evidence that might
be exculpatory or helpful to the President. And if we must, we
will as conscientious lawyers seek out that helpful additional
evidence through discovery.
This body has been scrupulously fair in these proceedings,
and I am confident it will be fair concerning our need for
discovery; if the ``genie'' of discovery is let out of the
bottle and live witnesses are deemed to be appropriate, then we
are going to need a fair period of time for our own discovery.
But, again, the point today on this motion is that the
managers have simply identified no particular need for
witnesses, no specific areas of testimony that might contribute
to what is already in the record and, indeed, no material
questions--you can always think of questions that were
unasked--but no material questions, given the allegation in the
two articles that are not in the record before you.
Just recall, in the House the managers believed that this
was an adequate record to come to you and urge removal of the
President. They rested on that record in the House, and they
impeached an elected President on the basis of that record.
They cannot now complain that it is, for some reason, unfair to
submit this same record to you for judgment at this point. We
are not afraid of or reluctant to call witnesses, but we think
that at the end of the day, the addition of more testimony from
the three witnesses you have heard about won't affect any
evidentiary judgment you have to make.
Mr. Manager Barr declared during his presentation a week
ago Friday, on January 15, that this was in fact a relatively
simple case, although we, the White House lawyers, would try to
nitpick the evidence. He told you that what we have before us,
Senators and Mr. Chief Justice, is really not complex--
critically important, yes, but not essentially complex. The
able House managers have kept insisting on their need for
witnesses, but they haven't indicated what substantial,
material, and relevant questions the witnesses would be asked
which haven't already been asked or why such questions are
essential or even relevant to the resolution of this
proceeding.
Frankly, I think this is because there just aren't that
many more questions to ask of these witnesses. Mr. Manager
McCollum kind of let the cat out of the bag on this one when, a
week ago Friday, he told you, ``I don't know what the witnesses
will say, but I assume if they are consistent, they will say
the same thing that's in here.''
I was surprised at some of the statements the managers made
during the questioning period on Friday and Saturday. Mr.
Bryant said, ``We would very much like to talk to some of these
witnesses.'' And he added, ``It is very critical that you talk
to the witness before having that witness testify.'' Mr.
Manager McCollum stated, ``As a matter of fact, we think we
would have been incompetent and derelict as presenters of the
evidence if we hadn't talked to them first.'' Just this Sunday
Mr. Manager Hyde, on ``Meet the Press,'' observed that the
purpose of the court-ordered Office of Independent Counsel's
chaperoned interview of Ms. Lewinsky last Sunday was to get a
sense of what kind of a witness she would make.
I say this respectfully, but I am duty-bound to observe
that it is, in fact, a dereliction of duty to have come this
far in the process, to have made this serious set of charges as
have been made against the President to seek his removal and
not to have talked to the witnesses on whom they purport to
rely. How can they have come this far and now tell you: Oh,
yes, we now need to meet face to face with the witnesses? We
don't know what they sound like, how credible they will be, but
we have rested our judgment on this. We need to see them
personally.
This procedure, I submit to you, is just backward. First,
they filed the charges, which have been spoon fed by Mr. Starr.
They don't bother to check these out; they take them at face
value, and now they finally want to talk to the witnesses, and
they again use Mr. Starr to threaten Ms. Lewinsky with
imprisonment unless she cooperates with them.
Now, it is no answer to say that the witnesses didn't want
to talk to us. There was a way to talk to them in the House of
Representatives, and that was through the subpoena power that
the House could have used if they had wanted to talk to their
witnesses, if they had fulfilled the obligation they had before
they proffered these charges to you.
This has been a partisan process on the part of the House
managers. In the House, they had the votes. They didn't think
they needed to talk to witnesses. When you have the votes and
the independent counsel on your side, you don't need to
independently develop the evidence. Indeed, Sunday, on CNN, Mr.
Manager Cannon provided some insight----
Mr. HUTCHINSON addressed the Chair.
The CHIEF JUSTICE. The Senator from Arkansas.
Mr. HUTCHINSON. I object to White House counsel's continual
reference to comments made on television programs which are
outside the record before the Senate.
The CHIEF JUSTICE. This is on a motion to call additional
witnesses, and the argument has been very free form and kind of
far reaching. I think this is a permissible comment, so I
overrule the objection.
Mr. Counsel KENDALL. Thank you, Mr. Chief Justice. I think
Mr. Manager Cannon's comments did provide some insight into the
need for witnesses or the justification for witnesses here. He
noted that the Republicans had lost five seats in the November
election, and he went on to say that, accordingly, the
Republicans felt a need to speedily complete impeachment in the
lame duck session before the 106th began its session. He said,
``Republicans on the Judiciary Committee were committed to
being done by the time we got done,'' and that is where we got
on that track with no witnesses.
Now, they are trying to take a different track, and I think
it comes from desperation. You have had the case analyzed
before you; you have had the evidence in the case assessed. I
think it has been demolished in an adversary proceeding.
The House managers are like the character in ``David
Copperfield,'' Mr. Micawber, who was always hoping that
something would turn up. They continue to hope that something
will turn up for them. They don't know what it is, but they
believe they will know it when they see it and they hope if,
for the first time in these proceedings, they actually talk to
the witnesses on whom they have relied, they will find
something to persuade you to overcome the evidence in the
record.
Now the managers have said, ``Well, we told the White House
that they could have called witnesses in the House if they
wanted to, and they chose not to do so, so it is really their
fault.'' I respectfully submit to you that only in the world of
Franz Kafka do you have to present evidence of your own
innocence before you even hear the charges or the allegations
against you.
It was the burden of the House to establish, by an adequate
evidentiary basis, a case for impeaching the President. They
failed to do that, I respectfully submit. They are a little
like a blackjack player who sees 20 on the table and has 19 and
is going to try to draw that 2, hoping against the odds. Here
they are simply gambling. And gambling may have its place as a
recreation, but I don't think it has a place in this
impeachment trial when the fate of the President is at stake.
Now, I don't want to be uncharitable to the House
managers--and they are able--but I think it is perhaps
appropriate to remind you, as my partner Ms. Seligman did in
her argument yesterday, that in their own Chamber the House
managers sang a very different song about the need for
witnesses. And to be fair, this was not just one manager; they
sang as kind of a barbershop chorus. Most of them are on the
record to this effect, and I think the very best witnesses you
have about the need for witnesses are the House managers
themselves.
Let's listen to some of the comments of the managers on
whether live witnesses needed to be heard to supplement the
evidence in the many volumes already gathered by the
independent counsel.
For example, on November 5, Mr. Manager Hyde said:
We believe the most relevant witnesses have already
testified at length about the matters in issue, and in the
interest of finishing our expeditious inquiry we will not
require most of them to come before us to repeat their
testimony.
He added that, ``[Monica Lewinsky and Linda Tripp] have
already testified under oath. We have their testimony. We don't
need to reinvent the wheel.''
The very next day, on November 6, Mr. Manager Gekas stated:
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.
On December 1, during a hearing before the House Judiciary
Committee at which the committee received testimony concerning
the consequences of perjury and related crime, Mr. Manager
Chabot stated:
We could call more and more and more witnesses. We are
trying to get this wrapped up as expeditiously as possible. I
think both sides want to do that. If we call more witnesses and
drag this on into next year, then they are going to scream
because they say we are on a fishing expedition, we have
already got enough evidence.
At that same period, Mr. Manager Canady said, of the need
for witnesses:
Now, we do have a responsibility to make certain that we
act on a solid basis. We should not move forward with articles
of impeachment on the basis of insubstantial evidence. I think
all of us agree on that. The fact of the matter is that we have
a mountain of sworn testimony. . . .
On December 9, Congressman Coble, who was a member of the
House Judiciary Committee, told us during our presentation on
behalf of the White House:
Mr. Ruff, I want to address a couple of myths and one myth
is that we have no evidence because there have been no fact
witnesses called . . .
Five volumes sit alongside me. These are the same five
volumes that are at our table that contain sworn testimony
before a criminal grand jury, FBI interviews, depositions and
other materials.
Mr. Manager Hyde made two statements on the floor of the
House of Representatives during the debate over the articles of
impeachment which I think bear quotation here.
On December 18, Mr. Manager Hyde stated:
We had the facts, and we had them under oath. We had Ms.
Lewinsky's heavily corroborated testimony under a grant of
immunity that would be revoked if she lied; we accepted that. .
. .
And then the next day, on Saturday, December 19, Mr.
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 have 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?
``Why interview Monica Lewinsky when we had her statement
under oath, and with a grant of immunity that if she lied, she
would forfeit.''
After the House voted its two articles of impeachment, the
House managers still saw no need for live witnesses. On
December 29, Mr. Manager Gekas stated:
We are going to make the case that there is already enough
testimony under oath, in one grand jury testimony and
affidavits.
Then again, a week later, Mr. Manager Gekas stated:
In my judgment, there might not be any real rationale for
calling Linda Tripp or Betty Currie or Vernon Jordan if the
testimony of Monica Lewinsky is accepted as being what she
offered on grand jury terms.
Roll Call reported on January 7 that Mr. Manager Cannon
stated, regarding calling Ms. Currie as a witness in the Senate
trial:
I am reluctant to call [Ms. Currie] because it's a rotten,
nasty thing to do to a public servant.
When confronted with this inconsistency, the managers, who
are talented attorneys and successful Congressmen, have all
argued, ``Oh, well. The forum has changed,'' as if it is no big
deal for the House to impeach a President without witnesses.
But it would be unconscionable for the Senate to acquit the
President without first doing the ``rotten, nasty thing''--Mr.
Manager Cannon's phrase--to some witnesses. How can you have a
trial, they protest, without witnesses? One might ask, How can
you have a hearing without witnesses? But the House did. How
can you impeach a President without witnesses? The House showed
you.
Finally, it is instructive to note that when the managers
were presenting their case in the House in the Judiciary
Committee, they did not declare that they would insist on
witnesses when they got to the Senate. They did not tell their
colleagues, We will not need witnesses in the House because we
will have them in the Senate. No. They rushed this through the
House because they had the votes and now they want to delay in
the Senate because they are afraid they don't have the votes.
There is no reason, we respectfully submit, to delay this
Chamber, to drag out these proceedings and defer doing the
business of the American people.
I would like to discuss each of the five categories. I will
call them categories. There are three witnesses. Then there are
the two affidavits, and then there are the telephone records.
There are really six. I would like to discuss these in terms of
whether they add anything, or whether the managers have made a
proffer that they add anything to the record which is now
before you because I think that is the question you have to
determine.
On this motion, you are not voting whether substantively to
convict the President. You are simply determining, Is the
record adequate?
Let's first take Ms. Lewinsky. On Sunday, the House
managers, with the gentle assistance of the independent counsel
prosecutors, were able to interview Ms. Lewinsky after
schlepping her across the country from California. They did so
despite the fact that the Senate had established by a 100-to-0
vote a procedure for the orderly calling of witnesses after
discussion and debate. They did so after declining to interview
Ms. Lewinsky at any time during the House proceedings when they
could have compelled her appearance by the House subpoena
power. And they did so without providing us here with any
reliable record for what that ``talk-fest'' on Sunday may have
produced.
Newspaper reports indicate that the managers did not take
notes. You will recall, of course, that during the questioning
period on Saturday they explicitly rejected a request they
received during the question period that they provide either an
unedited transcript or a videotape of that interview to be sure
that the interview would be open to scrutiny for fairness, and
ascertain whether Ms. Lewinsky in that interview really did add
anything to the record. They declined to do that. But when they
emerged from the Mayflower Hotel on Sunday, after meeting for
their sidewalk press conference, we heard some general
statements generally commending Ms. Lewinsky. Mr. Manager
Bryant called her ``an impressive person.'' Mr. Manager
Hutchinson praised her ``intelligence and poise.''
I thought to myself, where have we heard that before about
Ms. Lewinsky? It was deja vu all over again. Of course, we
heard from Mr. Jordan, from Ambassador Richardson, and from the
people who interviewed Ms. Lewinsky for a job in New York. It
is helpful that the House managers have now at least confirmed
those observations in the record.
At their press conference we heard the managers make some
abstract pronouncements about what Ms. Lewinsky was going to
add--she would be a valuable witness; she would be a helpful
witness; and it was a productive meeting and a benefit to our
case.
That is what we heard. But Ms. Lewinsky's lawyer, Mr. Plato
Cacheris, threw, if I might say, some cold water on those happy
and optimistic pronouncements. It could not have been clearer
in his comments that, not surprisingly, nothing new whatsoever
had emerged from that session. You really didn't hear that. I
think the House managers were quite honest about the session
because you heard nothing about what had emerged from that
today.
Mr. Cacheris told the press conference--some of you may
have seen it: Ms. Lewinsky answered all their questions; there
was nothing new; she added nothing to the record that is
already sitting before the Senate. She shouldn't be called to
the Senate to testify.
The New York Times reported yesterday that after the
interview, Ms. Lewinsky told a friend: It went really well; I
feel positive about it, but I didn't have anything new to say.
Now, according to the Washington Post, the managers were
focused on making sure Ms. Lewinsky had no intention of
changing her testimony. The Washington Post went on to confirm
that she did not indicate any desire to change her testimony in
any way. And the Post article continues that, in fact, Lewinsky
reaffirmed her grand jury statement that no one ever asked her
to lie or offered her a job in exchange for a false affidavit
in the Jones case.
Now, as you are well aware, Ms. Lewinsky was interviewed
extensively by the Office of Independent Counsel. She testified
twice before the grand jury. She gave a lengthy deposition to
the prosecutors. She was extensively interviewed by the agents.
There are over 20 interview reports.
I should also add that a great deal of this comes after the
President was examined in the grand jury on August 17. Ms.
Lewinsky has given detailed and explicit testimony,
particularly in her August 26 deposition, as to her account of
the physical relationship she had with the President. Nothing
at all would be added by further interrogation of her. Nothing
could be gained by repetition in a Senate deposition or in the
well of this body by a repetition of that testimony.
I confess I don't fully understand--I seem to hear Mr.
Manager Bryant and Mr. Manager McCollum say slightly different
things about what they intend to present in the way of Ms.
Lewinsky's testimony. The record on that is what it is. But
whenever I hear somebody tell me, as the very able Mr. Manager
Bryant did, they don't need to cross-examine, really, I am
reminded of what Senator Bumpers said, and he got it from H.L.
Mencken, who probably got it from somebody else: The more they
say they don't have to cross-examine, the more need I feel to
cross-examine.
I don't know what they intended to do there, but in the
grand jury the President plainly acknowledged an improper
relationship with Ms. Lewinsky. He declined to answer further
key questions about that. The Office of Independent Counsel did
not seek either to compel him or to issue a new grand jury
subpoena which would cause the President to come back and go
through those explicit details.
The testimony is what it is, and I don't think anything
further from Ms. Lewinsky is going to in any material way
affect it or even add to it.
With regard to some of the conflicts that are there, I
think we have addressed those in the question period. I am not
going to go over them again in full. Did the improper
relationship begin in November? Did it begin 6 or 7 weeks
later? That conflict is utterly immaterial, I respectfully
submit, in view of what the parties have acknowledged. Mr.
Manager Hyde, indeed, stated in a House Judiciary Committee
hearing on December 1 that that particular point did not strike
him as a terribly serious count, and I agree with that.
The managers have claimed, Mr. Manager Hutchinson claimed
this morning, that there is a contradiction in the testimony of
the President and Ms. Lewinsky with regard to cover stories.
This is not true. We have gone over that again and again. There
is nothing that links this testimony to any deposition in the
Jones case. These were discussed, the record shows, in a
nonlegal context.
I don't think there is anything further to be gained from
Ms. Lewinsky's testimony that is not already there in the
record.
Let's take Mr. Vernon Jordan. Mr. Manager Hutchinson was
kind enough to leave up here his copies of Mr. Vernon Jordan's
five appearances before the grand jury. He held them up on a
chart. I think it is proper to point out that Mr. Jordan's
testimony runs over 900 pages. On March 3, the transcript is
196 pages; 2 days later, on March 5, with the transcript
running to 212 pages, Mr. Jordan emerged from the grand jury,
and he made the following statement which I would like to play
for you:
[Text of videotape presentation:]
First of all it is a fact that I helped Monica Lewinsky
find private employment in New York. Secondly, it is a fact
that I took Monica Lewinsky to a very competent lawyer, Frank
Carter, here in Washington, D.C. And thirdly, it is a fact that
I kept the President of the United States informed about my
activities. I want to say two further things. One is I did not
in any way tell her, encourage her, to lie. And secondly that
my efforts to find her a job were not a quid pro quo for the
affidavit that she signed.
Mr. Jordan testified a third time before the grand jury on
May 5, and that transcript runs to 285 pages. Finally, he
testified two more times, on May 28, for 128 pages, and he
observed as he exited the grand jury room, if we could have the
videotape again:
[Text of videotape presentation:]
For the fourth time I have answered every question over and
over and over again. I suspect, however that I will have to
answer the same questions over and over and over again.
And guess what. Mr. Jordan was clairvoyant because he was
called back to the grand jury for a fifth time on June 9. He
said as he exited:
[Text of videotape presentation:]
When I came here in March, early March, I said that I
helped Ms. Lewinsky get a lawyer. I helped her get a job. I had
assurances that there was no sexual relationship and I did not
tell her to lie. That was the truth then. And that is the truth
today. And I've testified five times, over and over again to
those truths.
One of the justifications Mr. Manager Hutchinson offered
for calling Mr. Jordan was to explore an alleged conflict
between Mr. Jordan and Ms. Lewinsky over whether Mr. Jordan had
told her to go home and make sure that notes she had been
keeping were not there. Here, I think Mr. Manager Hutchinson is
referencing a statement that Ms. Lewinsky made in her proffer
to the Office of Independent Counsel describing her
recollection of a breakfast she believed she had with Mr.
Jordan. It is in the appendix volume at page 716.
Now, the thing to note, ladies and gentlemen, about this
statement is its date. Ms. Lewinsky said this on February 1,
1998. She had written then that she expressed concern about Ms.
Tripp to Mr. Jordan and that Ms. Tripp may have seen notes when
she was in Ms. Lewinsky's house. According to the offer, ``Mr.
Jordan asked if the notes were from the President. Ms. Lewinsky
said that they were notes to the President. Mr. Jordan
suggested to Ms. Lewinsky,'' the proffer says, ``that she check
to make sure they were not there, or something to that
effect,'' from Ms. Lewinsky.
Now, contrary to this supposed conflict, Mr. Jordan was
never asked in the grand jury on any of the five occasions he
was there--all of which, I remind you, were after this February
1 proffer about this matter. He wasn't asked about it. It
doesn't concern the President, in any event. And I think, most
importantly, it is nowhere alleged, if you look in the actual
articles--if you look at article II, nowhere is this
conversation alleged in any way as a basis for impeachment, a
basis for charging the President with obstruction. I think in
fact it is a gratuitous smear of Mr. Jordan. And it certainly
does not provide a basis for extending this proceeding to ask
him questions about it.
Now, Mr. Manager Hutchinson also claims that there is a
conflict between the testimony of Ms. Lewinsky and Mr. Jordan
on the issue of whether they discussed specific changes that
were subsequently made in her affidavit. He said to you that he
thought that was a basis for calling them as witnesses.
However, the record is clear--it could not be clearer--that the
idea of certain deletions in the affidavit came from Ms.
Lewinsky's lawyer, Mr. Frank Carter.
As I mentioned in my presentation on Thursday, Ms. Lewinsky
discussed that she had talked to Mr. Jordan about some
affidavit changes and he told her: Go talk to your lawyer.
In any event, Ms. Lewinsky's lawyer, Mr. Frank Carter,
testified unequivocally to the grand jury: I don't recall
Vernon ever asking me the substance of what Monica told me or
tried to talk about the substance of what Monica told me. He
clearly never told me how I should proceed or what I should do.
Mr. Carter further testified that paragraph 6 of the
affidavit in its draft form, the last part of the sentence,
``has certain words about the private meeting.''
That paragraph, Mr. Carter--Ms. Lewinsky's lawyer--
testified, was modified when we sat down in my office on
January 7. He further testified that it was his idea before
that meeting to take it out because he didn't want to give Ms.
Jones' lawyers any hint of a one-on-one meeting.
There is simply no basis to call Mr. Vernon Jordan once
again to have him go through the things he has testified about
a great many times already.
Now we come to Sidney Blumenthal. Mr. Manager Rogan very
ably argued that there was a need to call Mr. Blumenthal
because of Mr. Blumenthal's testimony as to what the President
had told him, Sidney Blumenthal, in the aftermath of the
explosion of publicity over the Lewinsky matter in January a
year ago.
First of all, there is no conflict here that is material
because the President has never disputed Mr. Blumenthal or his
aide's accounts of this conversation. Any dispute is wholly
immaterial as to the two counts--the two articles of
impeachment. The President was examined extensively about this
subject in his own grand jury testimony and he testified as to
what he tried to say. But he also added that in this period
things were a ``blur'' is a term he used one time; ``a
blizzard'' was a term he used another time--that he had
discussions with a number of his aides, including Mr.
Blumenthal, he tried to be careful in what he said, he thought
he was technically accurate, but he would not dispute and did
not dispute their characterizations of what they recalled of
the conversations with him.
Again, Mr. Blumenthal--Mr. Rogan pointed this out--
testified three times before the grand jury. His recollection
of his conversations with the President has been analyzed in
detail and a further round of deposition would add nothing of
substance to that testimony. Indeed, the President's speech to
the Nation the day of his grand jury testimony, when he spoke
to the Nation on the evening of August 17, also represented an
acknowledgment by the President that he had misled his aides,
such as Sidney Blumenthal.
As I indicated last Thursday, however, any statements to
the White House staff could have had no impact whatsoever on
the Paula Jones case, as article II alleges each of the seven
grounds has, because Mr. Blumenthal had no firsthand knowledge
of the President's relation with Ms. Lewinsky. He could only
report to the grand jury what the President had told him,
however misleading those statements of the President may have
been at the time. There is no dispute here, there is no
material reason to call Mr. Blumenthal, except to try to
embarrass the President by the presentation of testimony from a
member of his senior staff.
Now, the next two things that the managers would seek to
add to the record are not, they tell you, live witness
testimony. But don't let that fool you. They want to put in two
sworn declarations--like an affidavit--from two people. One of
them is a Mr. Wesley Holmes, a lawyer for Ms. Paula Jones, and
the other is Mr. Barry Ward.
Now, I don't have the pleasure of knowing Mr. Wesley
Holmes, but I do know Mr. Barry Ward. He is a very intelligent,
very hard-working and knowledgeable young lawyer in Little
Rock, AR, who works as a law clerk for Chief Judge Wright. He
has got an encyclopedic knowledge of Razorback athletic lore.
He has a lot of fine characteristics. He is very helpful as a
law clerk and gets information to you and back very
efficiently. But there is one thing Mr. Ward is not, and I am
sure he would agree, a mind reader. He is not a mind reader.
There were a number of people in the room at the deposition.
None of them were mind readers. They could all give their
testimony about what they thought was going through the
President's mind. The President has addressed that a number of
times. You have seen the videotape.
Now, the second witness is exceedingly interesting, and
that is Mr. Holmes. And Mr. Holmes would give a sworn
declaration to, among other things, say what he had in mind
when he issued the witness subpoena to Betty Currie, which was
days after the President's conversation with her on December
18.
Well, he would be a very interesting witness to depose, let
me tell you. This is one of Paula Jones' lawyers talking about
offering a declaration about his litigation strategy. And I
think the opportunity to depose him would provide a great deal
of information about what really motivated the events of
January 1998. I think we could show that there were a number of
connections between the independent counsel, Linda Tripp, and
the Paula Jones lawyers. But I don't think you need to get into
that briar patch because Mr. Holmes is not a mind reader any
more than Mr. Ward is. You simply don't need that testimony to
illuminate the record.
Before I leave that, let me make the point that while the
managers would like very much to throw in a couple of sworn
declarations, you should be assured of our need to take
discovery and, in Mr. Holmes' case, take comprehensive
discovery. I don't think anything in S. Res. 16--I don't know
if you have gotten to this, but I don't read the resolution as
authorizing simple hearsay evidence.
We would need to depose the Paula Jones lawyers in some
detail, and I think they have now waived significant legal
protections that would make that possible.
Finally, there was a category of telephone records. It is a
little hard to address that category. Those are just documents.
I don't think the record need be expanded by their addition,
and I will tell you why.
Telephone records, as I said the other day, really tell you
nothing, unless it is very important to time, to date a
particular call. They really are inscrutable. You have to have
the witness testify about what they mean. I don't see anything
in there that would justify opening the record to add certain
telephone records.
Finally, I want to be candid with you. I don't want to be
alarmist. I want to be honest, though, about what opening the
door for discovery will mean for this process. I said before
that the Senate had been fair in these proceedings, and it has
been fair. I think the identification of a specific record
which the parties could agree on, have in the sunlight, talk
about, argue about, was the fair thing to do and the right
thing to do. I think if discovery is inevitable, we will
anticipate and believe that you will be fair in allowing us the
discovery we are going to need.
I ask you, if you would, to read our trial memorandum
because at pages 124 to 130 we have set forth there our need
for discovery. It is not a new invention. Should the Senate
decide to authorize the House managers to call additional
witnesses live in this proceeding or have the depositions
taken, we will be faced with a critical need for the discovery
of evidence useful to our defense.
I made the point that the discovery of evidence in the
Office of the Independent Counsel proceeding was--not to put
too fine a point on it--not aimed at getting us exculpatory or
helpful evidence. We need to be able to do that. We have never
had the kind of compulsory process, the kind of ability to
subpoena documents and witnesses that you will have in a garden
variety civil case. We have not had access to a great deal,
many thousands of pages of evidence which is, first of all, in
the hands of the House managers that they got from the Office
of Independent Counsel, but did not put into the public record,
did not print up. We also need discovery of those other
documents, witness testimony transcripts, interview notes,
other materials, which may be helpful or exculpatory that are
in the hands of the independent counsel.
Our dilemma is this: We do not know what we do not know.
That is what discovery means. You have to get discovery so you
can find out what is available. It may not necessarily prolong
a trial, but it makes you able to defend your client in the way
you have to be able to do so as a lawyer. It doesn't turn on
the number of witnesses.
The calling of these witnesses produces a need in us to be
ready to examine them, to cross-examine them. It initiates a
process that leaves us unprepared and exposed unless we have
adequate discovery. This is a proceeding, I need not remind
you--I know everyone recognizes its gravity--to remove the
President of the United States. You have to give us, and I
believe you will, the discovery that will enable us to
represent the President adequately, competently, and
effectively.
The sequence of discovery is also important. I want to be
clear about that. It is all very well, and I recognize how it
happens, for one side to say, ``Well, we are going to put on
three witnesses and they can put on three witnesses.'' Ladies
and gentlemen of the Senate, we don't know right now how to
make a reasoned choice because we haven't had the discovery you
would normally have to do that. We would first need to obtain
and review the relevant documents. I have indicated where those
are. We would then need to be able to depose relevant
witnesses. We need to know whether the witness depositions that
the House managers had taken would need to lead to other
depositions there. Only at that point when we have had
discovery of our witnesses will we be able to identify the
witnesses we might want to call.
This is a logical procedure, and I think those of you who
have tried cases will recognize it as such. It is simply
impossible from where we now are to see how a witness
designated by the House managers can be fairly rebutted without
ourselves having access to all of the available evidence.
Given what is at stake, I think fundamental fairness
requires fair discovery. We will be expeditious, but in the
event the genie is out of the bottle, we need time, we need
access to defend the President in the way any client ought to
be defended.
I think the Senate has wisely elected to proceed on a
voluminous record, a record that is available for public
scrutiny that was assembled by people not favorable to the
President. I think you have enough evidence to make your
decision on the basis of that record.
But in the event you decide to expand it, affording us
adequate discovery is essential if we are really going to
practice the rule of law as I believe the Senate would intend
for that rule of law to be practiced in its proceedings.
But let me conclude by saying that I don't think, and I
respectfully submit to you, that there is a need to prolong
this process. We hope that you will render your decision in a
manner that is speedy, and we are confident that you will
decide to make that decision in a manner that is fair, and that
this body will, as so often it has done in past times of
crisis, be able to bring to the country both the closure and
reconciliation that the country wants so very much. Thank you.
The CHIEF JUSTICE. Does counsel for the President have any
more presentation?
Mr. Counsel KENDALL. If I may, Mr. Chief Justice, I reserve
the remainder of my time.
The CHIEF JUSTICE. No, you can't reserve it. It is open,
respond, and rebuttal.
Mr. Counsel KENDALL. I will then quitclaim the rest of my
time.
The CHIEF JUSTICE. Very well.
[Laughter.]
Mr. Manager BRYANT. Mr. Chief Justice, may I inquire how
much rebuttal time we have remaining?
The CHIEF JUSTICE. Thirty minutes.
Mr. Manager BRYANT. Thank you, Mr. Chief Justice. I will be
brief and ask other managers to come up and follow me. I have
four quick points to make.
Before I get into that, I want to thank my distinguished
colleague from DC, Mr. Kendall. Over my practice of law for
several years, I have received a number of jabs before in the
courtroom but never so gentle and never so eloquently, and I
thank you.
I think his presentation was very good but probably makes
the best illustration of why witnesses are needed in that he
has chosen to use selective quotes. He likes to use those
quotes and point to the managers over there where we were
quoted without a real context and certainly that is what this
hearing has been about so far, both sides picking and choosing
among quotes that best illustrate the point we want to make at
the time.
Really, what we need is the big picture, the entire,
complete picture that witnesses and only witnesses can provide
in this case.
Let me go back to a couple of the selective quotes, and
those are the quotes that we made back in the House when we
were involved in the proceedings which, I remind each one of
you involved, are the very same stacks of books that they have
shown you very often in the past as the record here and why do
we need to go outside the record? That very same record was
there in the House, and it was at that time Mr. Lowell, the
minority counsel, was representing the President's interests,
but also Mr. Kendall was there. In fact, both together examined
Mr. Starr. That was when they were making the request for the
witnesses, based on this very same record. Notwithstanding
that, we need witnesses. I simply point that out to you to show
you that Mr. Kendall and his very talented staff do not have a
monopoly on consistency.
Another example of selective quoting has to do with quotes
made about our occasion to visit Ms. Lewinsky, to talk to her.
This was the one witness we had not been able to talk to. He
pulled those quotes out as if we needed to talk to all the
witnesses. We don't need to talk to all the witnesses, but we
just needed to sit down and talk with her. I might tell you she
was ably represented by three attorneys. She had as many
lawyers there as we did and perhaps more. So she was not
imposed upon.
In terms of my statement about discovery, I think I perhaps
was misunderstood, but I certainly conceded the White House
might want discovery to depose Ms. Lewinsky. But I still have a
hard time determining why they would need to discover what Ms.
Currie might want to say; she sat right outside the President's
office every day, or what Mr. Jordan might say; he plays golf
with Mr. Clinton every day, or Mr. Podesta, his former Chief of
Staff.
I am just trying to save this Senate some time on the
question why we would need to go through discovery of those
types of people.
My last point I would like to make before I bring Mr.
Hutchinson in is Mr. Kendall's point--and I am not sure where
they were going but perhaps trying to worse case this
situation--in terms of taking forever and a day to conclude all
kinds of witnesses. He indicated we needed to take all the
lawyers of Paula Jones and question her motivation. I suggest
to you that a real clue for her motivation for this lawsuit, we
could say, was the 850,000--reasons motivation she received the
other day. But let me end with that note and bring up Mr.
Hutchinson who will continue this process.
Thank you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. I thank you, Mr. Chief Justice. I
will just take a moment.
Mr. Kendall did an outstanding job, as he always does, of
making his case for not calling witnesses. I thought the most
compelling example as to why we need witnesses was the fact
that he called a live witness, Vernon Jordan. Mr. Jordan
testified here in this Chamber. Why did they not present a
transcript? Why did he want to bring a live witness? Because it
was real. It was alive. He was more meaningful than a
transcript. He told the story in short, concise ways that I
have not been able to do during my presentation during the last
week. We would like to have the same opportunity, not through
video but to present a live witness so that he could cross-
examine, so that we could question. I think that is a fair
proceeding.
Mr. Kendall raised the point that the statements about the
notes that Ms. Lewinsky testified she discussed with Mr. Jordan
were referenced in her February 1998 proffer. When I was making
my point, I was referencing her August grand jury testimony,
not the February proffer, because my recollection is that the
February proffer that was submitted by Mr. Ginsburg had
subsequently become a subject of litigation because we were not
able to reach an immunity agreement. So perhaps that was the
reason that subject was not inquired into by the independent
counsel. For whatever reason, my review of the transcripts is
that that subject was never broached with Mr. Jordan. I do not
profess perfect knowledge of it, but that is my understanding
of it.
And then finally I want to also look at the discovery that
Mr. Bryant referenced. There was a gambling illustration that
Mr. Kendall used about blackjack. But another part of poker is
bluffs. And I don't know whether they are bluffing. I don't
know whether they are serious about all the discovery that they
need to have. But I know that lawyers do that sometimes to
intimidate, to scare you away.
But I think even more important is that the House managers
have submitted to the rules of the Senate. We were not
particularly happy about all of them, but we recognized it was
important to have legitimacy in this process. We accept that.
We move on.
I hope that whatever rules of discovery, whatever
limitations you wish to put, whatever timeframes you wish to
put, the White House counsel will be as amenable to the desire
of this Senate and this Nation to conclude this as we have been
in adopting what our desires are to your schedule.
I yield to Mr. McCollum.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
McCollum.
Mr. Manager McCOLLUM. Mr. Chief Justice, thank you very
much.
I want to make a couple of observations, and one of them
seems pretty apparent. Mr. Kendall says they are not afraid and
I was wrong in characterizing them as being afraid--the White
House counsel--of calling witnesses. But I am going to tell
you, I cannot rationalize any other way why he would be out
here to make the pitch as hard as he is against witnesses,
especially the sort of threat that this is going to go on and
on and on if we open the door and we call three witnesses. You
know, we are down from thinking we ought to have 10, 12, maybe
15 witnesses, to 3--Monica Lewinsky, Vernon Jordan, and Sidney
Blumenthal. And we have introduced three--or proposed to
introduce three very simple pieces of new evidence. That can't
take a lot of discovery, the need to go further than that. If
he wants to produce witnesses, that is fine. But I just can't
imagine why that opens that door.
Mr. Holmes he talks about, the attorney. What is the
significance of that declaration or affidavit, that sworn
declaration that we would like you to take in that says,
``well, we have to depose Mr. Holmes.'' That was put in very
simply because counsel on the other side--I don't accuse them
of doing it intentionally, but the other day they misled us, I
think unintentionally misled you, on the idea that the
President, at the time he left the deposition in the Jones case
and went over to talk to Betty Currie the next day, didn't and
couldn't have had any idea that she was going to be called as a
witness. In fact, I think they said she never was on the
witness list and she never was subpoenaed.
What Mr. Holmes' declaration does, as I said earlier, is
bring into the record the subpoena that in fact was issued
within a day or so of that time of when Betty Currie was talked
to. Remember, she was talked to twice, the notice about it and
her name being put on the witness list--that is what that is
all about--and a general explanation of why they chose, as
attorneys, to make that case, why they chose to put her name
out there, and subpoena her, so it is clear on the record.
Very simple. If you look at it--and I am sure you will have
it before you--his declaration is very short. It is about three
paragraphs. And it goes straight to the point. And it encloses
these accompanying documents.
I don't think you should, for one minute, think it opens
the door to some great big, gigantic discovery period. That is
simply an idle threat to intimidate, in my judgment--with a
proper intimidation effort, proper tactic; I don't accuse him
of anything improper--to try to discourage you from letting us
have these three witnesses.
Second, I want to point out that with respect to some of
the things that I said, one thing I did say earlier is I don't
know what all the witnesses would say if we called them. I
don't know what they all would say, certainly. But I would
expect them all to be consistent with what they have already
said in their sworn testimony. And there is nothing
inconsistent with my expecting them to be consistent on the
facts.
We already know with that sworn testimony in the case of
Monica Lewinsky--she has immunity--if she deviates and goes off
of it, she can get herself in trouble. But by no means does my
expectation that the testimony you already have will remain
true mean that I don't think there are new things to be brought
out or that you shouldn't have live witnesses here.
I thought it interesting that Mr. Kendall totally ignored
the one thing that was most significant, in my mind, and that
is the whole idea that there is a need for witnesses out here
to determine their credibility, to check their demeanor, to see
how they respond to questioning, to do all of those things that
I described earlier, that any reasonable attorney in any
courtroom setting in this country in a criminal case--and you
do have to decide whether the crimes were committed or not--
would expect to do. So you can, as my colleagues have said,
look them in the eye and make that determination yourself. He
didn't even address that. And I think that that alone is
sufficiently good reason to have a live witness here, as I said
before to you.
So with that in mind, I will yield to Mr. Rogan.
The CHIEF JUSTICE. The Chair recognizes Mr. Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, Members of the
Senate, Mr. Kendall made a very able and strong presentation.
It was particularly effective when he brought up a series of
quotations from House Members and House managers talking about
the need for witnesses or the lack thereof. It would be more
effective if it were presented in context, but it could not be,
because the context of every single one of those quotations was
in reference to the distinction between the House's function as
the accusatory body versus the Senate's constitutional function
of being the body where an impeachment case is tried. There he
blurs the distinction. That is why in the Constitution a
President is impeached solely on the majority vote. But removal
requires at the trial a two-thirds vote.
Now, Mr. Kendall's presentation begs the question, did the
founders get it wrong when they designed this process? Did the
founders simply intend for us to waste our resources rather
than conserve them and simply do the very same thing, first in
one body and then in the other, with the sole distinction that
the only difference would be the ultimate vote? That was not
their intent. That was not the procedure established by the
Constitution. And it is not the procedure recognized throughout
the country in court proceedings.
There is a reason why courts of inferior jurisdiction will
be able to hold a defendant in a criminal case to answer for
trial at a preliminary hearing based on hearsay testimony,
based on transcripts, based solely on police reports.
But that defendant at a trial has a constitutional right to
come forward. The right to confront and cross-examine witnesses
is supremely guaranteed in the Constitution because the framers
understood the difference, even if White House counsel refuses
to acknowledge the difference.
The argument they have really isn't with the House
managers. Their argument is with the precedence of the House.
Their argument, in fact, is with people like the venerable
Barbara Jordan, our late distinguished former colleague. She
understood the difference between the House's function in an
impeachment role versus the Senate's function. She said during
the Rodino hearings in establishing the division between the
two branches of the legislature, the House and the Senate:
Assigning to one the right to accuse and to the other the
right to judge, the Framers of the Constitution were very
astute. They did not make the accusers and the judges the same
person.
Now, in the words of Yogi Berra, I fear that we are going
through ``deja vu all over again'' with Mr. Kendall's able
argument, because what he has accentuated in this presentation
has been accentuated by White House counsel ever since they
first rose to address this body at the lectern, and that is the
complaint that no witnesses were called before the House
Judiciary Committee, and how wrong it is for the House managers
now to assert the need and the right to have witnesses before
this body when, in fact, no witnesses were called before the
Judiciary Committee.
Once again, he mistakes the function of the two Houses. But
I would invite the Members of this body, if that is an issue
concerning them, to go back and review the voluminous
transcripts during the Judiciary Committee where Chairman Hyde
did everything but get on his knees and beg the members of the
President's defense team, beg our colleagues on the other side
of the aisle, to identify for us which witnesses they wished to
dispute, what facts they wanted to challenge, to let us know
the witnesses where there was a contention in the evidence. And
despite their complaining and despite their griping and despite
their anger over a supposedly unfair process, they never once
identified in the factual record whose testimony they wished to
challenge.
What we heard repeatedly, day after day in the hearing and
outside before the cameras, was an attack upon the process
rather than an identification of the issues where there are
factual disputes. In fact, they refused to identify, despite
the repeated pleas of Chairman Hyde, who those witnesses were
that they felt were appropriate because the chairman said,
``Tell us who they are, we will call them.''
They champion the cause of witnesses in word but they do
not champion the cause of witnesses in deed, at least not in
the House, because the same people who were complaining of the
unfairness in the House for not having witnesses suddenly have
an allergic reaction to the concept of witnesses being called
before this body where it counts the most, where the ultimate
decision is to be made, where the triers of fact have to make
the constitutional decision whether the case is sufficient for
removal of the President.
Mr. Kendall's repeated hints and statements that somehow
they were denied some form of due process in the House by not
being able to call witnesses is patently unfair and does not
withstand the test of the record. Chairman Hyde alluded to it a
couple of days ago, and based upon Mr. Kendall's presentation,
I feel it is worth a minute or two of this body's time. Mr.
Kendall has stated in these proceedings, and I am quoting:
We have never had the chance to call witnesses ourselves,
to examine them, to cross-examine them, to subpoena documentary
evidence--at no point in this process.
The record is to the contrary:
On October 5, the House passed a procedure by a voice vote
which included the right to call witnesses. On October 21, the
House Judiciary Committee staff met with Messrs. Ruff, Kendall,
and Craig. At that time, Judiciary Committee staff asked the
White House to provide any exculpatory information and provide
a list of any witnesses the President wished to call. On
November 9, the House Judiciary Committee staff wrote to
Messrs. Ruff, Kendall, and Craig and again informed them of the
President's right to call witnesses. On November 19,
Independent Counsel Starr testified before the House Judiciary
Committee. The President's counsel was given the opportunity to
question the independent counsel. The President's counsel did
not ask a question relating to the facts of the independent
counsel's report and allegations against the President. On
November 25, Chairman Hyde wrote a letter to the President
asking the President, among other things, to provide any
exculpatory information and inform the committee of any
witnesses he wished to call. On December 4, 2 working days
before the presentation of the President to the Judiciary
Committee, counsel for the President requested to put on 15
witnesses. The White House was allowed to present all 15
witnesses, and not a single one of the 15 witnesses did they
wish to call, that they asked to call, were factual witnesses.
And so the complaints of unfairness are unfair.
One other point I want to make because again I see a
reversal in roles, is that Mr. Kendall can't seem to decide in
what type of ``ogre'' role he wants to portray us, because he
said in his presentation just a few minutes ago that we were
somehow--at least he alluded to the fact we were somehow tools
of Judge Starr and the Office of Independent Counsel. I was a
little surprised to hear him suggest that Judge Starr spoon-fed
us the charges, and that Judge Starr spoon-fed them to us to
the point where he didn't know whether Judge Starr should be
deemed an honorary member of the House management team.
Well, that is an interesting proposition because it seemed
to me just a day or two ago the same lawyers who are now making
this allegation were claiming constitutional unfairness before
this body and asking that this body dismiss the articles of
impeachment. Why? Because the House Judiciary Committee and the
managers didn't present the exact same charges that the
independent counsel suggested. You can't have it both ways. You
can't fashion the argument depending on what the result is
being sought, and yet that is exactly what the managers with
the White House counsel are attempting to do.
Yesterday we were renegades who didn't follow the strict
rules of Judge Starr and didn't give them proper notice. Now,
of course, he is the marionette and we are the puppets doing
his will.
Members of this body, it is the job of the House of
Representatives, it is the constitutional obligation of the
House of Representatives, to act as the accusatory body in an
impeachment proceeding. The Constitution gives the authority to
this body to try that case. This is the place for trial. This
is the place to determine guilt. This is the place to determine
credibility. This is the place for witnesses.
Mr. Chief Justice, I yield the remainder of our time to our
distinguished chairman of the House Judiciary Committee.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Hyde.
Mr. Manager Hyde, you have 9 minutes remaining.
Mr. Manager HYDE. I won't use the entire 9 minutes.
Mr. Chief Justice, distinguished counsel and Senators, I
will be very brief. Mr. Rogan and my colleagues have handled
this very well, but there are just a couple of things I want to
talk about.
It is disturbing, it is annoying, it is irritating when I
hear that the counsel for the President had been cut off from
information, that we have sequestered things. I pleaded with
them to produce witnesses, made the subpoenas available to
them. They have a positive allergy to fact witnesses.
Oh, they will come up with academics. We saw a parade of
professors. You know what an intellectual is? It is someone who
is educated beyond their intelligence. I certainly don't mean
that of some of those Harvard professors who they paraded out,
even though we disagreed with them, but you would get eye
strain looking for a fact witness.
And it is remarkable, the flexibility they have, that they
complain we called no witnesses in the House. Now they are
complaining that we are calling witnesses in the Senate as
though they don't understand the difference in the threshold.
There we had to prove we had enough to submit to the Senate for
a trial but not try it over there. And a majority vote prevails
over there. Here, you have an extraordinary mountain to climb:
a two-thirds vote and the trial is here, and that is the
difference.
Witnesses help you. They won't help me. I know the record.
I am satisfied a compelling case is here for removal of the
President. But they will help you. And we aren't dragging this
out. We have been as swift as decency will let us be throughout
this entire situation.
Their defense has never been on the facts. If they can come
up with a good fact witness that has something to say, we will
see a reenactment of the Indian rope trick, it seems to me. We
will see professors, though, if past is prologue. I don't know.
But the threat of prolonged hearings, I suppose, is supposed to
make you tremble. It doesn't to me, but then different things--
different strokes, I guess, for different folks. Their defense
has been to demonize Mr. Starr to a fare-thee-well and then
yell about the process. That is their defense.
I will be frank with you. I am not sure I could stand a lot
more of that. But that is what they will do. As far as the
information not available to them, maybe not. Maybe some of the
stuff we got from the independent counsel was held in executive
session, but it was available to Mr. Conyers, available to Abbe
Lowell, available to every Democrat on the Judiciary Committee,
and they went through it. I wrote with Mr. Conyers to Mr. Starr
a letter saying, ``Show us what you didn't send us. Let's look
at what you have over there. There might be some exculpatory
material.'' Mr. Conyers sent his people over and they looked
and they looked and they looked, and I would assume they were
in touch with you folks. I would assume they were. If they
weren't, they should have been. That is a breakdown in
communication.
We have a good case. We have an excellent case without the
witnesses. But the witnesses help you. We have narrowed it down
to three--a pitiful three. I should think you would want to
proceed with that minimum testimony, and Mr. Kendall can try
his cross-examination skills on them, and that I want to watch.
Thank you.
The CHIEF JUSTICE. The time of both sides has now expired.
The Chair recognizes the majority leader.
recess
Mr. LOTT. Mr. Chief Justice, in view of the time that we
have been in without a break, the next pending business is that
we would want to have a motion by Senator Harkin or Senator
Wellstone. Before we do that, I suggest that, without
objection, we take a 15-minute break.
There being no objection, at 3:42 p.m., the Senate recessed
until 4:04 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
unanimous-consent agreement
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
during each day the Senate sits as a Court of Impeachment, it
be in order for Senators to submit to the desk statements and
introduce legislation.
The CHIEF JUSTICE. In the absence of objection, it is so
ordered.
Mr. LOTT. Now, Mr. Chief Justice, I believe at this point
it would be in order for a motion to be made that we go into
open debate, if any, and then when that is dispensed with, we
would go to the move to close and would deal with that issue,
and then we would begin the closed session. So I believe we are
ready for a motion to be offered, if any, at this time.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Iowa, Mr. Harkin.
motion to suspend the rules
Mr. HARKIN. Mr. Chief Justice, in accordance with rule V of
the Senate's Standing Rules, I filed a motion of intent to move
to suspend the rules to open debate on this motion to subpoena
witnesses. The motion is at the desk. It is No. 5, I believe.
The CHIEF JUSTICE. The clerk will report the motion.
The legislative clerk read as follows:
The Senator from Iowa, Mr. Harkin, for himself and Mr.
Wellstone, moves to suspend the following portions of the Rules
of Procedure and Practice in the Senate When Sitting on
Impeachment Trials in regard to debate by Senators on a motion
to subpoena witnesses during the trial of President William
Jefferson Clinton.
(1) The phrase ``without debate'' in rule VII.
(2) The following portion of rule XX: ``, unless the Senate
shall direct the doors to be closed while deliberating upon its
decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motion shall
be voted on without debate and by yeas and nays, which shall be
entered on the record''; and
(3) In rule XXIV, the phrases, ``without debate except when
the doors shall be closed for deliberation in that case'' and
``, to be had without debate.''
Mr. HARKIN addressed the Chair.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. HARKIN. I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The CHIEF JUSTICE. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Maryland (Ms.
Mikulski) is absent due to illness.
The yeas and nays resulted--yeas 41, nays 58, as follows:
[Rollcall Vote No. 3]
[Subject: Harkin motion to suspend the rules]
YEAS--41
Akaka
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Hutchison
Inouye
Johnson
Kennedy
Kerrey
Kohl
Lautenberg
Leahy
Levin
Lieberman
Moynihan
Murray
Reed
Reid
Robb
Sarbanes
Schumer
Specter
Torricelli
Wellstone
Wyden
NAYS--58
Abraham
Allard
Ashcroft
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Chafee
Cochran
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Inhofe
Jeffords
Kerry
Kyl
Landrieu
Lincoln
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Rockefeller
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--1
Mikulski
The CHIEF JUSTICE. On this vote the yeas are 41, the nays
are 58. A quorum being present, two-thirds of those Senators
voting not having voted in the affirmative, the motion is not
agreed to.
The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, that motion being defeated, I
believe it is now in order to move to close the session so we
can have debate on the question of the motion to subpoena
witnesses.
Mr. LOTT. I so move, Mr. Chief Justice.
The CHIEF JUSTICE. The question is on the motion.
The motion was agreed to.
Mr. LOTT. Mr. Chief Justice, I ask that Senators remain at
their place, but I will put in a request for a quorum call just
momentarily so the appropriate arrangements can be made for the
closed session.
Mr. Chief Justice, I suggest the absence of a quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
closed session
[At 4:29 p.m., the quorum was dispensed with and the doors
of the Chamber were closed. The proceedings of the Senate were
held in closed session until 8:01 p.m.; whereupon, the Senate
resumed open session.]
open session
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent
that the Senate return to open session.
The CHIEF JUSTICE. In the absence of an objection, it is so
ordered.
------
adjournment until 1 p.m. tomorrow
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the Senate stand in adjournment as under the previous order.
There being no objection, at 8:02 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Wednesday, January
27, 1999, at 1 p.m.
------
Wednesday, January 27, 1999
[From the Congressional Record]
The Senate met at 1:07 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Dear God, leadership has its defining days in which crucial
decisions must be made. You know that this is an important one
of those days. In a few moments, votes must be cast. Now in the
quiet, the Senators wait to be counted. It is a lonely time.
Beyond party loyalties, those on both sides of the aisle long
to do what ultimately is best for our Nation. Debate has led to
firm convictions. Give the Senators the courage of these
convictions and the assurance that, if they are true to
whatever they now believe is best, You will bless them with
peace. We intercede for them and the heavy responsibility they
must carry. Imbue them with Your calming Spirit and strengthen
them with Your gift of faith to trust You to maintain unity
once the votes are tallied. We commit the results to You. Our
times are in Your hands. Through our Lord and Saviour. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows.
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The majority leader is recognized.
Order of Procedure
Mr. LOTT. Mr. Chief Justice, in a moment we will begin two
consecutive votes. The first will be on the motion to dismiss.
That will be followed by an immediate vote on the motion to
subpoena. Following those votes, there will be an opportunity
to describe how we would go forward from there with the
depositions. I have discussed this with Senator Daschle. It is
likely that we would take a break at that point so that we
could have further discussions with our conferences to make
sure we understand how that subpoena and deposition process
would go forward. I have a resolution prepared. We have some
simpler ones that we can consider. But we would want to discuss
those with each other during the vote, and perhaps even after
the two votes occur, depending on what the results are.
The idea is that we have now before us Senate Resolution
16, which has brought us to the point to these two votes. We
need to give some consideration to making sure we understand
how the process will go forward to a conclusion after that.
I thank my colleagues for their attention. I believe we are
ready for the votes, Mr. Chief Justice.
Vote on Motion to Dismiss
The CHIEF JUSTICE. The question occurs on the motion to
dismiss the impeachment proceedings offered by the Senator from
West Virginia, Mr. Byrd. The yeas and nays are required.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 44, nays 56, as follows:
[Rollcall Vote No. 4]
[Subject: Byrd motion to dismiss the impeachment proceedings]
YEAS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NAYS--56
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feingold
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
The motion was rejected.
Vote on Motion for Appearance of Witnesses and Admission of Evidence
The CHIEF JUSTICE. Now the question occurs on the motion
requesting the appearance of witnesses at depositions and to
admit evidence offered by the managers on the part of the House
of Representatives. On this question, the yeas and nays are
required, and the clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 56, nays 44, as follows:
[Rollcall Vote No. 5]
[Subject: House managers motion to subpoena witnesses and admit
evidence not in record]
YEAS--56
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feingold
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
The motion was agreed to.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, as I indicated earlier, we are
attempting now to clarify exactly how this will proceed and to
reach agreement with regard to the remaining procedure and the
beginning of the deposition process.
We are acting in good faith, but we want to make sure we
are at least going to try to think about all contingencies, and
we are exchanging resolutions and suggestions between Senator
Daschle and myself at this time. We may be asked to vote later
on today on a procedure. We will let you know if that is
necessary today. It could happen tomorrow. But we don't want it
to go much longer than that because we need to make sure this
procedure is going forward.
Of course, if we don't have a resolution, I presume we will
begin to go forward anyway, but we would like to have some
orderly procedure as we have had in the past. My thinking at
this time is that we would just stand in recess subject to the
call of the Chair while we talk this through. It may not be
necessary to do anything further as far as a recorded vote but
it may be. So we just wanted Senators to be on notice of that.
Recess Subject to the Call of the Chair
Therefore, I ask unanimous consent, Mr. Chief Justice, that
the Senate stand in recess subject to the call of the Chair.
There being no objection, at 1:33 p.m., the Senate recessed
subject to the call of the Chair.
The Senate reassembled at 4:47 p.m. when called to order by
the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
First, I thank all the Members, all concerned, for their
patience throughout this process. We have had a productive day,
and I believe this recess that we have been experiencing has
been helpful in allowing further discussions to occur and to
clarify what the procedures will be from here through the
subpoena and deposition process and, hopefully, even to a
conclusion.
Senator Daschle and I have traded proposals which outline
those procedures for the remainder of the trial, and although I
won't go into detail at this time, I will say that both
proposals bring us to a final vote on the pending articles of
impeachment in an expeditious manner. We have been narrowing
the questions that are involved, and we are now working on what
I hope will be the final draft. But it is not going to be
possible to complete that this afternoon. We hope to be able to
do it when we reconvene at 1 p.m. on Thursday.
There will be conferences of the two parties in the morning
so that we can go over this with all the Senators. It is not
enough just that the leaders understand or agree; we have to
make sure every Senator understands it and agrees with the
procedure that we would go forward with.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. LOTT. I now ask unanimous consent that the Court of
Impeachment stand in adjournment until the hour of 1 p.m. on
Thursday.
There being no objection, at 4:47 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Thursday, January
28, 1999, at 1 p.m.
SENATOR BYRD'S FINEST HOUR
Mr. HOLLINGS. Mr. Chief Justice, on behalf of myself,
Senator Stevens and Senator Dodd: George Santayana stated,
``Those who disregard the lessons of history are bound to
repeat them.'' The United States Senate is too politically
charged and it would be more so were it not for the
distinguished Senator from West Virginia, Robert C. Byrd. A
couple of weeks ago the Senate was about to go over the
precipice of partisanship. Fortunately, we agreed to have an
off-the-record session of all Senators. That alone would not
have prevented our reckless course, but it did give all
Senators an opportunity to hear Senator Byrd at his finest
hour. He commenced by thanking Senator Daniel Akaka for leading
us in prayer, harkening the time Benjamin Franklin took to the
floor of the Continental Convention to call on divine guidance
for cooperation and bipartisanship. Then Senator Byrd continued
to calm partisan zeal and give us all a sense of historic
perspective. We started talking sense instead of politics. It
got us together. We could have gone the way of the House, but
Senator Byrd is the one who put us on the right path. In
appreciation for his leadership, we think the country could
benefit by reading Senator Byrd's comments. I ask that the full
text of Senator Byrd's remarks be printed in the Record.
The remarks follow:
Remarks of Senator Robert C. Byrd--Bipartisan Conference in the Old
Senate Chamber, January 8
My colleagues, I thank the Majority Leader and the Minority Leader
for bringing us together in this joint caucus. Mr. Daschle asked me
last evening to be prepared to speak this morning following the remarks
of the two leaders. I am flattered and honored to do so. Having a
proclivity to speak at length on subjects that are close to my heart
and about which I feel deeply, I have taken the precaution this morning
to prepare some remarks in order that I might present them in an
organized fashion and thus avoid speaking as long as I might otherwise
be wont to do. I shall, however, add some extemporaneous remarks as the
spirit of the occasion leads me.
Before proceeding with the thoughts that I have put in writing, I
wish to remind ourselves that we do, indeed, have not only the standing
rules of the Senate, but we also have the standing rules for our
guidance in impeachment trials. This bound copy of rules governing
impeachment trials that I hold in my hand was published in 1986 as a
result of a resolution which former Senator Robert Dole and I offered
for referral to the Rules Committee, at which time we called on that
Committee to update and provide any proposed modifications or revisions
to the rules that had been in existence from the year 1868 when the
impeachment trial of President Andrew Johnson took place.
The rules which the Senate approved in 1986 were followed during
the impeachment trials of the three Federal judges: Claiborne,
Hastings, and Walter Nixon. In listening to some of the comments on
television last evening, I noted that when news reporters interviewed
tourists, those visitors to this city were under the impression that
the Senate was proceeding into a trial without any rules for guidance.
Some of the representatives of the news media were also under this
mistaken impression. I am concerned about the public perception that we
are proceeding to a trial without any rules to guide us. Therefore, I
trust that we will all make it clear as we work with the press that the
Senate, indeed, has a set of standing rules to guide us in this trial.
Before I begin my prepared remarks, I wish to thank the Majority
Leader and the Minority Leader for calling on Senator Akaka to deliver
prayer. They chose the right Senator to lead us in prayer, and I thank
Danny. His prayer set just the right tone and the right spirit for his
occasion. In the midst of Danny's prayer, I recalled that day which
came during the Constitutional Convention in Philadelphia, when the
Framers were encountering difficult problems, and their spirits were at
a low ebb. There was dissension and divisiveness, and their hopes for
success in achieving their goal were fading. Things seemed to be
falling apart. Their dreams of fashioning a new Constitution--the
Articles of Confederation being our first national Constitution--
appeared to be growing dim. The new Ship of State which they hoped to
launch was floundering in troubled waters with rocks and shoals upon
every hand. Dark clouds of despair were closing in upon them, and the
Framers were brought face-to-face with the stark possibility of
failure.
It was then, at that fateful moment, that the oldest man at the
Convention, Benjamin Franklin, stood to his feet and addressed the
chair in which sat General George Washington: ``Sir, I have lived a
long time, and the longer I live the more convincing proofs I see that
God still governs in the affairs of men. And if a sparrow cannot fall
to the ground without our Father's notice, is it probable that we can
build an empire without our Father's aid? We have been assured, sir, in
the sacred writings, that, `Except the Lord build the house, they labor
in vain that build it; except the Lord keep the city, the watchman
waketh but in vain.' I firmly believe this; and I also believe that
without our Father's aid, we shall succeed in this political building
no better than did the builders of Babel. I, therefore, beg leave, sir,
to move that, henceforth, prayers imploring the assistance of heaven
and its blessings on our deliberations be held in this assembly every
morning before we proceed to business, and that one or more of the
clergy of this city be requested to officiate in that service.''
Franklin's motion was seconded by Mr. Sherman.
My colleagues, let us proceed in these deliberations this morning
in a spirit of prayerfulness and cooperation and bipartisanship, and
see if we, too, in our generation may produce something worthy of being
remembered.
I speak from the viewpoint of having a long and varied experience
in legislative bodies. I was born during the Woodrow Wilson
Administration. I was sworn in as a new member of the House of
Representatives during the final days of the Truman Administration. He
is my favorite Democratic President in my lifetime. I having been sworn
in as a new member of Congress in January 1953, I have served longer in
Congress than has any man or woman in either House of Congress today.
Dizzy Dean said that it is alright to brag if you've done it. Well I
have done it! No member of Congress in either House today was here when
I first became a member 46 years ago.
I also try to take the long view of the history that is yet before
us. This country has a long history ahead of it, and the things we do
here, the service we perform, our words and our deeds will be long
remembered and long recorded.
As we proceed to the unpleasant task that awaits us in the days
ahead, let us remember that this is not a trial in a court of law. It
is not a criminal trial. It is a political trial. The Nation will be
watching us, and I implore us all to conduct ourselves in a way that
will bring honor to this body. I view the immediate future with
considerable dread. There is a poison in the air, and it is not the flu
virus, and there is no antibiotic that can be prescribed for it. It is
a bitter political partisanship, and if we let it control us in the
impeachment trial, we will find it to be lethal, and we will die
together.
From time to time there occur events which rise above the everyday,
and sorely test the leaders of men and the institutions they create.
This is such a time. For it is not only William Jefferson Clinton
who is on trial. It is this August body and all of us who carry the
title of Senator.
The White House has sullied itself. The House of Representatives
has fallen into the black pit of partisan self-indulgence. The Senate
is teetering on the brink of that same black pit.
Meanwhile, the American people look in vain for the order and
leadership promised to them by the Constitution. Of one thing I am
sure: the public trust in all of the institutions of government has
severely suffered.
Senators, this is the headline, I had so hoped we could avoid. I
have in my hand this morning's Washington Times bearing the headline:
``Trial Opens Amid Pomp, Partisanship.'' It is the word
``partisanship'' that is troubling.
Any of you who have read your mail or the phoned-in comments from
your constituents knows that the anger and disappointment is only
growing in intensity with each day that we prolong this painful ordeal.
I have always believed that whatever the crisis and whatever the
age, the Senate would always attract and produce men and women of the
quality and character needed to step up and calm the angry and
dangerous seas which might threaten the Ship of State, and dash it on
the rocks and shoals.
I still believe that. I still believe that the Senate can restore
some order to the anger which has overtaken this country and the chaos
which threatens this city. I believe in all of you. I believe that all
of the courage and conviction needed to handle any crisis is present
right in this room.
But, at this moment, we look very bad. We appear to be dithering
and posturing and slowly disintegrating into the political quicksand.
And it is no fault of our leaders. Our two leaders have done their
level best to get us started toward lancing this inflamed boil in an
honorable and orderly way. Left alone, without all of us to contend
with, they would have worked these arrangements out long ago.
Of course, I am very fond and proud of my own Leader, Tom Daschle.
But, may I say to my Republican friends that I am also very fond and
proud of our Majority Leader, Mr. Lott. However, I have been a Majority
Leader in this body, and I know too well who gets the blame when
important matters flounder in the Senate. It is the Majority Leader
and, to a lesser degree, the Minority Leader. And when that happens,
neither party looks good.
I feel it to be appropriate at this point to digress from my
prepared statement and bring to your recollection Chaucer's
``Canterbury Tales,'' and I shall refer to the ``Pardoner's Tale,''
which most, if not all, of you will remember having read in your school
days. The setting took place in Flanders, where, once, there sat
drinking in a tavern three young men who were given to folly. As they
sat, they heard a small bell clink before a corpse being carried to the
grave, whereupon, one of them called to his knave and ordered him to go
and find out the name of the corpse that was passing by.
The boy answered that he already knew, and that it was an old
comrade of the roisterers who had been slain while drunk by an unseen
thief called Death, who had slain others in recent days.
Out into the road the three young ruffians went in search of this
monster called death. They came upon an old man, and seized him and
with rough language demanded that he tell them where they could find
this cowardly adversary who was taking the lives of their good friends
in the countryside.
The old man pointed to a great oak tree on a nearby knoll, saying,
``There, under that tree, you will find Death.'' In a drunken rage, the
three roisterers set off in a run 'til they came to the tree, and there
they found a pile of gold--eight basketfuls, of florins, newly minted,
round coins. Forgotten was the monster called Death, as they pondered
their good fortune, and they decided that they should remain with the
gold until nightfall when they would divide it among themselves and
take it to their homes. It would be unsafe, they thought, to attempt to
do so in broad daylight, as they might be fallen upon by thieves who
would take their treasure from them.
It was proposed that they draw straws, and the person who drew the
shortest cut would go into the nearby village and purchase some bread
and wine which they could enjoy as they whiled away the daylight hours.
Off towards the village the young man went. When he was out of sight,
the remaining two decided that there was no good reason why this
fortune should be divided among three individuals, so one of them said
to the other: ``When he returns, you throw your arm around him as if in
jest, and I will rive him with my dagger. And, with your dagger, you
can do the same. Then, all of this gold will be divided just between
you and me.''
Meanwhile, the youngest rouge, as he made its way into the town,
thought what a shame it was that the gold would be divided among three,
when it could so easily belong only to the ownership of one. Therefore,
in town, the young man went directly to an apothecary and asked to be
sold some poison for large rats and for a polecat that had been killing
his chickens. The apothecary quickly provided some poison, saying that
as much as equalled only a grain of wheat would result in sudden death
for the creature that drank the mixture.
Having purchased the poison, the young villain crossed the street
to a winery where he purchased three bottles--two for his friends, one
for himself. After he left the village, he sat down, opened two bottles
and deposited an equal portion in each, and then returned to the oak
tree, where the two older men did as they had planned. One threw his
arm playfully around the shoulders of the third, they buried their
daggers in him, and he fell dead on the pile of gold. The other two
then sat down, cut the bread and opened the wine. Each took a good,
deep swallow, and, suffering a most excruciating pain, both fell upon
the body of the third, across the pile of gold. All three were dead.
Their avarice, their greed for gain had destroyed them. There is a
lesson here. The strong temptation for political partisanship can tear
the Senate apart, and can tear the Nation apart, and confront all of us
with destruction.
I ask everyone here who might be tempted, to step back from the
brink of political gamesmanship. I ask everyone here who might harbor
such feelings to abandon any thought of mean-spirted, destructive,
vengeful, partisan warfare. It is easy to get caught up in the poison
of bitter, self-consuming partisanship when faced with such situations
as the one which confronts us now.
Witnesses are the main sticking point. I try to put myself in the
shoes of our GOP friends. At least 13 House members are pushing you.
They had the opportunity to call witnesses but didn't. I watched
all House proceedings. It seems to me that with such a mass of
evidence, nothing new will be added. We must avoid a repetition of what
the House has just gone through.
I urge all of us to step back and think about it. What can possibly
be served in this unique court of impeachment by having a repeat of
what we have already seen?
I implore us all to endeavor to lift our eyes to higher things. We
can perform some much needed healing on the body politic. We can start
by disdaining any more of the salacious muck which has already soiled
the gowns of too many. If we can come together in a dignified way to
orderly and expeditiously dispose of this matter, then perhaps we can
yet salvage a bit of respect and trust from the American people for all
of us, for the Senate, and for their institutions of government.
There have been only 1,851 Senators from the beginning of this
Republic, and that includes all of us. We have a duty at this critical
time to rise above politics-as-usual, in which we eat one another and,
in so doing, eat ourselves. Let us put the nation first. The American
people want us to do that. In the long run, that is how we will be
judged, and, more importantly, it is how the Senate will be judged. The
Constitution makes no reference to political party. The constitutional
provision concerning impeachment makes no mention of political party.
There were no political parties at the time the Constitution was
written.
When this is all over and this matter is behind us--and that time
will surely come--then we can be politically partisan if we wish, as
various legislative matters come before us. That is all in the natural
course of things. Republicans and Democrats can go at each others
throats politically if that is what they desire. But this is not a time
for political partisanship. We will be sitting in judgment of a
President. And we should be guided by our oath that, in all things
appertaining to the trial of William Jefferson Clinton, we shall do
impartial justice according to the Constitution and the laws.
Let us be guided by higher motives, by what is best for the
Republic, and by how future history will judge us. We need a surer
foundation than political partisanship, and that sure foundation is the
Constitution.
The Senate was the preeminent spark of genius by the Framers. It
was here that passions would be cooled. The Senate would be the
stabilizing element when confronted with the storms of political frenzy
and the silent arts of corruption.
Let us be true to the faith of our fathers and to the expectations
of those who founded this Republic. The coming days will test us. Let
us go forward together, hoping that in the end, the Senate will be
perceived as having stood the test. And may we--both Republicans and
Democrats--when our work is done, be judged by the American people and
by the pages of future history as having done our duty and done it
well. Our supreme duty is not to any particular person or party, but to
the people of the Nation and to the future of this Republic.
It is in this spirit that we may do well to remember the words of
Benjamin Hill, a great United States Senator from the State of Georgia,
inscribed, as they are, upon his monument:
Who saves his country
Saves all things,
Saves himself
and all things saved do bless him.
Who lets his country die
Let's all things die,
Dies himself ignobly,
And all things dying curse him.
Thank you, my friends, thank you.
------
MOTION TO DISMISS ARTICLES OF IMPEACHMENT AGAINST WILLIAM JEFFERSON
CLINTON
Mr. ABRAHAM. Mr. Chief Justice, I rise to oppose the motion
offered in the Court of Impeachment to dismiss the articles of
impeachment against President Clinton. To support the motion
would undermine the precedents and history of the impeachment
process laid out in the Constitution. To my knowledge, the only
instances in our history that the Senate has dismissed a
resolution of impeachment without voting up or down on at least
one of the articles sent over by the House was when the
impeached officer resigned before the Senate had the
opportunity to act. I do not think we should deviate from our
precedents on this occasion.
In voting on the motion to dismiss, we are supposed to
assume that even if the President did everything the House
claims he did, we should still dismiss the articles. So for
purposes of this motion, we have to assume that he committed
every act of obstruction of justice and witness tampering the
House has claimed and every instance of perjury before the
grand jury that the House claims. This would include perjury
before a grand jury sitting to help the Congress determine
whether the President committed impeachable offenses.
Mr. Chief Justice, I have by no means decided whether
President Clinton has done everything the House alleges. But if
I am to assume all these allegations are correct, I cannot see
how in good conscience I can support the motion to dismiss and
permit the President to stay in office.
------
SUPPORT OF THE MOTION TO DISMISS THE ARTICLES OF IMPEACHMENT AGAINST
PRESIDENT CLINTON
Mr. LIEBERMAN. Mr. Chief Justice, each Member of the Senate
is obligated today to render a judgment, a profound judgment,
about the conduct of President William Jefferson Clinton and
the call of the House of Representatives to remove him from
office. A motion to dismiss the two articles of impeachment
lodged against the President has been put before us, and so we
must now determine whether there are sufficient grounds to
continue with the impeachment trial, or whether we know enough
to reach a conclusion and end these proceedings.
I know enough from the record the House forwarded to us and
the public record to reach certain conclusions about the
President's conduct. President Clinton had an extramarital
sexual relationship with a young White House employee, which,
though consensual, was reckless and immoral, and thus raised a
series of questions about his judgment and his respect for the
office. He then made false and 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 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.
The question before us now is whether the President's
wrongdoing--as outlined in the two articles of impeachment--was
more than reprehensible, more than harmful, and in this case,
more than strictly criminal. We must now decide whether the
President's wrongdoing makes his continuance in office a threat
to our Government, our people, and the national interest. That
to me 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.''
This trial has now proceeded for 10 session days. 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. I have
listened intently throughout, and both the House managers and
the counsel for the President have been very impressive. 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 high crimes and
misdemeanors, and, most importantly, of what I believe to be in
the best interests of the Nation, I have concluded that the
facts do not meet the high standard the founders established
and do not justify removing this President from office.
It was for this reason that I decided today to vote in
favor of dismissing the articles of impeachment against
President Clinton, and against the motion to allow for the
testimony of live witnesses. I plan to submit a more detailed
statement explaining exactly how I arrived at these decisions
when the final votes are taken on the articles of impeachment.
But I do think it is important at this point to summarize my
arguments for voting to end the trial now.
I start from the indisputable premise that the founders
intended impeachment to be a measure of extreme last resort,
because it would disrupt the democratic process they so
carefully calibrated and would supersede the right of the
people to choose their leaders, which was at the heart of their
vision of the new democracy they were creating. That is why I
believe that the Constitutional standard in question here--
``high crimes and misdemeanors''--demands clear and convincing
evidence that the President committed offenses that, to borrow
from the words of Alexander Hamilton and James Madison
respectively, proceed from ``the abuse or violation of some
public trust,'' and that demonstrate a ``loss of capacity or
corruption.'' A review of the constitutional history convinces
me that impeachment was not meant to supplant the criminal
justice system but to provide a political remedy for offenses
so egregious and damaging that the President can no longer be
trusted to serve the national interest.
The House managers therefore had the burden of proving in a
clear and convincing way that the behavior on which the
articles of impeachment are based has irreparably compromised
the President's capacity to govern in the Nation's best
interest. I conclude that, as unsettling as their arguments
have been, they have not met that burden.
I base that conclusion in part on the factual context of
the President's actions. As the record makes abundantly clear,
the President's false and misleading statements under oath and
his broader deception and coverup stemmed directly from his
private sexual misconduct, something that no other sitting
American president to my knowledge has ever been questioned
about in a legal setting. On each occasion when I came close to
the brink of deciding to vote for one of the articles of
impeachment, I invariably came back to this question of context
and asked myself: Does this sordid story justify, for the first
time in our Nation's history, taking out of office the person
the American people chose to lead the country? Each time I
answered, ``no.''
The record shows that the President was not trying to
conceal public malfeasance or some heinous crime, like murder.
And I believe that distinction, while not determinative, does
matter. The American people, according to most public surveys,
also think that distinction matters--which helps us to
understand why the overwhelming majority of them can
simultaneously hold the views that the President has demeaned
his office and yet should not be evicted from it.
In noting this, I recognize that it would be a dereliction
of our duty to substitute public opinion polls for our reasoned
judgment 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 2 years ago.
In this case, the prevailing public opposition to
impeachment has particular relevance, for it provides
substantial evidence that the President's misconduct, while
harmful to his moral authority and his personal credibility,
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. Nearly two-thirds of them say repeatedly that they
approve of the job that President Clinton is doing and that
they oppose his removal, which means that, though they are
deeply disaffected by his personal behavior, they do not
believe that he has lost his capacity to govern in the national
interest.
In reaching my conclusion, I first had to determine that
the request of the House managers to bring witnesses to the
floor would not add to the record and the arguments that have
been made, or change my conclusion or the outcome of this
trial, which most Senators and observers agree will not end in
the President's removal. It is true that witnesses may add
demeanor evidence, but they will subtract from the Senate's
demeanor, and unnecessarily extend the trial for some time,
preventing the Senate from returning to the other pressing
business of the Nation.
Am I content to have this trial end in the articles failing
to receive the required two-thirds vote of the Senate for
removal? The truth is that nothing about this terrible national
experience leaves me comfortable. But an unequivocal,
bipartisan statement of censure by Congress would, at least,
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 Presidents. Such a
censure would bring better closure to this demeaning and
divisive episode, and help us begin to heal the injuries the
President's misconduct and the impeachment process'
partisanship have done to the American body politic, and to the
soul of the Nation.
------
MOTION TO TAKE DEPOSITIONS OF WITNESSES IN COURT OF IMPEACHMENT OF
WILLIAM JEFFERSON CLINTON
Mr. ABRAHAM. Mr. Chief Justice, there is a lot about this
impeachment process that is new and unfamiliar to all of us.
That is all the more reason why we should allow ourselves to be
guided by the Constitution and historical precedents in
deciding how we proceed. The Constitution's requirement that
the Senate ``shall have the sole Power to try all
Impeachments'' certainly suggests that the Senate will
ordinarily do more than simply look at the record made by the
House in deciding whether to send us articles of impeachment,
and that has generally been the Senate's practice.
Moreover, the Senate sitting as a Court of Impeachment is
charged with seeking the truth in this trial. If any Senators
reasonably believe that hearing witnesses would assist in
finding the truth, then I believe both the President and the
House should have the opportunity to call witnesses. Based on
the record before us and the arguments we have heard, it is
clear that at least on some of the House's charges, there are
factual issues in dispute that the witnesses whom this motion
proposes to subpoena for depositions could help us resolve.
It is for this reason, Mr. Chief Justice, that I support
the motion to allow both sides to depose these three witnesses.
I do not see why this limited discovery should in any way cause
this matter to be drawn out for any extended period of time.
Rather, I believe it can be conducted very expeditiously
without in any way jeopardizing the Senate's ability to conduct
other important legislative business.
------
Thursday, January 28, 1999
[From the Congressional Record]
The Senate met at 1:04 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Almighty God, thank You for the gift of vibrant confidence
based on vital convictions. We are confident in Your unlimited
power. Therefore, at no time are we helpless or hapless. Our
confidence is rooted in Your Commandments. Therefore, we are
strengthened by Your absolutes that give us enduring values.
Our courage is based on the assurance of Your ever-present,
guiding Spirit. Therefore, we will not fear. Our hope is rooted
in trust in Your reliability. Therefore, we will not be
anxious. Your interventions in trying times in the past have
made us hopeful thinkers for the future. Therefore, we trust
You.
You have called us to glorify You in the work here in this
Senate. Therefore, we give You our best for this day's
responsibilities. You have guided our beloved Nation through
difficult periods of discord and division in the past.
Therefore, we ask for Your help in the present deliberations of
the impeachment trial. Thank You for the courage that flows
from our unshakable confidence in You. Through our Lord and
Saviour. Amen.
The CHIEF JUSTICE. Senators will be seated. The Sergeant at
Arms will make the proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The Chair recognizes the majority leader.
order of procedure
Mr. LOTT. For the information of all of our colleagues--
obviously, they have already received the word by the fact that
they are not all present--but we are still attempting to reach
an agreement with respect to the remaining procedures for the
trial, particularly with regard to how and when the depositions
will be taken.
We have been making progress, but it is something we need
to be careful about. Hopefully, we will be able to reach an
agreement yet today. If agreement is reached, I expect it very
likely that a rollcall vote would be requested on that
agreement and, therefore, all Members should be aware of that.
We will notify them via the hotline system as the voting
schedule becomes clear. Certainly we will keep the Chief
Justice informed of our deliberations and when we anticipate
the need to reconvene.
recess
Mr. LOTT. But in view of the continuing negotiations and
conferences that are meeting at this time, I ask unanimous
consent the Senate stand in recess until the hour of 2 p.m.
today.
There being no objection, at 1:07 p.m., the Senate recessed
until 2:02 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, again, Mr. Chief Justice.
Order of Procedure
Mr. LOTT. Mr. Chief Justice, in an effort to get an
agreement on how to proceed, it is very important that all
parties are aware of the procedures that we are outlining and
that those include Senators on both sides of the aisle, the
House managers, the White House, the attorneys for the
witnesses. So it does take time.
Just as we were prepared to come in at 2 and move to a
resolution, questions were raised about a couple specific
points. We believe those questions need to be clarified for
certainty. Rather than continue to recess hour to hour, which I
know is not fair to the Chief Justice, I think it would be
better at this point to make sure Senators are aware that we
are working to get an agreement on this procedure. We need to
get that done today so the depositions can get underway with
the attorneys consulting with their clients Friday and
Saturday. Hopefully, the depositions will begin on Sunday and
Monday and be completed by Tuesday. But we are working on the
details of that.
This still could very well require a vote or two today or
even tomorrow. But we will make that announcement once it is
clear that it is going to take a recorded vote of one or more
and exactly how that would work.
We will keep the Chief Justice notified of the expected
timeframe and, as information becomes available, as to exactly
when we will come back into session, and whether or not or how
many votes will be required. We will get that information to
Senators.
Recess Subject to the Call of the Chair
Mr. LOTT. In view of all that, I ask unanimous consent that
the Senate stand in recess subject to the call of the Chair.
There being no objection, at 2:03 p.m., the Senate recessed
subject to the call of the Chair.
The Senate reassembled at 5:31 p.m., when called to order
by the Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice.
I thought we were ready to proceed. I see Senator Daschle
is not on the floor. He should be back momentarily. Maybe I can
explain a few details. He is returning now. We may still need a
little more time.
We thank you for your patience, and our colleagues on both
sides for their patience, as we have tried to work through the
details of these resolutions and how to proceed with the
depositions. There are a lot of details to it and everybody
needs to be relatively comfortable that they understand how it
will work. That is why it has taken this additional time.
I think we are to the point where we are ready to proceed.
I believe the way it will proceed is that we will have a
resolution which I will send to the desk, followed by a
substitute from Senator Daschle. Then Senator Daschle has
indicated that they may want to have a motion to go straight to
the articles of impeachment. That would require three votes.
Then we also, at that point, would make it clear the
depositions would begin on Monday, the 1st. It is our intent to
then go to those three votes. I also understand that the
parties are willing to waive the debate time on these issues.
With that explanation, I begin that process.
Relating to the Procedures Concerning the Articles of Impeachment
Against William Jefferson Clinton
Mr. LOTT. I send a resolution to the desk and ask unanimous
consent that it be read in its entirety by the clerk, and time
for the two parties be waived.
The CHIEF JUSTICE. The clerk will read the resolution in
its entirety.
Mr. LOTT. I believe there was a request for unanimous
consent.
The CHIEF JUSTICE. Without objection, the request is agreed
to.
The legislative clerk read as follows:
A resolution (S. Res. 30) relative to the procedures concerning the
Articles of Impeachment against William Jefferson Clinton.
Resolved,
TITLE I--PROCEDURES CONCERNING THE ARTICLES OF IMPEACHMENT AGAINST
WILLIAM JEFFERSON CLINTON
Sec. 101. That the deposition time for all witnesses be determined
by the Senate Majority Leader and Minority Leader, as outlined in
Senate Resolution 16, One Hundred Sixth Congress, First Session, and
title II of this resolution and that all Senators have an opportunity
to review all deposition material, which shall be made available at the
earliest possible time.
Sec. 102. When the Senate reconvenes on the day after completion of
the depositions, and the review period, it shall be in order for both
the House Managers and the President's counsel to move to resolve any
objections made during any deposition. After resolution of any such
motions, it shall be in order for the House Managers and/or White House
counsel to make a motion or motions to admit the depositions or
portions thereof into evidence, whether transcribed or on video tape
provided further for a presentation employing all or portions of such
tape, and it shall then be in order for the two Leaders jointly, only
to make motions for additional discovery because of new relevant
evidence discovered during the depositions. Motions may also then be
made for orders governing the presentation of evidence and/or the
testifying of witnesses before the Senate.
Sec. 103. If no such motions are made, or following the completion
of any procedures authorized as a result of the votes on any motions,
the White House shall have up to 24 hours to make any motions dealing
with testimony or evidence that the White House counsel deems
appropriate, as described previously.
Sec. 104. If no such motions are made, or no witnesses are called
to testify in the Senate, the Senate shall proceed to final arguments
as provided in the impeachment rules waiving the two person rule
contained in Rule XXII of the Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials for not to exceed six hours,
to be equally divided. If motions are agreed to regarding new evidence
or calling of new witnesses, this resolution is suspended.
Sec. 105. At the conclusion of the final arguments the parties
shall proceed in accordance with the rules of impeachment: Provided
however, That no motion with respect to re-opening the record in the
case shall be in order, and: Provided further, That it shall be in
order for a Senator to offer a motion to suspend the rules to allow for
open final deliberations with no amendments or motions to that motion
in order; and the Senate shall proceed to vote on the motion to suspend
the rules to provide for open Senate deliberations.
Sec. 106. Following that vote, and if no motions have been agreed
to as provided in sections 102 and 103, and no motions are agreed to
following the arguments, then the vote will occur on any pending
motions and amendments thereto and then on the articles of impeachment
no later than 12:00 noon on Friday, February 12, 1999.
TITLE II--TO AUTHORIZE ISSUANCE OF SUBPOENAS TO TAKE DEPOSITIONS IN THE
TRIAL OF THE ARTICLES OF IMPEACHMENT AGAINST WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES
Sec. 201. That, pursuant to Rules V and VI of the Rules of
Procedure and Practice in the Senate When Sitting on Impeachment
Trials, and S. Res. 16, 106th Congress, 1st Session, the Chief Justice
of the United States, through the Secretary of the Senate, shall issue
subpoenas for the taking of testimony on oral deposition to the
following witnesses: Sidney Blumenthal, Monica S. Lewinsky, and Vernon
E. Jordan, Jr.
Sec. 202. The Sergeant at Arms is authorized to utilize the
services of the Deputy Sergeant at Arms or any other employee of the
United States Senate in serving the subpoenas authorized to be issued
by this resolution.
Sec. 203. Depositions authorized by this resolution shall be taken
before, and presided over by, on behalf of the Senate, two Senators
appointed by the Majority Leader and the Democratic Leader, acting
jointly, one of whom shall administer to witnesses the oath prescribed
by Rule XXV of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials. Acting jointly, the presiding officers
shall have authority to rule, as an initial matter, upon any question
arising out of the deposition. All objections to a question shall be
noted by the presiding officers upon the record of the deposition, but
the examination shall proceed, and the witness shall answer such
question. A witness may refuse to answer a question only when necessary
to preserve a legally-recognized privilege, and must identify such
privilege cited if refusing to answer a question.
Sec. 204. Examination of witnesses at depositions shall be
conducted by the Managers on the part of the House or their counsel,
and by counsel for the President. Witnesses shall be examined by no
more than two persons each on behalf of the Managers and counsel for
the President. Witnesses may be accompanied by counsel. The scope of
the examination by the Managers and counsel for both parties shall be
limited to the subject matters reflected in the Senate record. The
party taking a deposition shall 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 record during the deposition.
No exhibits outside of the Senate record shall be employed, except for
articles and materials in the press, including electronic media. Any
party may interrogate any witness as if that witness were declared
adverse.
Sec. 205. The depositions shall be videotaped and a transcript of
the proceedings shall be made. The depositions shall be conducted in
private. No person shall be admitted to any deposition except for the
following: the witness, counsel for the witness, the Managers on the
part of the House, counsel for the Managers, counsel for the President,
and the presiding officers; further, such persons whose presence is
required to make and preserve a record of the proceedings in videotaped
and transcript forms, and employees of the Senate whose presence is
required to assist the presiding officers in presiding over the
depositions, or for other purposes, as determined after consultation by
the Majority Leader with the Democratic Leader. All present must
maintain the confidentiality of the proceedings.
Sec. 206. The presiding officers at the depositions shall file the
videotaped and transcribed records of the depositions with the
Secretary of the Senate, who shall maintain them as confidential
proceedings of the Senate. The Sergeant at Arms is authorized to make
available for review any of the videotaped or transcribed deposition
records to Members of the Senate, one designated staff member per
Senator, and the Chief Justice. The Senate may direct the Secretary of
the Senate to distribute such materials, and to use whichever means of
dissemination, including printing as Senate documents, printing in the
Congressional Record, photo- and video-duplication, and electronic
dissemination, he determines to be appropriate to accomplish any
distribution of the videotaped or transcribed deposition records that
he is directed to make pursuant to this section.
Sec. 207. The depositions authorized by this resolution shall be
deemed to be proceedings before the Senate for purposes of Rule XXIX of
the Standing Rules of the Senate, Senate Resolution 259, 100th
Congress, 1st Session, 2 U.S.C. Sec. Sec. 191, 192, 194, 288b, 288d,
288f, 18 U.S.C. Sec. Sec. 6002, 6005, and 28 U.S.C. Sec. 1365. The
Secretary shall arrange for stenographic assistance, including
videotaping, to record the depositions as provided in section 5. Such
expenses as may be necessary shall be paid from the Appropriation
Account--Miscellaneous Items in the contingent fund of the Senate upon
vouchers approved by the Secretary.
Sec. 208. The Secretary shall notify the Managers on the part of
the House, and counsel for the President, of this resolution.
The CHIEF JUSTICE. The Chair recognizes the minority
leader.
Amendment No. 1
Mr. DASCHLE. Mr. Chief Justice, I have an amendment that I
send to the desk.
The CHIEF JUSTICE. The clerk will read the amendment.
The legislative clerk read as follows:
The Senator from South Dakota [Mr. Daschle] proposes an amendment
numbered 1.
In the resolution strike all after the word ``that'' in the first
line and insert the following:
``the deposition time for all witnesses to be deposed be limited to no
later than close of business Wednesday, February 3 and that all
Senators have an opportunity to review all deposition material, which
shall be made available at the earliest possible time.
``When the Senate reconvenes the trial at 10 a.m. on Saturday,
February 6 it shall be in order to resolve any objections that may not
be resolved regarding the depositions; after these deposition
objections have been disposed of, it shall be in order for the House
managers and/or the White House counsel to make a motion, or motions to
admit the depositions or portions thereof into evidence, such motions
shall be limited to transcribed deposition material only;
``On Monday, February 8 there shall be 4 hours equally divided for
closing arguments; with the White House using the first 2 hours and the
House Republican managers using the final 2 hours; that
``Upon the completion of the closing arguments the Senate shall
begin final deliberation on the articles; a timely filed motion to
suspend the rules and open these deliberations shall be in order; upon
the completion of these deliberations the Senate shall, without any
intervening action, amendment, motion or debate, vote on the articles
of impeachment.
``Provided further, That the votes on the articles shall occur no
later than 12 noon Friday, February 12.''
The CHIEF JUSTICE. The Chair recognizes the Senator from
Utah, Mr. Hatch.
Mr. HATCH. Parliamentary inquiry, Mr. Chief Justice: Does
the majority leader's resolution, does that also keep open the
right of Senators to file----
The CHIEF JUSTICE. The Parliamentarian says it takes a
unanimous consent for a parliamentary inquiry.
Mr. HATCH. I ask unanimous consent I be permitted to ask
one question.
The CHIEF JUSTICE. Is there objection?
Without objection, it is so ordered.
Mr. HATCH. Does the majority leader's resolution allow for
the filing and consideration of motions that may not be
mentioned in the resolution itself?
The CHIEF JUSTICE. The Parliamentarian tells me it is never
the function of the Chair to interpret a resolution.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The majority leader.
Mr. LOTT. I believe the regular order is that now we would
go to a vote on the two resolutions. Just for the information
of Senators, after that, Senator Daschle may have a motion,
again, as I indicated earlier, just to go to a vote on the
articles of impeachment.
So there could be three votes now, in order, without
intervening debate. After that, Senator Daschle and I will
formally lock in the beginning time for the depositions.
I yield the floor.
The CHIEF JUSTICE. The first vote will be on the amendment
from the minority leader, the Senator from South Dakota.
The yeas and nays are required.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Colorado [Mr.
Allard] is necessarily absent.
Mr. REID. I announce that the Senator from Maryland [Ms.
Mikulski] is absent because of illness.
I further announce that, if present and voting, the Senator
from Maryland [Ms. Mikulski] would vote ``aye.''
The result was announced--yeas 44, nays 54, as follows:
[Rollcall Vote No. 6]
[Subject: Daschle amendment No. 1 to
S. Res. 30]
YEAS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NAYS--54
Abraham
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--2
Allard
Mikulski
The amendment (No. 1) was rejected.
The CHIEF JUSTICE. The question is on agreeing to S. Res.
30, the resolution offered by Senator Lott. On this question,
the yeas and nays are called for.
Mr. DASCHLE addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the minority
leader.
Mr. DODD. Mr. Chief Justice, the Senate is not in order.
The CHIEF JUSTICE. The Senate will be in order.
Amendment No. 2
Mr. DASCHLE. Mr. Chief Justice, I send an amendment to the
desk.
The CHIEF JUSTICE. The clerk will report.
The legislative clerk read as follows:
The Senator from South Dakota [Mr. Daschle] proposes an
amendment numbered 2.
In the resolution strike all after the word ``that'' in the
first line and insert the following:
``the Senate now proceed to closing arguments; that there be 2
hours for the White House counsel followed by 2 hours for the
House managers; and that at the conclusion of this time the
Senate proceed to vote, on each of the articles, without
intervening action, motion or debate, except for deliberations,
if so decided by the Senate.''
The CHIEF JUSTICE. The question is on the amendment just
read. The yeas and nays are automatic. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Colorado [Mr.
Allard] is necessarily absent.
Mr. REID. I announce that the Senator from Maryland [Ms.
Mikulski] is absent because of illness.
I further announce that, if present and voting, the Senator
from Maryland [Ms. Mikulski] would vote ``aye.''
The result was announced--yeas 43, nays 55, as follows:
[Rollcall Vote No. 7]
[Subject: Daschle amendment No. 2]
YEAS--43
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NAYS--55
Abraham
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feingold
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--2
Allard
Mikulski
The amendment (No. 2) was rejected.
The CHIEF JUSTICE. The majority leader.
Mr. LOTT. Mr. Chief Justice, I suggest the absence of a
quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LEAHY. Mr. Chief Justice, may we have order, please?
The CHIEF JUSTICE. The Senate will be in order.
Amendment No. 3
Mr. LOTT. Mr. Chief Justice, I send an amendment to the
desk modifying the last paragraph of page 3.
The CHIEF JUSTICE. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Mississippi [Mr. Lott] proposes an
amendment numbered 3.
On page 3, strike the words ``any pending motions and
amendments thereto and then on'' and insert the following at
the end of page 3 ``strike the period and insert, if all
motions are disposed of and final deliberations are
completed.''
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the amendment be agreed to and that the motion to reconsider be
laid upon the table.
The CHIEF JUSTICE. Without objection, it is so ordered.
The amendment (No. 3) was agreed to.
The CHIEF JUSTICE. The question is on the resolution, as
amended. The yeas and nays are automatic. The clerk will call
the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Colorado [Mr.
Allard] is necessarily absent.
Mr. REID. I announce that the Senator from Maryland [Ms.
Mikulski] is absent because of illness.
I further announce that, if present and voting, the Senator
from Maryland [Ms. Mikulski] would vote ``no.''
The result was announced--yeas 54, nays 44, as follows:
[Rollcall Vote No. 8]
[Subject: S. Res. 30 as amended]
YEAS--54
Abraham
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NOT VOTING--2
Allard
Mikulski
The resolution (S. Res. 30), as amended, was agreed to.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Modification To Title II
Mr. LOTT. Mr. Chief Justice, with regard to the beginning
of the depositions, I ask unanimous consent that title II of S.
Res. 30 be modified with the language I send to the desk.
The CHIEF JUSTICE. Without objection, it is so ordered.
The modification follows:
TITLE II--TO AUTHORIZE ISSUANCE OF SUBPOENAS TO TAKE DEPOSITIONS IN THE
TRIAL OF THE ARTICLES OF IMPEACHMENT AGAINST WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES
Sec. 201. That, pursuant to Rules V and VI of the Rules of Procedure
and Practice in the Senate When Sitting on Impeachment Trials, and
Senate Resolution 16, One Hundred Sixth Congress, First Session, the
Chief Justice of the United States, through the Secretary of the
Senate, shall issue subpoenas for the taking of testimony on oral
deposition to the following witnesses: Sidney Blumenthal, Monica S.
Lewinsky, and Vernon E. Jordon, Jr.
Sec. 202. The Sergeant at Arms is authorized to utilize the services
of the Deputy Sergeant at Arms or any other employee of the United
States Senate in serving the subpoenas authorized to be issued by this
resolution.
Sec. 203. Depositions authorized by this resolution shall be taken
before, and presided over by, on behalf of the Senate, two Senators
appointed by the Majority Leader and the Democratic Leader, acting
jointly, one of whom shall administer to witnesses the oath prescribed
by Rule XXV of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials. Acting jointly, the presiding officers
shall have authority to rule, as an initial matter, upon any question
arising out of the deposition. All objections to a question shall be
noted by the presiding officers upon the record of the deposition but
the examination shall proceed, and the witness shall answer such
question. A witness may refuse to answer a question only when necessary
to preserve a legally-recognized privilege, or constitutional right,
and must identify such privilege cited if refusing to answer a
question.
Sec. 204. Examination of witnesses at depositions shall be conducted
by the Managers on the part of the House or their counsel, and by
counsel for the President. Witnesses shall be examined by no more than
two persons each on behalf of the Managers and counsel for the
President. Witnesses may be accompanied by counsel. The scope of the
examination by the Managers and counsel for both parties shall be
limited to the subject matters reflected in the Senate record. The
party taking a deposition shall 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. No exhibits
outside of the Senate record shall be employed, except for articles and
materials in the press, including electronic media. Any party may
interrogate any witness as if that witness were declared adverse.
Sec. 205. The depositions shall be videotaped and a transcript of the
proceedings shall be made. The depositions shall be conducted in
private. No person shall be admitted to any deposition except for the
following: The witness, counsel for the witness, the Managers on the
part of the House, counsel for the Managers, counsel for the President,
and the presiding officers; further, such persons whose presence is
required to make and preserve a record of the proceedings in videotaped
and transcript forms, and Senate staff members whose presence is
required to assist the presiding officers in presiding over the
depositions, or for other purposes, as determined by the Majority
Leader and the Democratic Leader. All present must maintain the
confidentiality of the proceedings.
Sec. 206. The presiding officers at the depositions shall file the
videotaped and transcribed records of the depositions with the
Secretary of the Senate, who shall maintain them as confidential
proceedings of the Senate. The Sergeant at Arms is authorized to make
available for review at secure locations, any of the videotaped or
transcribed deposition records to Members of the Senate, one designated
staff member per Senator, and the Chief Justice. The Senate may direct
the Secretary of the Senate to distribute such materials, and to use
whichever means of dissemination, including printing as Senate
documents, printing in the Congressional Record, photo- and video-
duplication, and electronic dissemination, he determines to be
appropriate to accomplish any distribution of the videotaped or
transcribed deposition records that he is directed to make pursuant to
this section.
Sec. 207. The depositions authorized by this resolution shall be
deemed to be proceedings before the Senate for purposes of Rule XXIX of
the Standing Rules of the Senate, Senate Resolution 259, One Hundredth
Congress, First Session, sections 191, 192, 194, 288b, 288d, 288f of
title 2, United States Code, sections 6002, 6005 of title 18, United
States Code, and section 1365 of title 28, United States Code. The
Secretary shall arrange for stenographic assistance, including
videotaping, to record the depositions as provided in section 205. Such
expenses as may be necessary shall be paid from the Appropriation
Account--Miscellaneous Items in the contingent fund of the Senate upon
vouchers approved by the Secretary.
Sec. 208. The Majority and Minority Leaders, acting jointly, may make
other provisions for the orderly and fair conduct of these depositions
as they seem appropriate.
Sec. 209. The Secretary shall notify the Managers on the part of the
House, and counsel for the President, of this resolution.
The resolution (S. Res. 30), as amended, as modified, reads
as follows:
S. Res. 30
Resolved,
TITLE I--PROCEDURES CONCERNING THE ARTICLES OF IMPEACHMENT AGAINST
WILLIAM JEFFERSON CLINTON
Sec. 101. That the deposition time for all witnesses be determined by
the Senate Majority Leader and Minority Leader, as outlined in Senate
Resolution 16, One Hundred Sixth Congress, First Session, and title II
of this resolution and that all Senators have an opportunity to review
all deposition material, which shall be made available at the earliest
possible time.
Sec. 102. When the Senate reconvenes on the day after completion of
the depositions, and the review period, it shall be in order for both
the House Managers and the President's counsel to move to resolve any
objections made during any deposition. After resolution of any such
motions, it shall be in order for the House Managers and/or White House
counsel to make a motion or motions to admit the depositions or
portions thereof into evidence, whether transcribed or on videotape
provided further for a presentation employing all or portions of such
tape, and it shall then be in order for the two Leaders jointly, only
to make motions for additional discovery because of new relevant
evidence discovered during the depositions. Motions may also then be
made for orders governing the presentation of evidence and/or the
testifying of witnesses before the Senate.
Sec. 103. If no such motions are made, or following the completion of
any procedures authorized as a result of the votes on any motions, the
White House shall have up to 24 hours to make any motions dealing with
testimony or evidence that the White House counsel deems appropriate,
as described previously.
Sec. 104. If no such motions are made, or no witnesses are called to
testify in the Senate, the Senate shall proceed to final arguments as
provided in the impeachment rules waiving the two person rule contained
in Rule XXII of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials for not to exceed six hours, to be
equally divided. If motions are agreed to regarding new evidence or
calling of new witnesses, this resolution is suspended.
Sec. 105. At the conclusion of the final arguments the parties shall
proceed in accordance with the rules of impeachment: Provided however,
That no motion with respect to reopening the record in the case shall
be in order, and: Provided further, That it shall be in order for a
Senator to offer a motion to suspend the rules to allow for open final
deliberations with no amendments or motions to that motion in order;
and the Senate shall proceed to vote on the motion to suspend the rules
to provide for open Senate deliberations.
Sec. 106. Following that vote, and if no motions have been agreed to
as provided in sections 102 and 103, and no motions are agreed to
following the arguments, then the vote will occur on the articles of
impeachment no later than 12:00 noon on Friday, February 12, 1999, if
all motions are disposed of and final deliberations are completed.
TITLE II--TO AUTHORIZE ISSUANCE OF SUBPOENAS TO TAKE DEPOSITIONS IN THE
TRIAL OF THE ARTICLES OF IMPEACHMENT AGAINST WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES
Sec. 201. That, pursuant to Rules V and VI of the Rules of Procedure
and Practice in the Senate When Sitting on Impeachment Trials, and
Senate Resolution 16, One Hundred Sixth Congress, First Session, the
Chief Justice of the United States, through the Secretary of the
Senate, shall issue subpoenas for the taking of testimony on oral
deposition to the following witnesses: Sidney Blumenthal, Monica S.
Lewinsky, and Vernon E. Jordon, Jr.
Sec. 202. The Sergeant at Arms is authorized to utilize the services
of the Deputy Sergeant at Arms or any other employee of the United
States Senate in serving the subpoenas authorized to be issued by this
resolution.
Sec. 203. Depositions authorized by this resolution shall be taken
before, and presided over by, on behalf of the Senate, two Senators
appointed by the Majority Leader and the Democratic Leader, acting
jointly, one of whom shall administer to witnesses the oath prescribed
by Rule XXV of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials. Acting jointly, the presiding officers
shall have authority to rule, as an initial matter, upon any question
arising out of the deposition. All objections to a question shall be
noted by the presiding officers upon the record of the deposition but
the examination shall proceed, and the witness shall answer such
question. A witness may refuse to answer a question only when necessary
to preserve a legally-recognized privilege, or constitutional right,
and must identify such privilege cited if refusing to answer a
question.
Sec. 204. Examination of witnesses at depositions shall be conducted
by the Managers on the part of the House or their counsel, and by
counsel for the President. Witnesses shall be examined by no more than
two persons each on behalf of the Managers and counsel for the
President. Witnesses may be accompanied by counsel. The scope of the
examination by the Managers and counsel for both parties shall be
limited to the subject matters reflected in the Senate record. The
party taking a deposition shall 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. No exhibits
outside of the Senate record shall be employed, except for articles and
materials in the press, including electronic media. Any party may
interrogate any witness as if that witness were declared adverse.
Sec. 205. The depositions shall be videotaped and a transcript of the
proceedings shall be made. The depositions shall be conducted in
private. No person shall be admitted to any deposition except for the
following: The witness, counsel for the witness, the Managers on the
part of the House, counsel for the Managers, counsel for the President,
and the presiding officers; further, such persons whose presence is
required to make and preserve a record of the proceedings in videotaped
and transcript forms, and Senate staff members whose presence is
required to assist the presiding officers in presiding over the
depositions, or for other purposes, as determined by the Majority
Leader and the Democratic Leader. All present must maintain the
confidentiality of the proceedings.
Sec. 206. The presiding officers at the depositions shall file the
videotaped and transcribed records of the depositions with the
Secretary of the Senate, who shall maintain them as confidential
proceedings of the Senate. The Sergeant at Arms is authorized to make
available for review at secure locations, any of the videotaped or
transcribed deposition records to Members of the Senate, one designated
staff member per Senator, and the Chief Justice. The Senate may direct
the Secretary of the Senate to distribute such materials, and to use
whichever means of dissemination, including printing as Senate
documents, printing in the Congressional Record, photo- and video-
duplication, and electronic dissemination, he determines to be
appropriate to accomplish any distribution of the videotaped or
transcribed deposition records that he is directed to make pursuant to
this section.
Sec. 207. The depositions authorized by this resolution shall be
deemed to be proceedings before the Senate for purposes of Rule XXIX of
the Standing Rules of the Senate, Senate Resolution 259, One Hundredth
Congress, First Session, sections 191, 192, 194, 288b, 288d, 288f of
title 2, United States Code, sections 6002, 6005 of title 18, United
States Code, and section 1365 of title 28, United States Code. The
Secretary shall arrange for stenographic assistance, including
videotaping, to record the depositions as provided in section 205. Such
expenses as may be necessary shall be paid from the Appropriation
Account--Miscellaneous Items in the contingent fund of the Senate upon
vouchers approved by the Secretary.
Sec. 208. The Majority and Minority Leaders, acting jointly, may make
other provisions for the orderly and fair conduct of these depositions
as they seem appropriate.
Sec. 209. The Secretary shall notify the Managers on the part of the
House, and counsel for the President, of this resolution.
Unanimous Consent Agreement
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the unanimous consent agreement I send to the desk be agreed
to. This all deals with the taking of depositions.
The CHIEF JUSTICE. Without objection, it is so ordered.
The text of the unanimous consent agreement reads as
follows:
I ask unanimous consent that the time and place to take
depositions in the trial of the articles of impeachment against
William Jefferson Clinton be decided jointly by the majority
leader, and the Democratic leader, and shall be set forth in
each subpoena.
I further ask unanimous consent that the opportunity for
taking depositions of Monica Lewinsky, Vernon Jordan and Sidney
Blumenthal expires when the Senate convenes on Thursday, Feb.
4, 1999.
Finally I ask unanimous consent that each deposition may
last no more than 8 hours, unless the majority leader, and the
Democratic leader determine on a deposition-by-deposition
basis, to extend the time of the deposition, and all the time
allotted for examination shall be divided equally between the
parties, and time consumed by objections shall not be charged
to either objecting party.
Mr. LOTT. Now, I understand, Mr. Chief Justice, that the
Democratic leader is prepared to agree that the depositions
will begin on Monday, February 1, and with this having been
decided, and the vote we just took, we have discussed the
schedule for the remainder of the week. In view of the fact
that at this point the parties will begin to prepare for
depositions and the depositions will begin on Monday, Members
will not be expected to be here for any business before
Wednesday, but we could be required to have a session Wednesday
afternoon.
I want to emphasize that as the deposition material becomes
available, we will have the Sergeant at Arms have it in a room
for Members to begin to review. So beginning Tuesday, for
Senators who would like to begin reviewing the depositions, the
material in the depositions, it will be available in
installments as it becomes available on Tuesday. So you would
have that opportunity Tuesday and Wednesday. Not later than
Thursday, then, we would go to the next phase of our agreement
that we have voted on.
At this time, we are notifying the Members that there will
be no further recorded votes and no further business while we
await returning of the depositions through Friday, Saturday,
Sunday, Monday, and Tuesday, but Members should expect to be
here on Wednesday and they would need to be here on Wednesday,
in order to begin to make sure they have had time to review the
documents, the deposition material, so that we can proceed,
then, on Thursday.
Mr. HARKIN. Will the Senator yield?
Mr. LOTT. I yield.
Mr. HARKIN. Are Senators allowed to attend these
depositions or not?
Mr. LOTT. Under the agreement we just passed, Mr. Chief
Justice, if I may proceed and respond to that question.
The CHIEF JUSTICE. Without objection.
Mr. LOTT. There will be a Senator from each side at the
depositions who will preside over the depositions. Senator
Daschle and I also will have certain staff there, but a Senator
other than the two presiding Senators would not be in order to
what we agreed to. There will be one from each side who will be
presiding and will actually make determinations when objections
are made.
------
ADJOURNMENT UNTIL 1 P.M. THURSDAY, FEBRUARY 4, 1999
Mr. LOTT. I now ask unanimous consent that the Court of
Impeachment stand in adjournment until the hour of 1 p.m. on
Thursday, February 4.
There being no objection, at 6:34 p.m. the Senate, sitting
as a Court of Impeachment, adjourned until Thursday, February
4, 1999, at 1 p.m.
THE IMPEACHMENT OF PRESIDENT WILLIAM JEFFERSON CLINTON
Mr. CLELAND. Mr. Chief Justice, let me begin by saying that
the reason we are here today, the reason the United States
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
a 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 a 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 11, 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 public 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 considerations 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 Senator, the bar for impeachment and
removal from office of a President must be a high one. 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. 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 the 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.
------
MOTIONS TO DISMISS AND TO SUBPOENA WITNESSES
Mr. FEINGOLD. Mr. Chief Justice, during yesterday's
impeachment trial proceedings, I voted against the motion to
dismiss offered by the senior Senator from West Virginia, Mr.
Byrd. I also voted in favor of allowing the House managers to
depose a limited number of witnesses in this case. I would like
to explain the reasons for my votes.
Let me state first that I understand that this trial is a
unique proceeding; it is not precisely a ``trial'' as we
understand that term to be used in the criminal context. The
Senate, for example, as the Chief Justice made clear in
upholding Senator Harkin's objection early in the trial, is
both judge and jury, with the final authority to determine not
only the ``guilt'' or ``innocence'' of the defendant, but also
the legal standard to apply and what kind of evidence is
relevant to the decision.
Nonetheless, Senator Byrd's motion was a motion to dismiss,
which I believe gives the motion a legal connotation we must
not ignore. I believe that in order to dismiss the case at this
point, a Senator should be of the opinion that it is not
possible for the House managers to show that the President has
committed high crimes and misdemeanors, even if they are
permitted to call the witnesses that they want to call. Even
apart from the possibility of witness testimony, in order to
vote for the motion, a Senator should believe that regardless
of what occurs in the closing arguments by the parties and in
deliberations in the Senate, that a Senator would not vote to
convict.
So for me, this motion to dismiss was akin to asking the
judge in this case not to send the case to the jury. In a
criminal trial, there is a strong presumption against taking a
case out of the hands of the jury, and a very high degree of
certainty on the facts of the case is demanded before a judge
will take that step. Indeed, a judge must decide that a
reasonable juror viewing the evidence in the light most
favorable to the prosecution could not vote to convict the
defendant, before he will direct a judgment of acquittal.
My view, as of this moment, is that to dismiss this case
would in appearance and in fact improperly ``short circuit''
this trial. I simply cannot say that the House managers cannot
prevail regardless of what witnesses might plausibly testify
and regardless of what persuasive arguments might be offered
either by the managers or by Senators who support conviction.
When the history of this trial is written, I want it to be
viewed as fair and comprehensive, not as having been shortened
merely because the result seemed preordained.
As Senator Collins and I indicated in a letter to Senator
Byrd on Saturday and in a unanimous consent request we offered
on Monday, my preference would have been to divide the motion
to dismiss and allow separate votes on the two articles of
impeachment to more closely approximate the separate final
votes on the two articles contemplated by the impeachment
rules. It would have allowed the Senate to consider the
strength of the evidence presented on the two separate articles
and the possibility that one of the articles comes closer to
the core meaning of high crimes and misdemeanors than the
other.
I believe that many of my colleagues on the Republican side
view the perjury article as less convincing than the
obstruction article and might have voted to dismiss it had the
opportunity to do that been made available. But we will never
know. When a final vote is taken on the articles, and I now
believe such votes will almost certainly occur, I hope that my
colleagues who did not vote to dismiss the case today will
carefully consider the two articles separately.
I want to be clear that my vote not to dismiss this case
does not mean that I would vote to convict the President and
remove him from office or that I am leaning in that direction.
I have not reached a decision on that question. It is my
inclination, however, to demand a very high standard of proof
on this question. Because the House managers have relied so
heavily on the argument that the President has committed the
Federal crimes of perjury and obstruction of justice as the
reason that his conduct rises to the level of high crimes and
misdemeanors, they probably should be required to prove each
element of those crimes beyond a reasonable doubt. That is the
standard that juries in criminal proceedings must apply. In
this case, where the ``impeachability'' question rests so much
on a conclusion that the President's conduct was not only
reprehensible but also criminal, I currently believe that
standard is the most appropriate for a Senator to apply.
It is my view at this point that the House managers' case
has some serious problems, and I am not certain that it can be
helped by further testimony from witnesses. But I believe it is
possible that it can. The managers deserve the opportunity to
take the depositions they have requested.
In voting against the motion to dismiss and to allow
witnesses to be subpoenaed, I have not reached the important
question of whether, even if the House managers manage to prove
their case beyond a reasonable doubt, the offenses charged
would be ``impeachable'' and require the President to be
removed from office. That is an important question that I
decided should be addressed in the context of a final vote on
the articles after the evidentiary record is complete.
Therefore, I want to be clear that my vote against the motion
does not mean I am leaning in favor of a final vote to convict
the President. I am not.
But I have determined, after much thought, that we must
continue to move forward and not truncate the proceeding at
this point. I believe that it is appropriate for the House
managers, and if they so choose, the President's counsel, to be
able to depose and possibly to present the live testimony of at
least a small number of witnesses. And I want to hear final
arguments and deliberate with my colleagues before rendering a
final verdict on the articles.
I reached my decision on witnesses for a number of reasons.
First, although I recognize that this is not a typical,
ordinary criminal trial, it is significant and in my mind
persuasive that in almost all criminal trials witnesses are
called by the prosecution in trying to prove its case. Because
I have decided that the House managers probably must be held to
the highest standard of proof--beyond a reasonable doubt--I
believe that they should have every reasonable opportunity to
meet that standard and prove their case.
Furthermore, witnesses have been called every time in our
history that the Senate has held an impeachment trial. In two
cases, the impeachment of Senator Blount in 1797 and the
impeachment of Judge English in 1926, articles of impeachment
passed by the House were dismissed without a trial. I recognize
that an unusually exhaustive factual record has been assembled
by the Independent Counsel, including numerous interviews with,
and grand jury testimony from, key witnesses. That
distinguishes this case from a number of past impeachments. But
in at least the three judicial impeachments in the 1980s, the
record of a full criminal trial--two resulting in conviction
and one in acquittal--was available to the Senate and still
witnesses testified.
In this case, the House managers strenuously argued that
witnesses should be called. It would call the fairness of the
process into question were we to deny the House managers the
opportunity to depose at least those witnesses that might shed
light on the facts in a few key areas of disagreement in this
case. I regard this as a close case in some respects, and the
best course to follow is to allow both sides a fair opportunity
to make the case they wish to make.
This does not mean that I support an unlimited number of
witnesses or an unnecessarily extended trial. Furthermore, at
this point, I am reserving judgment on the question of whether
live testimony on the Senate floor should be permitted. I
believe the Senate has the power, and should exercise the
power, to assure that any witnesses called to deliver live
testimony have evidence that is truly relevant to present.
In this regard, I think we should allow somewhat greater
latitude to the President's counsel since he is the defendant
in this proceeding. I am inclined to give a great deal of
deference to requests by the President's counsel to conduct
discovery and even call additional witnesses if they believe
that is necessary. But at least with respect to the House
manager's case, while we must be fair in allowing them to
depose the witnesses they say they need to prove their case, we
need not allow them to broaden their case beyond the acts
alleged in the articles or inordinately extend the trial with
witnesses who cannot reasonably be expected to provide evidence
relevant to our decision on those articles.
Finally, let me reiterate. My vote against the motion to
dismiss should not be interpreted as a signal that I intend to
vote to convict the President. Nor does it mean that I would
not support a motion to adjourn or a motion to dismiss offered
at some later stage of this trial, although I strongly prefer
that this trial conclude with a final vote on the articles. It
only means that I do not believe that dismissing the case at
this moment is the appropriate course for the Senate to follow.
------
MOTION OF THE HOUSE MANAGERS FOR THE APPEARANCE OF WITNESSES AT
DEPOSITIONS AND TO ADMIT EVIDENCE
Mr. LEAHY. Mr. Chief Justice, the House managers want to
conduct depositions of at least four people and their requests
to admit affidavits could very well lead to the depositions of
at least three others and, indeed, many more witnesses. The
three people they expressly ask be subpoenaed are Monica
Lewinsky, Vernon Jordan and Sidney Blumenthal. All three have
previously testified before the Starr grand jury and Ms.
Lewinsky has been interviewed or testified at least 23 times on
these matters over the last year.
The fourth deponent requested by the House managers is none
other than the President of the United States. Although they
characterize their request as a ``petition'' that the President
be requested to appear, in their memorandum, the House
Republican managers are less coy about their request. They note
that ``obtaining testimony from the witness named in the
motion, and additionally from the President himself'' is what
they seek.
The House managers' request is unprecedented in
impeachments. The Senate has never formally requested or
demanded that a respondent testify in his own impeachment
trial. Should the President decide that he wants to speak to
the Senate, that would be his choice. But I cannot support an
effort that would have the Senate reject over 200 years of our
jurisprudence and begin requiring an accused to prove his
innocence.
The presumption of innocence is a core concept in our rule
of law and should not be so cavalierly abandoned. The petition
of the House managers is a clever but destructive effort to
stand this trial on its head. As a former prosecutor and trial
attorney, I appreciate the temptation to turn the tables on an
accused person to make up for a weak case, but the Senate
should not condone it. The burden of proof is on the House to
establish why the Senate should convict and remove from office
the person the American people elected to serve as their
President.
I commend President Clinton for focusing on his duties as
President and on moving the country forward. That the Congress
remains immersed in this impeachment trial is distraction
enough from the functions of our Federal Government. We have
heard hours of argument from the House Republican managers and
the response of the President's lawyers. Senator Byrd has,
pursuant to our unanimous consent resolution governing these
proceedings, offered a motion to dismiss to bring this entire
matter to conclusion. If, on the other hand, the majority in
the Senate wishes to continue these proceedings, that is the
majority's prerogative.
The House managers apparently want to excuse the weaknesses
in their case by blaming the Senate for not calling the
President to the stand or the President for not volunteering to
run the gauntlet of House managers. Having had the House reject
their proposed article of impeachment based on the President's
deposition in the Jones case, the House managers are left to
pursue their shifting allegations of perjury before the grand
jury. Their allegations of perjury have devolved to semantical
differences and the choice of such words as ``occasional'' and
``on certain occasions.'' Their view of perjury allows them to
take a part of a statement out of context and say that it is
actionable for not explicating all relevant facts and
circumstances. They view perjury by a standard that would
condemn most presentations, even some of their own
presentations before the Senate.
In addition to their request that the President be deposed,
the House Republican managers also propose to include in this
record affidavits and other materials apparently not part of
the record provided by Mr. Starr or considered by the House.
Ironically, in so doing, they have chosen to proceed by
affidavit. They must know that by proffering the declaration of
an attorney for Paula Jones about that case and the link
between that now settled matter and the Starr investigation,
they are necessarily opening this area to possible extensive
discovery that could result in the depositions of additional
witnesses, as well.
Does anyone think that the Senate record can fairly be
limited to the proffered declaration of Mr. Holmes without
giving the President an opportunity to depose him and other
relevant witnesses after fair discovery? The links between the
Jones case and the Starr investigation will be fair game for
examination in the fullness of time if the Holmes declaration
proffered by the House managers is accepted.
The Holmes declaration is at variance with the House
managers' proffer. The declaration suggests that the Jones
lawyers made a collective decision, whereas the House managers
suggest that the decision to subpoena Ms. Currie was Mr.
Holmes' decision. Mr. Holmes declares that no Washington Post
article played any part in his decisionmaking to subpoena Ms.
Currie and that he ``does not recall'' any attorney in his firm
saying anything about such an article ``in the discussions in
which we decided to subpoena Ms. Currie.'' This could lead to
discovery from a number of Jones lawyers.
The Holmes declaration says that the Jones lawyers ``had
received what [they] considered to be reliable information that
Ms. Currie was instrumental in facilitating Monica Lewinsky's
meetings with Mr. Clinton and that Ms. Currie was central to
the `cover story' Mr. Clinton and Ms. Lewinsky had developed to
use in the event their affair was discovered.'' That assertion
was strongly omitted from the House Republican managers'
proffer. That assertion raises questions about what the Jones
lawyers knew, when they knew it and whether there was any link
to the Starr investigation. If the purpose of the declaration
is to rebut the notion that Ms. Currie was subpoenaed because
the Jones lawyers were following the activities of the Starr
investigation, this declaration falls far short of the mark. It
raises more questions that it resolves.
I am surprised to see a judicial clerk submit an affidavit
in this case. The one thing that is clear from Mr. Ward's
affidavit is that it does not support the conclusions drawn in
the House managers' proffer. Mr. Ward says only that President
Clinton was looking directly at Mr. Bennett at one moment
during the argument by the lawyers during the deposition. He
does not aver, as the House managers suggest he would
competently testify, that ``he saw President Clinton listening
attentively to Mr. Bennett's remarks.''
While the affidavit of Barry Ward cannot convert the
President's silence into statements, it does provide one
perspective on the President's deposition in the Jones case.
Accepting that proffered evidence may, however, prompt the
President's lawyers to want to examine other perspectives to
give the Senate a more complete picture and a fairer
opportunity to consider what was happening during the
discussions among Judge Wright and the lawyers. For that
purpose, is the Senate next going to authorize the deposition
of Judge Wright and the other lawyers who attended the
deposition? The circumstances under which Mr. Ward came to take
such an affidavit and what he knows about the variety of issues
mentioned in the House managers' proffer on this item will
undoubtedly be fair subjects of discovery by the President's
lawyers if this is admitted.
The House managers characterized documents as certain
telephone records and the participants in various telephone
calls whose identities are not revealed by the records. Indeed,
those proffered documents are without authentification. The
House Republican managers' brief goes even farther, suggesting
that the telephone records will prove what happened at the
White House gate on December 6, and asserting the identity of
those who participated in telephone calls and the content of
those telephone calls and concluding that they prove meetings
and conversations that were not even by telephone. The
documents appear to be a series of numbers. Giving them content
and context will require more than mere authentification. Any
such testimonial explanation can be expected to engender
further discovery, as well.
Now let me turn to the witnesses that the House managers
have identified by name and for which they are expressly
seeking subpoenas at the outset of this discovery period. I
understand that under Senate Resolution 16 Senators must vote
for or against the entire package of witnesses and discovery
requested by the House.
The House Republican managers have already interviewed
Monica Lewinsky after Mr. Starr arranged for that interview and
had her ordered to comply. In light of the circumstances under
which she has already been forced to cooperate with the House
Republican managers, any doubt as to the coercion being
exercised through her immunity agreement could not be more
starkly seen. I seriously question Ms. Lewinsky's freedom to
express herself in the present circumstances and suggest that
her immunity situation will inevitably affect the credibility
of anything that she might ``add'' to the House's case. Mr.
Starr has the equivalent of a loaded gun to her head, along
with her mother's and her father's.
Consider also the report in The Washington Post on Tuesday
that Mr. Starr tore up her immunity agreement once before when
she tried to clarify her February 1998 proffer to note that she
and the President had talked about using a ``cover story''
before she was ever subpoenaed as a witness in the Jones case,
not after. That is now a key point of the House managers'
proffer but it points now in the other direction by suggesting
that she is now willing to testify that the President
``instructed'' her to invoke cover stories if questioned in
connection with the Jones case. Would not such a shift in
testimony necessarily lead to discovery into the impact of the
immunity agreement on her testimony and the many twists and
turns in the 7-month negotiation between Mr. Starr and Ms.
Lewinsky's attorneys and the pressures exerted upon her over
the last 6 months?
Moreover, press accounts of the celebrated interview of Ms.
Lewinsky by the House managers last weekend suggest that she
may also have said things during that interview that were
favorable to the President. The President's counsel are now in
the untenable position of having to oppose the House managers'
motion without specific knowledge of any exculpatory
information that Ms. Lewinsky may have provided that would
weigh against the need to call her as a witness. That is unfair
and contrary to basic precepts of our law. The House managers
created this circumstance and should not benefit from it.
The House managers also insist that they must open
discovery to take the deposition of Vernon Jordan. Mr. Jordan
has been interviewed or testified under oath before Starr's
grand jury at least five times already. The House managers'
proffer is merely that they expect that his live testimony will
lead to reasonable and logical inferences that might help their
case and somehow link the job search to discouraging her
testimony in the Jones case. That is not a proffer of anything
new but an attempt to take another shot at eliciting testimony
that Mr. Starr could not.
The House managers also insist that the Senate must depose
Sidney Blumenthal. Mr. Blumenthal also testified before the
Starr grand jury. The House managers' proffer notes nothing new
that he would be expected to provide.
If the President has been willing to forego the opportunity
to cross-examine the witnesses whose grand jury testimony has
been relied upon by the House managers, that removes the most
pressing need for further discovery in this matter. After all,
Ms. Lewinsky and Mr. Jordan, and to a lesser extent, Mr.
Blumenthal, were interviewed for days and weeks by the FBI,
trained investigators, Mr. Starr's lawyers and then testified,
some repeatedly, before the Starr grand jury. That is about as
one-sided as discovery 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 remains under a very clear threat of
prosecution, even though she has a limited grant of immunity
from Starr. This special prosecutor has shown every willingness
to threaten and prosecute.
If the President has not initiated efforts to obtain more
discovery and witnesses and is willing to have the matter
decided on the voluminous record submitted to the House, the
House managers carry a heavy burden to justify extending these
proceedings further and requiring the reexamination of people
who have already testified.
I heard over and over from the House managers that there is
no doubt, that the record established before the House and
introduced into this Senate proceeding convinced the House to
vote for articles of impeachment to require the removal of the
President from office last month. The House managers have told
us that they have done a magnificent job and established their
case.
Based on the House managers' motion and their proffer in
justification, I do not believe that they have justified
extending these proceedings into the future through additional
depositions and additional evidence. Can anyone confidently
predict how many witnesses will be needed to sort through the
evidentiary supplement that the House proffers and the issues
that it raises? Can anyone confidently predict how long that
discovery will take and how long this trial will be extended?
And for what? What is the significant and ultimate materiality
to the fundamental issues being contested at this trial of the
materials the House is moving now to include in the record?
Although the House managers can say that they only sought to
depose three witnesses, does anyone think that in fairness the
President's lawyers and the House managers together will not
end up deposing at least 10 people if the Senate were to grant
the House motion?
The Senate should not extend these proceedings by a single
day. The Senate runs a grave risk of being drawn down into the
mire that stained the House impeachment proceedings.
Republicans and Democrats have all told me that they do not
believe that there is any possibility that this trial will end
in the conviction of the President and his removal. In that
light, the Senate should have proceeded to conclude this matter
rather than extend it.
------
MOTION TO DISMISS THE ARTICLES OF IMPEACHMENT AGAINST WILLIAM JEFFERSON
CLINTON
Mr. LEAHY. Mr. Chief Justice, this Senate is the last of
the 20th century. We begin this first session of the 106th
Congress facing a challenge that no other Senate in over 100
years has been called upon to meet; namely, whether to remove
from office the person the American people elected to serve as
the President of the United States.
What we do in this impeachment of the President, in terms
of the standards we apply and the judgments we make, will
either follow the Constitution or alter the intent of the
framers for all time. I have heard more than one Senator
acknowledge that in that sense it is not just the President but
also the Senate that is on trial in this matter.
The Senate now has an opportunity, as provided in S. Res.
16, to vote on a motion to conclude these proceedings by
adopting Senator Byrd's motion to dismiss. I commend Senator
Byrd and agree with him that such action is both appropriate
and in the best interests of the Nation. I do not believe that
the House managers have proven a case for conviction and
removal of the President on the articles of impeachment sent by
the House last year. I further suggest that those articles are
improperly vague and duplicitous.
We can all agree that the President's conduct with a young
woman in the White House 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.
His conduct in trying to keep his illicit relationship secret
from his wife and family, his friends and associates, and from
the glare of a politically charged lawsuit and from the
American public, though understandable on a human level, has
had terrible consequences for him personally and for the legacy
of his Presidency.
Last week, Senator Bumpers reminded us of the human costs
that have been paid by this President and his family. The
underlying lawsuit has now been settled and a financial
settlement of $850,000 has been paid on a case that the
District Court judge had dismissed for failing to state a
claim. The President has admitted terribly embarrassing
personal conduct before a Federal grand jury, has seen a
videotape of that grand jury testimony broadcast to the entire
Nation which had excerpts replayed over and over, again.
Articles of impeachment were reported by the House of
Representatives against a President for only the second time in
our history.
The question before the Senate is not whether William
Jefferson Clinton has suffered, for surely he has as a result
of his conduct. The question is not even whether William
Jefferson 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. The question, as framed
by the House, is whether his conduct violated Federal criminal
laws and, if he did, whether those crimes constitute ``other
high crimes and misdemeanors'' warranting his removal from the
office of President to which he was reelected by the people of
the United States in 1996.
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.''
In the case of President William Jefferson Clinton, things
became personal a long time ago. I am not alone in questioning
Mr. Starr's conduct. His own ethics advisor felt compelled to
resign his position after Mr. Starr appeared before the House
Judiciary Committee as the head cheerleader for impeachment.
It now appears that Mr. Starr has gone from head
cheerleader to the chief prosecutor for impeachment. Over the
last week he forced Ms. Lewinsky to cooperate with the House
Republican managers as part of her immunity agreement. She must
``cooperate'' under the threat that Mr. Starr may decide to
prosecute her, her mother or her father if he is not satisfied.
It is now up to the Senate to restore sanity to this
process, exercise judgment, do justice and act in the interests
of the Nation. We will be judged both today and by history on
whether we resolve this case in a way that serves the good of
the country, not the political ends of any political party or
particular person.
I doubt that any Senator can impartially say that the case
against the President has been established beyond a reasonable
doubt. In this matter, my view is that is the appropriate
standard of proof. Here the Senate is being asked to override
the electoral judgment of the American people with respect to
the person they elected to serve them as the President of the
United States. In this matter the charges have not been
established beyond a reasonable doubt in a criminal case.
The inferences the House managers would draw from the facts
are not compelled by the evidence. Indeed, the House managers
fail to take into account Ms. Lewinsky's admitted interest in
keeping her relationship with President Clinton from the public
and out of the Jones case. They ignore the role of Linda Tripp
in Ms. Lewinsky's job search and the fact that it was Ms. Tripp
who suggested that Ms. Lewinsky involve Vernon Jordan. In light
of these and other fundamental flaws in the House managers'
case, I doubt whether many can vote that the articles have been
established by clear and convincing evidence.
I know that Republican Senators as well as Democratic
Senators have told me that they do not believe there is any
realistic possibility that the Senate will convict the
President and remove him from office. I agree. Having heard the
arguments from both sides and having considered the evidence, I
do not believe that there is any possibility that the Senate
will convict the President on the articles of impeachment and
remove him from office. That being so, I believe that the
interests of the Nation are best served by ending this matter
now, at the earliest opportunity.
As a consequence of the House's action, the impeachment
process is continuing to preoccupy the Congress into this year.
This unfinished business of constitutional dimension will
necessarily displace the other important business facing the
country until it is resolved. I believe this matter should be
concluded and we should turn our attention to legislative
matters.
History has judged harshly the radical Republicans who
pursued impeachment against President Andrew Johnson. I believe
that history will likewise render a harsh judgment against
those who have fomented this impeachment of William Jefferson
Clinton on the charges brought forward by the House of
Representatives. I do not believe those charges have been or
can be proven. I do not believe that the House managers have
justified the Senate overriding the 1996 presidential election
and ordering the duly elected President of the United States
removed from office.
When the Chief Justice, as Presiding Officer, sustained
objection to the House managers' mischaracterization of the
Senate in this matter, it highlighted the House managers'
misconceptions of the trial. 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. As the Chief Justice
properly observed: ``The Senate is not simply a jury; it is a
court in this case.''
Our job is to do justice in this matter and to protect the
Constitution. In that process, I believe we must serve the
interests of the Nation and fulfill our responsibilities to the
American people. I believe that this impeachment trial should
have been concluded now and that the articles of impeachment
should be dismissed.
Wednesday, February 3, 1999
[From the Congressional Record]
IMPEACHMENT AND THE CONSTITUTION
Mr. DORGAN. Mr. Chief Justice, I want to call the attention
of my colleagues to a piece that was written by our
distinguished Senator from West Virginia, our colleague,
Senator Byrd, that appeared in today's Washington Post entitled
``Don't Tinker With Impeachment.''
The reason I want to do that is there are discussions
occurring now, according to some of my colleagues and accounts
in the newspaper and on television, about trying to create a
mechanism to require a vote in the Senate during the
impeachment trial on the findings of fact prior to a vote on
the articles of impeachment themselves.
I was just looking at the Constitution in our Senate
manual, and, of course, article I in the Constitution
establishes the basis for impeachment, and it is simple, direct
and provides nothing of the sort that would lead Senators to
believe that they can bifurcate the vote in the Senate in an
impeachment trial first to findings of fact and have a majority
vote on findings of fact and then to move toward a vote on the
two articles of impeachment that are currently in front of the
Senate.
But I think the article written by our colleague, Senator
Byrd, provides the best description of the difficulty with
these findings of fact. Let me read just a few comments, and I
will ask unanimous consent to have the article printed in the
Record at the conclusion of my remarks.
The article, in part, by Senator Byrd says:
The notion of trumping the articles of impeachment with
even a ``broad'' findings of fact flies in the face of what the
Framers of the Constitution intended. They deliberately set the
bar high when it came to the vote on articles of impeachment,
first by requiring a supermajority of two-thirds of the Senate
to convict, and second, by fusing the penalty--[that is]
removal from office [being the penalty]--into the question of
guilt.
In voting on articles of impeachment [he goes on to say]
senators must answer not one but two questions: Is the
president guilty or not guilty of committing high crimes and
misdemeanors, and, if he is guilty, do his actions warrant
removal from office?
Continuing to quote from Senator Byrd's article:
This was not a casual coupling on the part of the Framers.
Their intent was to force senators to set aside their own
passions and prejudices and focus instead on the best interests
of the nation. To lift this burden from the shoulders of
senators by offering them a way to convict the president
without having to accept responsibility for removing him from
office would, in effect, bastardize the impeachment process.
Moreover [he says] the aftershocks would be felt long after
this impeachment has faded into history. No longer would
senators be confined to the articles of impeachment formulated
by the House of Representatives. No longer would senators need
a two-thirds majority vote to pronounce a president guilty.
From this time forward, they could cite the precedent set by
the Senate in the 106th Congress as giving them carte blanche
to write, and approve by a simple majority, ersatz articles of
impeachment cloaked as ``findings of fact.''
Senator Byrd, as always, finds the bull's-eye in this
debate. This is not some ordinary debate; this is a debate
about constitutional requirements and responsibilities and what
the provisions of the Constitution mean with respect to
impeachment.
The impeachment article provisions of the Constitution
require, when impeachment articles are voted by the U.S. House
of Representatives and sent to the Senate, that a trial must
commence, and the vote on the articles of impeachment would be
conducted by the Senate; and two-thirds of the Senate would
have to vote guilty on those articles of impeachment in order
to remove a President from office.
But it doesn't bifurcate the vote, doesn't call for extra
procedures, doesn't call for findings of fact, doesn't allow
some Senators to say, ``Yes, that's what the Constitution says
but we're going to create a new, or pretend there's a new,
provision in the Constitution without having the difficulty of
debating Madison and Mason and Hamilton and Franklin over our
proposal. We'll just pretend it's in the Constitution. And
we'll have separate votes on findings of fact. And in fact,
doing that, we can have our own little vote and create our own
little result with only 51 Members of the Senate voting in
favor of our resolution.''
That is a terrible idea and, in my judgment, stands this
Constitution, and the article of impeachment provisions in this
Constitution, on its head. But Senator Byrd says it much better
than I do. I will, as I indicated, include his article at the
conclusion of my remarks.
This Constitution, written in a room in Philadelphia over
200 years ago, is quite a remarkable document. It established
the separation of powers. It established the framework for a
new kind of Government that has worked remarkably well. If
those who watch these proceedings and become interested in the
Constitution would go to that room in Philadelphia, they would
see that that room still exists. It is called the Assembly Room
in Constitution Hall.
That room, which is smaller than the Senate Chamber, has a
chair in the front of the room where George Washington sat as
he presided over that Chamber. The same chair sits there today.
And you will see where Mason sat, Madison, Franklin, and others
who wrote this Constitution. They wrote it on a hot
Philadelphia summer with the curtains drawn to keep the heat
out of that room, and they created this remarkable document
that is printed in the Senate Manual. And that is the document
by which we in the Senate are now conducting an impeachment
trial.
I come to the floor today only to say that I think there is
great danger in believing there are things written in this
Constitution that don't exist in the Constitution. There is
danger, in my judgment, in suggesting ways or mechanisms by
which some can vote and create majority votes on some
extraordinary findings of fact that are not provided for in
this Constitution.
In this impeachment trial, there is one of two results, and
that is a vote on the two articles of impeachment that have
been sent to the U.S. Senate by the House of Representatives.
That vote will be a vote cast by each and every Member of this
Senate, and the vote will be either a vote to convict or a vote
to acquit--guilty or not guilty on the two articles of
impeachment. And my hope is that when the Senate reconvenes in
the impeachment trial, all Senators will have read this rather
remarkable article by the preeminent constitutional scholar in
this Chamber and the historian of this U.S. Senate, the
esteemed Senator Byrd.
I ask unanimous consent that the article be printed in the
Record.
There being no objection, the article was ordered to be
printed in the Record as follows:
[From the Washington Post, Feb. 3, 1999]
Don't Tinker With Impeachment
(By Robert C. Byrd)
While the lawyers are busy deposing witnesses in the Senate
impeachment trial of the president, a number of senators are continuing
to work quietly behind the scenes to chart a course that will end the
trial with a minimum of political carnage. One route currently being
investigated is a so-called ``findings of fact,'' an extravagant
novelty by which a simple majority of the Senate could condemn the
president's behavior within the framework of the impeachment process
without being forced to remove him from office.
This convict-but-don't-evict strategy appeals to some senators who
have no appetite for prolonging a trial whose outcome is all but
certain. At the same time, they are squeamish about the likelihood of
an all-but-inevitable acquittal without having some vehicle to first
register their condemnation of the president's actions. No doubt their
motives are sincere, and I applaud their ingenuity, but this findings-
of-fact proposal is not the answer. While the Senate sits in the
impeachment trial, it is not in legislative session. The insertion of
such a legislative mutant into the impeachment proceedings would
subject the process to some very experimental genetic engineering.
The notion of trumping the articles of impeachment with even a
``broad'' findings of fact flies in the face of what the Framers of the
Constitution intended. They deliberately set the bar high when it came
to the vote on articles of impeachment, first by requiring a
supermajority of two-thirds of the Senate to convict, and second, by
fusing the penalty--removal from office--into the question of guilt.
In voting on articles of impeachment, senators must answer not one
but two questions: Is the president guilty or not guilty of committing
high crimes and misdemeanors, and, if he is guilty, do his actions
warrant removal from office?
This was not a casual coupling on the part of the Framers. Their
intent was to force senators to set aside their own passions and
prejudices and focus instead on the best interests of the nation. To
lift this burden from the shoulders of senators by offering them a way
to convict the president without having to accept responsibility for
removing him from office would, in effect, bastardize the impeachment
process.
Moreover, the aftershocks would be felt long after this impeachment
has faded into history. No longer would senators be confined to the
articles of impeachment formulated by the House of Representatives. No
longer would senators need a two-thirds majority vote to pronounce a
president guilty. From this time forward, they could cite the precedent
set by the Senate in the 106th Congress as giving them carte blanche to
write, and approve by a simple majority, ersatz articles of impeachment
cloaked as ``findings of fact.''
And why stop at findings of fact? If the Senate can ignore the
intent of the Framers to combine a guilty verdict with removal from
office in an impeachment trial, maybe senators can find a way around
the constitutional prohibition against bills of attainder, or
legislative punishments.
The Senate impeachment trial takes place in a quasi-judicial
setting, and findings of fact would move the Senate headlong into an
area reserved for the judicial system, where the Senate, under the
separation of powers principle, dares not go.
Findings of fact would become part of a quasi-judicial record that
could not subsequently be amended or overturned. Could such a record of
findings of fact be later used by an independent counsel before a
federal grand jury in an effort to secure an indictment? If this or any
president were to be indicted, could such findings be introduced as
evidence in a subsequent trial in an effort to sway a jury and bring
about a conviction? Who knows what monsters this rogue gene might spawn
in future days?
The impeachment process, as messy and uncomfortable as it may be,
is working as designed. This is neither the time nor the place for
constitutional improvisation. No matter how sincere the motivation, our
nation and our Constitution will not be well served by this sort of
seat-of-the-pants tinkering.
A post-trial censure resolution that does not cross the line into
legislative punishment is something else. It can and should be
considered by the Senate after the court of impeachment has adjourned
sine die. Censure is not meaningless, it will not subvert the
Constitution, and it will be indelibly seared into the ineffaceable
record of history for all future generations to see and to ponder. For
those who fear that it can be expunged from the record, be assured that
it can never be erased from the history books. Like the mark that was
set upon Cain, it will follow even beyond the grave.
Mr. DORGAN. I yield the floor.
------
Thursday, February 4, 1999
[From the Congressional Record]
The Senate met at 1:03 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Gracious God, these days here in the Senate are filled with
crucial issues, differences on solutions, and eventually a
vital vote in the impeachment trial. We begin this day's
session with the question You asked King Solomon, ``Ask! What
shall I give You?'' We empathize with Solomon's response. He
asked for an ``understanding heart.'' We are moved by the more
precise translation of the Hebrew words for ``understanding
heart,'' meaning ``a hearing heart.''
Solomon wanted to hear a word from You, Lord, for the
perplexities he faced. He longed for the gift of wisdom so he
could have answers and direction for his people. We are moved
by Your response, ``See, I have given you a wise and listening
heart.''
I pray for nothing less as Your answer for the women and
men of this Senate. Help them to listen to Your guidance and
grant them wisdom for their decisions. All through our history
as a Nation, You have made good men and women great when they
humbled themselves, confessed their need for Your wisdom, and
listened intently to You. Speak Lord; we need to hear Your
voice. We are listening. Amen.
The CHIEF JUSTICE. The Senators will be seated. The
Sergeant at Arms will make the proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice.
order of procedure
Mr. LOTT. Mr. Chief Justice, if I could take just a moment
to outline how the proceedings will go this afternoon, I think
that will answer any questions that Senators may have. We will,
of course, continue with the consideration of articles of
impeachment. I am not aware of any objections made during the
depositions which require motions to resolve. Therefore, I
believe the House managers are prepared to go forward with a
motion that has three parts. The first would allow for the
introduction of the depositions into evidence. The second would
call Monica Lewinsky as a witness. And the third part would
allow for a presentation period by the parties for not to
extend beyond 6 hours. This motion would be debated by the
House managers and the White House counsel for not to exceed 2
hours.
In addition, it is my understanding that Senator Daschle
intends to offer a motion that provides for going directly to
the articles of impeachment for a vote.
Mr. DASCHLE. Mr. Chief Justice, will the majority leader
yield?
Mr. LOTT. I am glad to yield to the minority leader,
Senator Daschle.
Mr. DASCHLE. The motion would allow for closing arguments,
final deliberations, and then the motions on the two articles.
Mr. LOTT. Having said that, Mr. Chief Justice, in order for
the managers to prepare debate for the motions, I ask unanimous
consent that the House managers and the White House counsel be
allowed to make reference to oral depositions during this
debate on pending motions.
The CHIEF JUSTICE. Is there any objection? In the absence
of objection, it is so ordered.
Mr. LOTT. Consequently, four votes, then, will occur in the
4 p.m. timeframe today with respect to these four motions.
We will take at least one break--maybe two--between now and
then, and that will determine exactly when that series of votes
occur--once we begin the process of offering and debating the
motions. We will make a determination as to exactly when those
provisions would occur.
In addition, if the motion for additional presentation time
is agreed to by the Senate, it is my intention to adjourn the
trial after today's deliberations over until Saturday for the
parties to make their preparations, then to present their
presentations of evidence on Saturday, and the trial would then
resume on Monday at 12 noon for the closing arguments of the
parties.
Again, I remind all of my colleagues to please remain
standing at their desks when the Chief Justice enters the
Chamber and leaves the Chamber.
I thank my colleagues for their attention. I believe we are
ready to proceed, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
McCollum.
motion for admission of evidence, appearance of witnesses, and
presentation of evidence
Mr. Manager McCOLLUM. Mr. Chief Justice, I have a motion to
deliver to the Senate.
The CHIEF JUSTICE. The clerk will read the motion:
The legislative clerk read as follows:
motion of the united states house of representatives for the admission
of evidence, the appearance of witnesses, and the presentation of
evidence
Now comes the United States House of Representatives, by
and through its duly authorized Managers, and respectfully
submits to the United States Senate its motion for the
admission of evidence, the appearance of witnesses, and the
presentation of evidence in connection with the Impeachment
Trial of William Jefferson Clinton, President of the United
States.
The House moves that the transcriptions and videotapes of
the oral depositions taken pursuant to S. Res. 30, 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, be admitted into evidence.
The House further moves that the Senate authorize and issue
a subpoena for the appearance of Monica S. Lewinsky before the
Senate for a period of time not to exceed eight hours, and in
connection with the examination of that witness, the House
requests that either party be able to examine the witness as if
that witness were declared adverse, that counsel for the
President and counsel for the House Managers be able to
participate in the examination of that witness, and that the
House be entitled to reserve a portion of its examination time
to reexamine the witness following any examination by the
President.
The House further moves that the parties be permitted to
present before the Senate, for a period of time not to exceed a
total of six hours, equally divided, all or portions of the
parts of the videotapes of the oral depositions of Monica S.
Lewinsky, Vernon E. Jordan, Jr., and Sidney Blumenthal admitted
into evidence, and that the House be entitled to reserve a
portion of its presentation time.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. I understand that the pending motion is
divisible, and as is my right, I ask that the motion be divided
in the following manner: The first paragraph be considered
division I; the second paragraph be considered division II; and
the final paragraph be considered division III.
The CHIEF JUSTICE. It will be divided in the manner
indicated by the majority leader.
Mr. LOTT. I thank the Chair.
Mr. DASCHLE. Mr. President, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The CHIEF JUSTICE. Is there any objection? In the absence
of objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I identified this as the first
paragraph to be considered division I. Actually, that should be
the second paragraph would be division I, the third paragraph
division II, and the fourth paragraph would be division III. I
want that clarification.
The CHIEF JUSTICE. That will be the order.
Mr. LOTT. Also, so that both sides will understand, the
motion--there is one motion, but we have divided it into three
parts so there will only be 2 hours equally divided, one on
each side; not 2 hours equally divided on each one of the three
divisions. We had one clarification. I believe we have cleared
this up. I believe now we are ready to hear from the managers,
Mr. Chief Justice.
The CHIEF JUSTICE. Very well. The Chair recognizes Mr.
Manager McCollum.
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
As the first one up here today, I have to fiddle with the
microphone, I guess; it is testing. I apologize.
Mr. Chief Justice and Members of the Senate, what we have
presented to you today is a three-part motion, as Mr. Lott has
described it, and as you have heard read to you. We would like
very much, as we always have, to have all the witnesses we want
presented here live, as we would normally have in a trial, as
the House has always believed that it should have.
We came before you a few days ago recognizing reality and
went forward with your procedures to request not 5, not 6, not
12, but 3 witnesses be deposed so that we might be able to, in
the discovery process you have allowed us, gain the depositions
of those three witnesses. Today we are before you with motions,
first, to enter those depositions and the video recordings of
those depositions into evidence formally for your consideration
because they have now been accomplished; secondly, to request
that you provide us with the opportunity to examine Monica
Lewinsky live here as a witness on the floor of the Senate, and
for you to allow us to present the other two depositions to you
in some format; and, if you do not allow us the permission to
have Ms. Lewinsky live here to examine as a witness, to allow
us to present any or all portions of the depositions of all
three of them.
Now, I think that it is eminently fair that we be allowed
to present at least one witness live to you, the central
witness in the cast of this entire proceeding, and that is
Monica Lewinsky. I am not here to argue all of that. My
principal discussion with you is going to be on the part
dealing with just admitting these into evidence, and then my
colleagues, Mr. Bryant, Mr. Hutchinson, and Mr. Rogan are going
to present some complementary discussion about the entire
motion as we go through this.
But in the context of all of this I think we have to
recognize a couple of things. One is that live witnesses are
preferable whether you have depositions or not. These were
discovery depositions. We would have liked to have asked for
all of them to be live. We were recognizing reality by coming
down to one today, and the reasons are fairly straightforward.
Some of you have had the privilege, and I am sure you have
availed yourself of the opportunity, to look at the videotapes
of these depositions, and you see that they are, indeed, what
most depositions are. They are discovery. They have long pauses
in them. They are not at all like it would be in a trial
itself; you don't have the opportunity to fully see or explore
with the witness the demeanor, the temperament, the
spontaneity, all of those things that you normally get with an
exchange. You have the camera simply focused on the witness.
You don't get to have the interaction you get in a courtroom.
Remember, again, that we are dealing here first with your
determining whether or not the President committed the crimes
of perjury and obstruction of justice and then the question of
whether or not he should be removed from office. So I believe
and we believe as House managers that you should at least let
us have Monica Lewinsky here live for both of those reasons.
I also want to make comments specifically about just
admitting these into evidence. There are two obvious reasons
why, beyond the question of whether a witness should appear
live or whether we should use portions of them in whatever
fashion to present to you, they certainly should be part of the
record. It seems self-evident. It is part of what you gave us
as the procedure to do, and it would seem to me that it should
be a mere formality for me to ask, but I cannot assume
anything--we certainly do not--that we let these depositions
into evidence, and there are two reasons why.
One is the historical basis for this. There has to be a
record, not only for you but for the public and for history, of
the entire proceeding. There is evidence in these depositions
that needs to be a part of the official record, and that
evidence is not just the cold transcript, but it is also the
videotape with all of the limited, albeit not satisfactory,
portion of it that you can see and observe. Especially if you
were to conclude we weren't going to have any live witness here
or were not going to allow us to present these depositions, you
certainly should allow the depositions to be part of the record
and the videotape part of it. It is evidence. It is to be
examined. It seems self-evident.
But the second point is, as you are going to hear more from
my colleagues in just a moment, there is new evidence in these
depositions. There is new factual record information that needs
to be here for you to decide the guilt or innocence question of
the perjury and obstruction of justice charge.
One illustration I would give you--and I am sure my
colleagues will give you plenty more--one of them deals with
the gift question. We have talked about it a lot out here. If
you recall with regard to the question of the gifts, the issue
is did the President obstruct justice? Did he decide in the
Jones case, in the Jones Court, as a part of his course of
conduct of trying to keep from the Court the nature of his
relationship with Monica Lewinsky, to keep the gifts hidden?
There is new information in the deposition relative to what
happened on the day those gifts were supposedly exchanged
between Monica Lewinsky and Betty Currie, about the telephone
call. Again, I am not going into the details of that. I will
leave that for my colleagues who took the depositions. They can
tell you about it. The point is you could enumerate--and they
will--new evidence. There is significant relevant new evidence
from the Vernon Jordan deposition and from the Sidney
Blumenthal deposition. So just on the record alone, just to put
the depositions into the record, there can be nothing complete
about this trial if we don't at least do that. At least do
that.
And so with that in mind, having said that and urging you
to do that, I will yield to Mr. Manager Bryant at this point in
time.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Bryant.
Mr. Manager BRYANT. Mr. Chief Justice, distinguished
colleagues and Senators, I encourage each of you to consider
calling Monica Lewinsky as the one live witness in this
proceeding. Ms. Lewinsky continues to be, in her own way, an
impressive witness. As I spoke to you earlier, she does have a
story to tell. After all, no one knows more about the majority
of the allegations against the President other than, of course,
the President himself.
At her deposition, she appeared to be a different Monica
Lewinsky than the Monica Lewinsky whom I had met a week
earlier. Unlike before, she was not open to discussion or fully
responsive to fair inquiry. She didn't volunteer her story. She
didn't tell her story. Rather, she was very guarded in each
response and almost protective. Her words were carefully chosen
and relatively few. At times, the concepts that she discussed
had the familiar ring of another key witness to these
proceedings, such as ``it wasn't a lie'' or ``wasn't false,''
it was ``misleading or incomplete.'' ``Truth is what one
believes it is and may be different for different people.''
``Truth depends on the circumstances.''
As we progressed through her deposition Monday, I felt more
and more like one of the characters in the classic movie
``Witness For The Prosecution.'' I was Charles Laughton. Ms.
Lewinsky was Marlene Dietrich. And the President was Tyrone
Power. If you are familiar with this movie, you will
understand, and if you aren't, you should see the movie.
However, there was and there still remains truth in her
testimony. Sometimes, though, just like the President, and now
Ms. Lewinsky, it is the literal truth only, the most restricted
and stretched definition one could reach. And we all know that
the law frowns upon manipulations such as this to avoid telling
the complete truth. Her testimony is clearly tinted, some might
even say tainted, by a mixture of her continued admiration for
the President, her desire to protect him, and her own personal
views of right and wrong.
And she was well represented in the deposition by some of
Washington's finest defense attorneys who had thoroughly
prepared her for all questions, as they should have, as well as
being present throughout the deposition to assist her. In fact,
the Senator in charge of this particular deposition had to warn
these counsel not to coach and not to whisper to her while she
was attempting to answer the questions.
If you have seen this deposition, you have witnessed an
effective effort by a loyal supporter of the President to
provide the very minimum of truth in order to be consistent
with her own grand jury testimony, which is legally necessary
for her to fulfill the terms of her immunity agreement.
On the perjury article of impeachment, she reaffirmed the
specific facts which happened between her and the President on
more than one occasion, including November 15, 1995, their
first encounter, when the President's conduct fit squarely
within the four corners of the term ``sexual relationship'' as
defined in the Jones lawsuit, and this is in opposition to the
President's own sworn testimony of denial. But this is one of
the clearest examples of the President's guilt of this charge
of perjury. It is not about this twisted definition the
President assigned to the term ``sexual relations.'' Rather, it
is his word against her word as to whether this specific
conduct occurred. Even under his own reading of this
definition, he agrees that that specific conduct, if it
occurred, would make him guilty of sexual relations within that
definition. But he simply says I did not do that; she says you
did do that--a ``he said/she said'' case.
But this is why it is important for you to be able to see
Ms. Lewinsky in person. In the deposition you will observe her
as having to affirm her prior testimony. She had to affirm her
prior testimony because that was what was in the grand jury,
and because of this, she could not back away at all on her
testimony. She couldn't bend it here or there, she couldn't
shade it in the President's favor. So what you have is a
person, who you may well conclude is still wanting to help the
President, having to admit to testimony that would do damage to
the President, a very difficult situation for her. But, yet,
this same difficulty lends this portion of her testimony great
credibility.
With respect to the other article of impeachment on
obstruction of justice, her credibility is again bolstered by
her reluctance to do legal harm to this President. In the end,
though, she does admit that he called her early one morning in
December of 1997--actually it was 2 o'clock in the morning--and
told her that she was on the witness list. And he told her that
she might be able to file an affidavit to avoid testifying. And
he told her that she could always use the story that she was
bringing papers to him, or coming up to see Ms. Currie.
Now, we know that she did not carry papers to him on these
visits other than personal, private notes from her to him. And
Ms. Lewinsky indicated in the deposition that she didn't carry
him official papers, although she did pass along this cover
story--of carrying papers--to her attorney, Mr. Carter. She
testified also that she discussed the draft affidavit with Mr.
Jordan, changes were made, she offered the President the
opportunity to review it, he declined, and, according to Ms.
Lewinsky, he never suggested any way that she could file a
truthful affidavit, sufficient to skirt--avoid having to
testify. This, in spite of his answer to this Senate where he
told you that he might have had a way for her to file a
truthful affidavit and still avoid testifying in the Jones
case.
Yes, you can parse the words and you can use legal
gymnastics, but you cannot get around the filing of a false
affidavit in an effort to avoid appearing in the Jones case and
possibly providing damaging testimony against the President.
Ms. Lewinsky confirmed positively that Ms. Currie initiated
a telephone call to her on December 28, 1997, stating words--
and this is about the gifts--``I understand you have something
for me.'' Then Ms. Currie drove over to Ms. Lewinsky's home and
picked up the box of gifts.
Now, remember, this occurred on the heels of Ms. Lewinsky's
conversation with the President that very morning about what
she might do with the gifts. The only explanation is that the
President is directly involved, himself, in the obstruction of
justice by telling Ms. Currie, who otherwise knew nothing about
this earlier conversation, to retrieve these items from Ms.
Lewinsky. Ms. Lewinsky said there was no doubt that Ms. Currie
initiated the call to retrieve the gifts.
Also recall that the President's testimony from his side
was that this conversation occurred earlier in the day with Ms.
Lewinsky but that he had told her she would have to turn over
whatever gifts that she had. Now, with that advice from the
President, it would be totally illogical for Ms. Lewinsky to
have then called Ms. Currie that same day and ask her to come
pick up and hold these gifts. By calling Ms. Currie, Ms.
Lewinsky would have been going against the direct instruction
of the President to surrender any and all gifts. The facts, the
logic, and common sense tell us all that the President's
version is not true and that he obstructed justice here.
Ms. Lewinsky also testified at the deposition about the job
at Revlon and obtaining a job offer within 2 days of signing
the affidavit. She also denied that she was a stalker, as the
President had described her in a conversation with Mr.
Blumenthal in January of 1998. She also denied that she
threatened the President or attempted to threaten the President
into having an affair. She denied that he rebuffed her on the
occasion of their first encounter on November 15, 1995. Again,
all false statements that the President made to Mr. Blumenthal
about her, with knowledge that Mr. Blumenthal would be
testifying in a grand jury, thereby obstructing justice.
Now, the former lawyers and judges among us are familiar
with what is called the best evidence rule. Stated simply, the
court always prefers the best available evidence to be used.
In-person testimony is better than a video deposition, which
itself is better than the written transcript of a deposition.
When all three forms of testimony are available, as they are in
this situation, the court will most often require the witness
to testify in person over the video deposition or over the
written transcript of the deposition.
In closing, I know we all want to work within the Senate
rules and we all want to ensure that these proceedings are
concluded in a constitutional fashion by the end of next week.
It is with this in mind that we propose that Ms. Lewinsky be
called as a live witness, the only person called to testify in
person, and, further, that we use the two depositions, the
video depositions of Mr. Jordan and Mr. Blumenthal, in lieu of
their personal attendance. In the event the Senate does not
call Ms. Lewinsky, we also ask that we be permitted to use all
or portions of her deposition, just as we would the other two
depositions.
And finally, several Senators have sent out a letter to the
President inviting him to come here and to provide his
testimony, if he so chooses. In the event he should accept, Ms.
Lewinsky, likewise, should be afforded the same opportunity.
They continue to be the two most important and essential
witnesses for you and the American people to hear in order to
finally--finally--resolve this matter.
Permit us all to return to our districts, and you to your
States, and tell our constituents that we considered the full
and complete case, including live witnesses and, in your case,
made your vote accordingly.
At this time, I yield to my colleague from Arkansas, Mr.
Hutchinson.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
Ladies and gentlemen of the Senate, in an effort to be
helpful, I have asked the pages to distribute to you some
exhibits that I will be referring to as I consider the
testimony that we are presenting to you.
There are two aspects to an impeachment trial. There is the
truth-seeking responsibility, which is the trial, in my
judgment, and then there is the conclusion, the judgment, the
verdict, the conviction or the acquittal. If you look at those
two phases of a trial, the latter is totally your
responsibility. We leave that completely in your judgment.
But the first responsibility of the factfinding of the
truth-seeking endeavor, I feel some responsibility in that
regard. Hopefully, our presentation is helpful in seeking the
truth. I know, as Mr. Bryant mentioned, that we all want to
bring this matter to a conclusion. We want to see the end of
this story. We want to have a final chapter in this national
drama. I understand that and agree with that. But let's not,
because we are in a hurry to get to the judgment phase, let's
not let that detract, let's not let that shortchange, nor
diminish the importance of the presentation and consideration
of the facts, and that is what I think is very important as we
consider this motion that is before us.
It is my responsibility to talk about Mr. Vernon Jordan--
and the need for your consideration of his testimony--whom we
recently deposed. I deposed Mr. Vernon Jordan, Jr., and I
recommend that that be received in evidence as part of the
Senate record.
I took this deposition under the able guidance of Senator
Thompson and Senator Dodd. The questioning took place over
almost 3 hours with numerous and extraneous objections on
behalf of the President's lawyers, most of which were resolved.
I believe that the testimony of Mr. Jordan goes to the key
element in the obstruction of justice article, and even though
it is just one element that we are dealing with, it is a very
important element because it goes to the connection between the
job search, the benefit provided to a witness, and the
solicited false testimony from that witness.
I believe the testimony of Mr. Jordan is dramatic in that
it shows the control and direction of the President of the
United States in the effort to obstruct justice. I believe the
testimony of Mr. Jordan provides new evidence supporting the
charges of obstruction and verifying the credibility of Ms.
Lewinsky.
The testimony, in addition, is the most clear discussion of
the facts reflecting Mr. Jordan's actions in behalf of the
President and the President's direction and control of the
activities of Mr. Jordan, and therefore they support the
allegations under the articles of impeachment. Let me make the
case for you.
If you have the President of the United States personally
directing the effort to obtain a job for Ms. Lewinsky, which is
a benefit to a witness, and simultaneously Ms. Lewinsky is
under subpoena as a witness in the case, and thirdly, in
addition, the President is suggesting means to that witness to
avoid truthful testimony, as evidenced by the December 17
conversation and the suggestion of the affidavit, the
conclusion is that you have a corrupt attempt to impede the
administration of justice and the seeking of truth and the
facts in the civil rights case.
Now, let me go to the testimony of Mr. Jordan. Has that
been distributed now? Good. Let me give a caveat here,
particularly to my colleagues, the counselors for the
President, that this summary of the portions of the testimony
of Mr. Jordan are based upon my handwritten notes. So, please
don't blow it up in a chart if there is some discrepancy. I
believe this is, in good faith, accurate, but I did not have a
copy of the transcript. I was required to go to the Senate
Chamber and actually take notes in order to prepare this.
There are a number of areas that I think are relevant and
new information and are very important for your consideration.
Let me just touch upon five areas.
The first one is the job search and Mr. Jordan being an
agent of the President. In the deposition, Mr. Jordan testified
that:
There is no question but that through Betty Currie I was
acting on behalf of the President to get Ms. Lewinsky a job.
He goes on to say:
I interpreted [the request, referring from Betty Currie] it
as a request from the President.
Then he testified:
There was no question that he asked me to help [referring
to the President] and that he asked others to help. I think
that is clear from everybody's grand jury testimony.
So the question is as to whether the information, the
request, came from Betty Currie or whether it came directly
from the President, there is no question but that Mr. Jordan
was acting at the request of the President of the United States
and no one else. In fact, he goes on to say:
The fact is I was running the job search, not Ms. Lewinsky,
and therefore, the companies that she brought or listed were
not of interest to me. I knew where I would need to call.
This is very important. There has been a reference, ``Well,
he was simply getting a job referral, making a referral for
routine employment interview by this person, Ms. Lewinsky.''
But, in fact, it is clear that Mr. Jordan knew whom he wanted
to contact. He was running the job search as he testified.
Then he testified:
Question: You're acting in behalf of the President when you
are trying to get Ms. Lewinsky a job and you were in control of
the job search?
The answer is:
Yes.
So that is one area, and it is important to establish that
he was an agent for the President.
Secondly, there was a witness list that came out December
5. The President knew about it, at the latest, on December 6,
and yet he had two meetings with Mr. Jordan, on December 7 and
December 11. In neither one of those meetings was it disclosed
to Mr. Jordan that Monica Lewinsky was a witness. I am
referring to the second page of the exhibits I have handed you
in which Mr. Jordan testified to that effect:
Question: And on either of these conversations that I've
referenced, that you had with the President after the witness
list came out, your conversation on 12/7 and your conversation
sometime after the 11th, did the President tell you that Ms.
Monica Lewinsky was on the witness list in the Jones case?
Answer: He did not.
Question: Would you have expected the President to tell you
if he had any reason to believe that Ms. Lewinsky would be
called as a witness in the Paula Jones case?
Answer: That would have been helpful.
Question: So it would have been helpful and it was
something you would have expected?
Answer: Yes.
Even though it would have been helpful, he would have
expected the President to tell him the information, it was not
disclosed to him. The materiality, the relevance, of that is
that you have the President controlling a job search, knowing
this is a witness in which we are trying to provide a benefit
for, and yet the person he is directing to get the job for Ms.
Lewinsky, he fails to tell Mr. Jordan the key fact that she is,
in fact, a witness, an adverse witness in that case. I think
that is an important area of his testimony.
The third area, keeping the President informed--very clear
testimony about the development of the job search, the Lewinsky
affidavit that was being prepared, and the fact that it was
signed. On the third page I have provided to you, Mr. Jordan's
testimony:
I was keeping him [the President] informed about what was
going on and so I told him.
He goes on further to say:
He [referring to the President] was obviously interested in
it.
Then the question, I believe, was:
What did you tell the President when the affidavit was
signed?
And his answer:
Mr. President, she signed the affidavit, she signed the
affidavit.
So was there any connection between the job benefit that
was provided and the affidavit that was signed in reference to
her testimony? Clearly, it was something the President not only
directed the job search, but he was clearly interested,
obviously concerned, receiving regular reports about the
affidavit.
Then the fourth area is the information at the Park Hyatt
that was developed. To lay the stage for this--and I will do
this very briefly--if you look at page 4, you see the previous
testimony of Mr. Jordan before the grand jury in March. At that
time, the question was asked of him:
Did you ever have breakfast or any meal, for that matter,
with Monica Lewinsky at the Park Hyatt?
His answer was:
No.
It was not equivocally, it was indubitably no.
And he was further asked, and he testified:
I've never had breakfast with Monica Lewinsky.
And then on page 5 he goes on, in the May 28 grand jury
testimony:
Did you at any time have any kind of a meal at the Park
Hyatt with Monica Lewinsky?
His answer was:
No.
So that sets the stage, because in Ms. Lewinsky's
testimony, as evidenced by page 6 of your exhibits, she
testified in August, after the last time Mr. Jordan testified,
very clearly about this meeting on December 31 at the Park
Hyatt with Mr. Jordan where they had breakfast. The discussion
was about Linda Tripp. Then the discussion went to the notes
from the President, and she said, ``No, [it was] notes from me
to the President.'' And Mr. Jordan told her, according to her
testimony, ``Go home and make sure they're not there.'' That is
Ms. Lewinsky's testimony.
It was important to ask Mr. Jordan about this. I assumed
that we, of course, would get simply a denial, sticking with
the previous grand jury testimony, that unequivocally, no, that
meeting never happened: we never had breakfast at the Hyatt.
On page 7, you will notice that Ms. Lewinsky, in her
testimony, specifically identified even what they had for
breakfast. And so the investigation required us to go out and
get the receipt at the Park Hyatt, which is page 8. And the
receipt showed that there was a charge on December 31 by Mr.
Jordan that included every item for breakfast, that
corroborated the testimony of Ms. Lewinsky as to her memory;
that is, the omelette they had for breakfast.
And so it is tightening here. The evidence is becoming more
clear, unequivocally, that this meeting occurred. And so we had
to ask this of Mr. Jordan. And this is page 9. And, of course,
I presented the Park Hyatt receipt, I presented the testimony
of Ms. Lewinsky, and his testimony, which is page 9:
It is clear, based on the evidence here, that I was at the
Park Hyatt on Dec 31st. So I do not deny, despite my testimony
before the grand jury, that on [December] 31 that I was there
with Ms. Lewinsky, but I did testify before the Grand Jury that
I did not remember having a breakfast with her on that date and
that was the truth.
But what amazed me was, as you go through the questions
with him, all of a sudden he remembered the breakfast but all
of a sudden he remembered the conversation in which he before
said it never happened at all. And his testimony was, when
asked about the notes:
I am certain that Ms. Lewinsky talked to me about [the]
notes.
And so I think there are a number of relevant points here.
First of all, you reflect back on the testimony of Ms. Lewinsky
in this same deposition in which she was asked the question,
getting Mr. Jordan's approval was basically the same as getting
the President's approval? Her answer: Yes.
And so that is how Ms. Lewinsky viewed this. And this is
what was told to her at this meeting at the Park Hyatt. It goes
to credibility, it goes to what happened, it goes to the
obstruction of justice. It is extraordinarily relevant. It is
new information. It is what was developed because this Senate
granted us the opportunity to take this further deposition of
Mr. Jordan and the other witnesses.
And there are other, you know--the fifth point is that the
testimony goes to the interconnection between the job help and
the testimony that was being solicited from Ms. Lewinsky.
So why is the presentation necessary? Some of you might
even think, ``Well, thank you very much for that explanation
you have given to us. Now we have all the facts. Let's go on
and vote.'' I do think there is some merit. First of all, this
is not all. There is much more there. I just have a moment to
develop a portion of Mr. Jordan's testimony that I believe is
helpful, but, secondly, it tells a story that has never been
told before.
I went and saw the videotape and I was underwhelmed by my
questioning, because it is just not the same. I thought we had
a dynamic exchange. But then I saw it on videotape and I am
nowhere to be found. You get to look at Mr. Jordan, a
distinguished gentleman. But it is still helpful not
withstanding the difficulty of a video presentation. I
respectfully request this body to develop the facts fully, to
hear the testimony of Mr. Jordan, to allow him to explain this
that tells the story, start to finish, on this one aspect of
obstruction of justice that is critical to your determination.
And so I ask your concurrence in the approval of the motion
that has been offered to you, and at this time I yield to
Manager Rogan.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, Members of the
Senate, yesterday, along with Mr. Manager Graham, I had the
privilege of conducting the deposition of Sidney Blumenthal,
assistant to the President. That deposition was presided over
by the senior Senator from Pennsylvania and the junior Senator
from North Carolina. On behalf of the House managers, and I am
also sure the White House counsel, we thank them for the able
job that they did.
This deposition must be played for Members of the U.S.
Senate, and if one Senator has failed to personally sit through
this deposition--and every deposition--that Senator is not
equipped to render a verdict on the impeachment trial of the
President of the United States.
I will address very briefly just a couple of the reasons
why I believe Mr. Blumenthal's deposition warrants being played
before this body. But to do it, it needs to be put in
perspective. Remember what the President of the United States
testified to on the day he was sworn in as a witness before the
grand jury. He said that in dealing with his aides, he knew
there was a potential that they could become witnesses before
the grand jury, and that is why he told them the truth. That is
the President's own word: the ``truth.'' Mr. Blumenthal's
deposition paints a totally different picture and gives a
terribly different interpretation of what the President was
doing in passing along false stories to his aides.
We have been treated to a number of euphemisms by the
distinguished White House counsel during their presentation as
to what the President was doing during his grand jury
testimony. They described his testimony as ``maddening.'' They
have described his testimony as ``misleading'' and
``unfortunate.'' But the one thing they have never described it
as is a lie.
Mr. Blumenthal gave a totally different take on that
because he testified under oath that, upon reflection, he
believes the President was not maddening to him, the President
lied to him, and he testified so for a very good reason.
Remember, Sidney Blumenthal testified three times before
the grand jury in 1998. He testified in February and twice in
June. But that testimony was in a vacuum because each time he
testified before the grand jury we were still in a national
state of, at least presumptively, believing that the President
had told the truth. The President had made an emphatic denial
as to the Monica Lewinsky story. There was no physical evidence
presented to the FBI lab at the time Mr. Blumenthal testified.
And Monica Lewinsky was not cooperating with the grand jury. So
we know that certain questions were not asked of him during his
grand jury testimony because of the status of the facts as we
thought they were. But Mr. Blumenthal shed some incredible new
light on the testimony that we received yesterday from him.
He said, first of all: After I was subpoenaed, but before I
testified before the grand jury, once in February and twice in
June--with the President knowing he was about to become a
witness before the grand jury, a criminal grand jury
investigation--the President never came to him and said, ``Mr.
Blumenthal, before you go and provide information in a criminal
grand jury investigation, I need to recant the false stories I
told you about my relationship with Monica Lewinsky.''
And he testified about those false stories. He corroborated
his own testimony from earlier proceedings. You will recall
from the record that the day the Monica Lewinsky story broke in
the national press Mr. Blumenthal was called to the Oval Office
by the President. The door was closed. They were alone. And
this is what the President told Sidney Blumenthal about the
revelations that were breaking that day on the national press
wire:
He said, ``Monica Lewinsky came at me and made a sexual
demand on me.''
The President said 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.
The President said 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 [colleagues], 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.
And the testimony goes on. You are all familiar with it at
this point.
The President of the United States allowed his aide to
appear three times before a Federal grand jury conducting a
criminal investigation, and never once did the President of the
United States inform that aide before providing that
information to the investigatory body--never once--asked or
told the aide that that was false information. Mr. Blumenthal's
testimony demonstrates that the President of the United States
used a White House aide as a conduit for false information
before the grand jury in a criminal investigation.
I just want to make one other brief point before I close
this presentation because I think it needs to be said. I am in
no position to lecture any of the distinguished Members of this
body on what the founders intended in drafting the
Constitution. I believe all of us in this room have an abiding
respect for that. But there are a couple of points that need to
be made. I believe there is a reason the founders drafted a
document that allows us the opportunity in every trial
proceeding in America to confront and cross-examine live
witnesses. It is because that gives the trier of fact the
opportunity to gauge the credibility and the demeanor of the
witnesses. We have discussed that at length during these
proceedings.
But one thing we haven't discussed and one thing that I
think is important--not from the House managers' perspective,
but from the perspective of history and the history that will
be written on the ultimate verdict in this case--and that is
the idea of open trials. There is a reason why the founders
looked askance on the concept of secret trials and closed
trials. There is a reason why in every courtroom across the
land trials are open. They are open. It is an open process. The
light of truth is allowed to shine in the courtroom and from
the courtroom because we don't trust the credibility of a
verdict if it is done in secret. What would be the verdict on
this proceeding if the judgment of this body is based upon
testimony and witnesses, on videotapes, locked in a room
somewhere, available only to the triers of fact without the
public being privy to what was made available?
Ladies and gentlemen of the Senate, I would urge you, not
for the sake of the managers and not for the sake of the
presentation of the case, but for the sake of this body and for
the verdict of history that will be written, to please allow
this to be a public trial in the real sense. If the witnesses
will not be brought here live before the Senate, please allow
the doors of the Senate to be open so that the testimony upon
which each of you must base your verdict will be made available
not only to all 100 Senators, but will be made available to
those who will make the ultimate judgment as to the
appropriateness of the verdict, the American people.
Mr. Chief Justice, I yield to Mr. Manager Graham.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Graham.
Mr. Manager GRAHAM. Mr. Chief Justice, how much time?
The CHIEF JUSTICE. Your colleagues have consumed 37
minutes.
Mr. Manager GRAHAM. Ladies and gentlemen of the Senate, I
do not have a whole lot to add, but I would like to recognize
this thought: That we have learned a great deal in these
depositions. Thank you for letting us have them. We didn't get
everything we wanted--and I think that is a fair statement--but
who does in life? But we do appreciate you giving us the
opportunity to explore the testimony of these witnesses because
I think it would be helpful in setting the historical record
straight.
Mr. Blumenthal, to his credit, said the President of the
United States lied to him. The President of the United States
did lie to him. The President of the United States, in his
grand jury testimony, denied ever lying to me. That should be
historically significant and should be legally significant. Mr.
Blumenthal, to his credit, said the President of the United
States tried to paint himself as a victim to Ms. Lewinsky. That
would be legally and historically relevant and it will mean a
lot in our arguments and it will be something you should
consider.
This has been a good exercise. Thank you very much for
letting us depose these witnesses.
I was not at the other two depositions, but I was at Mr.
Blumenthal's deposition, and I can assure you we know more now
about what the truth is than before we started this process. I
hope at the end of the day it is our desire to get to the truth
that guides us all. We are asking for one live witness, Ms.
Lewinsky.
Let me tell you, I know how difficult it is to want this to
go on given where everybody is at in the country. Trust me, I
want this to end as much as you do. However, there is a signal
we will send if we don't watch it. We will make the independent
counsel report the impeachment trial, and I am not so sure that
is what the statute was written for.
The key difference between the House and the Senate is that
the White House never disputed the facts over in the House.
They never disputed the facts. They called 15 witnesses to talk
about process and about the interpretations that you would want
to put on those facts. In their motion to the Senate,
everything is in dispute. It is a totally different ball game
here. That is why we need witnesses, ladies and gentlemen, to
clarify who said what, who is being honest, who is not, and
what really did happen in this sordid tale.
Ms. Lewinsky comes before us because the allegations arise
that the President of the United States, with an intern, had an
inappropriate workplace sexual relationship that was discovered
in a lawsuit where he was a defendant. This was not us or
anyone else trying to look into the President's private life
for political reasons or any other reason. It was a defendant
in a lawsuit asking to look at the behavior of that defendant
in the workplace, something that goes on every day in
courtrooms throughout the country.
And is it uncomfortable? Yes, it is uncomfortable. If you
have ever tried a sexual harassment case, an assault case, or a
rape case, it is very much uncomfortable to have to listen to
these things. But the reason that people are asked to do what
you are asked to do by the House managers is that the folks
that are involved represented themselves much better than
lawyers talking about what happened. And if you find it
uncomfortable listening to Ms. Lewinsky, think how juries feel,
think how the victims feel, think how somebody like Ms. Jones
must feel not to be able to tell the story of the person they
are suing.
That is a signal that is going to be sent here that will be
a devastating and bad signal. If we can't stomach it, if we
can't stomach listening to inappropriate sexual conduct, why do
we put that burden on anyone else?
Give us this witness. We will do it in a professional
manner. We will focus on the obstruction. We will try to do it
in a way not to demean the Senate. We will try to do it in a
way not to demean Ms. Lewinsky. We will try to do it in a way
to get to the truth. Please give us a chance to present our
case in a persuasive fashion, because unlike the House,
everything is in dispute here.
Thank you very much. I reserve the remainder of my time.
The CHIEF JUSTICE. The House managers reserve the remainder
of their time.
The Chair recognizes Counsel Craig.
Mr. Counsel CRAIG. Mr. Chief Justice, ladies and gentlemen
of the Senate, I have divided my presentation into three parts
that fortunately correspond to the three parts of the motion
that is before you today.
I would like, first, to argue against admitting videotape
evidence into the record of this trial. Second, I would like to
argue against calling live witnesses to this trial. And third,
I would like to argue against the proposed presentation of
videotape and deposition testimony for Saturday.
I sound rather negative. I don't mean to be negative. But
we don't find much to recommend the three proposals that the
House managers have brought before you today.
Let me begin by saying that we support the idea of
admitting written transcripts of deposition testimony of these
three witnesses into the record of this trial. But we believe
that it would be a terrible mistake and wholly redundant to put
the videotape testimony into that record as well, particularly
if that means releasing any of this videotaped material to the
public.
We can only call the Senate's attention to section 206 of
Senate Resolution 30, which instructs the Secretary of the
Senate ``to maintain the videotaped and transcribed records of
the deposition as confidential proceedings of the Senate.''
That was the intention of the Senate when you first passed
Resolution 30. If this decision as proposed today will result
in overruling that rule, if there is any risk or danger of a
wholesale, unconditional, and unlimited release of these
videotapes for the public through the national media, just as
was done by the House of Representatives when it released all
the Starr materials, we think it is a bad idea.
In retrospect, most people believe that it was a mistake
for the House to release those materials--and those materials
included videotaped grand jury testimony--and we believe it
would be a mistake for the Senate, at the request of the House
managers, to do the same thing with these videotaped materials
now. To release these videotapes generally to the public--which
will happen if they are put into the record--inevitably will
surely cause consternation among those members of the public,
particularly parents who do not choose to spend one more
moment, much less hours and even days, thinking about the
President's relationship with Monica Lewinsky and explaining it
again to the children. Placing these videotapes in the formal
record of this trial will be one step closer to releasing the
tapes to the public for immediate broadcast. If that release
occurs, it will produce an avalanche of unwelcome deposition
testimony into the public domain.
The videotaped testimony of Ms. Lewinsky, Mr. Jordan, and
Mr. Blumenthal will be forced, hour after hour, unbidden and
uninvited, into the living rooms and family rooms of the
Nation. Make no mistake about what would happen; we have seen
it before. We can expect to see the networks play these tapes,
wall-to-wall, nonstop, and without interruption, over the
airwaves. This would be a repeat of what happened when the case
first came to the House of Representatives. For the Senate to
decide to include the videotapes of this deposition testimony,
as opposed to the written transcripts in the formal record of
this trial, would have the same effect and could result in this
kind of release. The picture, voices, and words on these tapes
would flow directly and irreversibly into the life of the
Nation. In addition, these videotapes will, no doubt, be edited
and excerpted and cut and spliced, and the materials will not
only be overused, they will also be inevitably abused.
To take advantage of these witnesses, I submit to you, in
this way is wrong--whether in the context of the grand jury
proceeding where confidentiality is promised, or whether
testifying under subpoena in an impeachment trial in the
Senate. It is unfair to the witnesses, unfair to the public,
unfair to the Senate and, we submit, unfair to the President as
well.
We do not object to release of the written transcripts of
this testimony; we support that release. And we believe that
that satisfies any reasonable requirement of public access to
the information. The public's right to know and understand what
is happening in this impeachment trial would be respected. But
we should learn a lesson from America's experience in the House
of Representatives: More is not always better.
It is not wise or right for the House or the Senate to
perform the function of a mere conveyor belt simply and
automatically transmitting unfiltered evidence into the public
domain. It is not wise or right to suspend judgment and turn
over for public viewing the videotaped testimony of private
witnesses who are forced to appear and testify under
compulsion. It is simply wrong to release videotapes of such
testimony for cable news networks or for friends or foes to use
as they want. This, I submit, is profoundly unfair to the
witnesses.
One can only ask, who really benefits from this kind of
practice? Is it really in the public interest for the Senate to
issue and serve a subpoena on private individuals like Monica
Lewinsky, or Vernon Jordan, to summon these citizens before the
Senate to compel their testimony before video cameras and then
to take that videotaped testimony, without any consideration or
thought about the legitimate personal concerns or interests of
those witnesses, and release those videotapes of that testimony
for the national media? Is it really in Ms. Lewinsky's interest
to do this, or in the interest of her family or her future? Is
it fair to Mr. Jordan or to his family to subject him to this
kind of treatment? Is it really in the Senate's interest? Is it
in the interest of the Constitution, or the Presidency, or of
the American people to have a videotape of Monica Lewinsky
readily available for all the world to see and to hear?
What about those individuals who are, in fact, truly
innocent but who will surely suffer if these videotapes are
released to the public for permanent residence in the public
domain? What about the members of the President's immediate
family? How can the Senate contemplate releasing Ms. Lewinsky's
videotaped testimony, discussing her relationship with the
President, without giving at least some thought to the impact
that this might have on the members of that family? You can be
sure that the release of this testimony and of this videotape
will only add to their agony, embarrassment, and humiliation.
I only hope that those who purport to be concerned about
the moral damage that can be attributed to the President's
conduct and example are equally mindful of the hurt that will
be inflicted on innocent people by the mere broadcasting of
these videotapes and of their existence in perpetuity in the
public record and the public domain.
We think it is perfectly appropriate and, no doubt, helpful
to many Senators and staffers to be able to watch the
deposition testimony of these three witnesses on videotape as
part of the Senate's trial proceeding, but that function has
now been satisfied. There is no need for these tapes to be
broadcast to the public, as the public knows better than
anyone. It is for that precise reason, one suspects, that
three-quarters of those polled, according to a survey reported
in yesterday's New York Times, oppose releasing the videotaped
testimony of Ms. Lewinsky and Mr. Jordan and Mr. Blumenthal to
the public.
I urge you to not vote to place these materials into the
record of this trial without giving careful consideration to
these interests and to these concerns. These are not just the
interests and concerns of the President and the members of his
family. They are not just the interests and concerns of these
three witnesses and the members of their families. I think they
are also the interests and concerns of the American people as
well.
The bottom line, ladies and gentlemen of the Senate, is
simple: You do not need these videotapes released to do your
constitutional duty, and the people we all work for do not want
these videotapes released to them. Please draw the line.
As for the issue of witnesses, we believe that there is no
useful purpose served by calling live witnesses to testify
before the Senate in this trial. Live witnesses will not
advance the factual record. We have known the facts for many
months. Nor will live witnesses give us new insight into the
witnesses themselves. Sidney Blumenthal's fourth appearance,
Vernon Jordan's seventh appearance, and Monica Lewinsky's
twenty-third appearance told us really very little that was
new. I take issue with the presentation of the managers. Why
should we expect Mr. Blumenthal's fifth appearance, Mr.
Jordan's eighth appearance, and Ms. Lewinsky's twenty-fourth
appearance to add anything more? Live witnesses will simply not
serve the interests of fairness. They will not serve the
interests of the American people, and they will not serve the
interests of the Senate. In fact, live testimony from these
three individuals--or from Ms. Lewinsky alone--will be worse
than an exercise in redundancy and will be an exercise in
excess. It will only postpone the end of the trial that nobody
wants anymore and that no one wants to prolong any longer.
There is every reason, finally and at long last, to bring the
trial to a close. And calling live witnesses, I submit, will
not be quick, and it will not be easy. It will prevent the
Senate from keeping its pledge to bring this trial to a
conclusion by February 12.
Because live witnesses are unnecessary for the resolution
of this matter, perhaps the most important question for the
Senate to consider and resolve itself is whether calling live
witnesses might, in fact, tarnish the Senate as an institution.
This is a question that only you can resolve, the Members of
the Senate. And you certainly need not take instructions from
me or from any of us at this table on that subject. But the
question is worth asking: Will the public's respect for the
Senate and for the Members of this body be enhanced by calling
live witnesses? Does the Senate really feel a need or an
obligation or some requirement to bring Ms. Lewinsky to sit
here and testify in the well of this historic Chamber?
The managers first argued that live witnesses were
necessary to resolve conflicts of testimony, that the only way
to reconcile disparities and differences in testimony was to
bring in live witnesses. Today we know that is not true. You
gave the managers an opportunity to resolve those conflicts and
find new facts. But most of the critical conflicts that existed
a week ago still exist today.
Calling Monica Lewinsky to testify a 24th time is not
likely to resolve those conflicts. Then we were told that we
must look into the eyes of the witnesses and observe their
demeanor to make a judgment as to credibility. But you now have
the opportunity to observe almost every major witness as he or
she testifies. Precious little is left to the imagination or to
guess or to question the credibility, and you certainly have a
better chance of observing demeanor through the videotape than
you do with a witness here on the floor of the Senate.
We are now given a third reason why live witnesses are
absolutely necessary to this trial to go forward; that is to
``validate'' the testimony of these witnesses.
According to Mr. Manager Hyde, the depositions have been
successful, but ``what we need now is to validate the record
that already exists under oath about obstruction of justice and
perjury.''
Ladies and gentlemen of the Senate, we on this side of the
House have never challenged that record. We have always agreed
that the witnesses said what the record says they said, and
that record needs no further validation through the live
testimony of individual witnesses.
Those of us who have made a career of being lawyers and
trying cases probably understand better than anyone else why
the House managers are so adamant in their desire to call live
witnesses. It keeps the door open if only for a few more days.
As Mr. Kendall observed last week, like Mr. Micawber in ``David
Copperfield,'' they hope against hope that something may turn
up.
As an abstract proposition, the importance of live
witnesses cannot be disputed. They are important to prosecutors
who are trying to make a case. They are important to defense
lawyers who are trying to defend a case. Trial lawyers know
better than anyone that live witnesses can make all the
difference in a trial. There is just no disputing that point.
But that abstract question is not the real live question
that the Senate has before it today. The issue before the
Senate today is different. It is more specifically whether
these three witnesses, each one of whom has testified on
multiple occasions under oath before the Federal grand jury, or
have been interviewed on multiple occasions by lawyers and law
enforcement officers, would have anything whatsoever to add to
this trial if they were to appear before you in person. The
answer to that question is clearly no.
The answer is no--not because Ms. Lewinsky has already been
interviewed so many times and has testified so many times, not
because she was just interviewed a few weekends ago, and not
because she appeared and answered the House managers' questions
under oath for many hours just 4 days ago. The answer is no
because if you watch the videotape of her testimony, and if you
look at the videotape of the testimony of Mr. Jordan and Mr.
Blumenthal, you realize and you know deep in your bones that
calling these witnesses to testify personally before you in the
Senate in detail would simply be a massive waste of this
Senate's time.
You already know the facts. You have already read what they
have had to say on many different occasions. And you have
already seen and read their most recent testimony under oath.
It simply can no longer be credibly argued that you need
testimony from these witnesses to ``flesh'' out the factual
record or to resolve conflicts or to fill in the evidentiary
gaps or to look the witnesses in the eye and assess their
credibility. All that has been done many times before by many
lawyers before and by many law enforcement officers many months
ago. And then it was done just recently again by House managers
as they took their deposition testimony last week.
The Senate has given the managers every opportunity to
persuade the Senate and the Nation to see this case the same
way they see it. And the managers have run a vigorous and
energetic campaign aimed at capturing the Senate and changing
American public opinion. How many times do you know of where
the prosecutors base their case on a multimillion-dollar
criminal investigation involving multiple interrogations of
witnesses, producing 60,000 pages of documents, generating 19
boxes of evidence, when the prosecutors are allowed to go back
to those witnesses again and again and again in an effort to
maybe--somehow maybe--in some way to make their case, covering
the same territory, presenting the same evidence, hour after
hour? In fact, in our view, the Senate has indulged the
managers. And despite the misgivings of many Senators, the
Senate has leaned over backwards to accommodate the managers.
We believe it is time for the Senate to say it is time to
vote. Given the state of the record compiled by the Office of
Independent Counsel, given the discovery that has already been
given to the managers, the evidence is as it is, and it is not
likely to change in any significant way. The moment of truth
can no longer be avoided, and the Senate should move to make
the decision.
President Clinton is not guilty of having committed high
crimes and misdemeanors. He should not be removed from office.
The Senate must act now to end this impeachment trial finally
and for all time.
Finally, as to the proposed proceedings for Saturday,
Senate Resolution 30 gives the House managers and White House
counsel an opportunity to ``make a presentation'' to the Senate
employing all or portions of the videotape of the deposition
testimony. And the final portion of the motion involves a
request that the parties be permitted to present before the
Senate for a period of time not to exceed a total of 6 hours
equally divided all or portions of the parts of the videotapes
of the oral depositions of Ms. Lewinsky, Mr. Jordan, and Sidney
Blumenthal that have been admitted into evidence.
We are convinced that such a presentation would provide no
new information to the Senate and would only serve to delay
this trial and further burden the service of the Senate.
We also believe that there is a potential for unfairness
that lurks in the process of excerpting and presenting portions
of individual videotape testimony out of context. We remain
committed to the notion that to be fair to all sides, the
videotapes, if they are used, must be shown in their entirety
or shown not at all. And, above all, we do not believe these
videotapes should be released to the public in any form which
would of course occur if they were used as part of the
presentation on Saturday.
Senators have themselves been reviewing the videotaped
deposition testimony of the witnesses at great length and in
great detail over the past 4 days. It appears to us that the
Senate has been very conscientious in carrying out this
assignment. And within a matter of days, Senators will listen
to final arguments from each side.
Is there really a need for an intermediate stage involving
the playing of videotape testimony of the very same evidence?
After conscientiously reviewing the videotape testimony and
reading the transcripts of that testimony, should Senators now
be required to sit and watch and listen to more of the same?
Such an exercise would only be cumulative and causes us to ask
what the point would be. We just do not think that additional
presentations of the same evidence that Senators have been
reviewing over the past few days will be that helpful to the
process.
Presumably, the House managers seek to present a collection
of snippets--the greatest hits from the deposition testimony of
Ms. Lewinsky, Mr. Jordan, and Mr. Blumenthal. This would be
unfortunate because it would require a full response from the
White House--presumably our own collection of snippets aimed at
putting the managers' excerpts into some kind of context. This
would be a dual of snippets and excerpts, and presumably each
side in the course of the presentation would conduct a guided
tour for the Senate through that evidence, although I must say
that the language of the motion leaves that open to some doubt.
The language of the motion provides no opportunity for
argument, no opportunity for explanation, and simply talks
about playing a total of 6 hours equally divided, all or
portions of the parts of the videotapes.
Is this the way your time is best used in this enterprise?
We fully understand the House managers' desire--and even share
it--to highlight and explain the importance of certain
testimony that came out of the depositions over the past few
days. But in truth, there are no bombshells in that testimony.
There is no dynamite. There are no explosions. We believe that
highlighting, explaining, and calling attention to those parts
of that testimony that are important can be done with the
transcripts, and the transcripts more than satisfy the
requirement that we see, or the need to conduct that function,
carry out that function. That is what ordinary lawyers do when
they are trying cases or arguing in front of a jury.
To the extent that the managers wish to call attention to
various aspects of the testimony, we think they will have ample
time to do so in the course of their final argument.
Traditionally, that is the time to do that, during closing
arguments, the time for advocates in a trial to marshal their
evidence, to summarize and comment on that evidence; and to
allow the managers to go through the deposition testimony first
would be tantamount to giving the managers two closing
arguments.
In summary, Mr. Chief Justice, I have a point of
parliamentary inquiry I would direct to the Chair having to do
with the first paragraph, the first section of the proposed
motion submitted by the House managers. Is there any way that
the Senate can deal first with the question of the first
question being bifurcated? Is there any way the Senate can
bifurcate this first question and a separate vote be taken
first on including the transcripts of the deposition testimony
in the record of the trial and, second, whether the videotapes
should also be included in the record?
The CHIEF JUSTICE. A preemptive motion to that effect could
be made by any Senator.
Mr. Counsel CRAIG. Thank you.
recess
The CHIEF JUSTICE. The majority leader.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we take a 15-minute recess. I think we can address that
question during this recess.
There being no objection, at 2:22 p.m. the Senate recessed
until 2:44 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, I believe that there is time
remaining for arguments by the White House counsel, and then at
their conclusion, by the House managers. After that, I will
make an attempt to explain to the Senate exactly what is in the
motions, because there seems to be some degree of question
about that. Then we will be prepared to have a series of votes
at that time. I still believe we should be able to start that
around 4 o'clock. I yield the floor.
The CHIEF JUSTICE. The Chair recognizes Mr. Craig.
Mr. Counsel CRAIG. Mr. Chief Justice, we have completed our
presentation. Thank you.
The CHIEF JUSTICE. The House managers have 19 minutes
remaining.
The Chair recognizes Mr. Manager Bryant.
Mr. Manager BRYANT. Mr. Chief Justice, I will respond
briefly, to be followed by Mr. Manager McCollum, who will be
followed by Mr. Manager Hutchinson.
Let me first talk quickly about Mr. Craig's argument about
disagreeing on the admission of the video depositions. He cited
the House proceedings, and we want to be clear as to our belief
of our position in the House in this process, as the accusatory
branch of the Government in this process, and I think that is
the case because we vote by a majority vote, we chose to bring
forward the case that we felt established the allegations of
impeachment.
There was no conflict of evidence brought forward from
those House proceedings. This evidence was not challenged until
we came to this body, the appropriate body, for resolving the
evidence and trying the case, as you will. That is evidenced by
the constitutional requirement that you must vote conviction
based on two-thirds of your body. But the actual conflict was
not presented until we arrived here in the Senate. By allowing
us to have this procedure of taking depositions, we have
focused more clearly on resolving those particular conflicts.
I might add also in response to Mr. Craig's statement that
the Starr Report was released out to the public and, as a
result of that, there may be danger here in releasing these
video depositions. But let me tell you about the House vote on
the Starr Report. Seventy percent of the Democrats supported
the release of those documents; 100 percent of the Democratic
leadership in the House supported the release of those
documents. So it was not just one party over the other party
that threw these out to the public. It was a decision that was
a bipartisan decision on the part of the House.
I might add, that is not our interest in doing this with
video depositions. We are open to your process, but we must
conclude by those who would argue that perhaps you should open
your debate to the public, we don't see the consistency in
trying to take a very important part of the evidence in this
case and not opening that to the public. So we are at your
wishes. It is our desire to make the presentation using all or
portions of these video depositions and to use those as fully
as we would any other evidence.
With that said, I ask Mr. Manager McCollum to follow me.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
McCollum.
Mr. Manager McCOLLUM. Thank you very much, Mr. Chief
Justice.
If you listen to the White House counsel, the simple fact
is, they don't want a public display in any form of any
testimony here in front of the Senate. They don't want the
public to have an opportunity to have a public trial.
Now, maybe an impeachment trial is not exactly the same as
any other trial, but in the history of the Senate, it has been
a basically open process, except for the voting. It has been an
opportunity for witnesses to come before you. It has been an
opportunity for people to be heard. It has been an opportunity
for the public to hear the people who want to speak.
White House counsel didn't just say, ``We don't want live
witnesses here.'' They said, ``We don't want you to be able to
admit even into evidence the videotape that might become
public, and we don't want you to be able to show any portion,
or all even, of the videotapes of the depositions that have
been taken.''
If a Republican had gotten up and said that, we would have
probably gotten hung on some political petard for that. The
reality is, the public has business here. This is a trial. I
suggest and submit to you, we need--you need--the opportunity
to hear these witnesses one way or the other--preferably Monica
Lewinsky live. We need to bring closure in this matter.
How can the public come to closure? How can those who feel
so emotionally, as we know they do, around the country, come to
closure on this--which we need for them to do as much as you
need to resolve and we need to have you resolve the questions
before you--how can they come to closure? How can we all come
to closure without an opportunity for the public to
participate, in one way or another, in seeing the credibility,
judging the witnesses, judging the truth of this?
Let me remind you, there is nothing in these depositions
that is salacious material, so it has been constrained very
delicately--nothing at all that would be offensive to anybody.
In addition, think about this for a minute. When it comes
to calling Monica Lewinsky live, when it comes to letting the
deposition be presented, if you believe that the President did
not break the law--not talking about whether he should be
removed from office--if you believe he did not break the law,
that he did not commit the crimes of perjury and obstruction of
justice, that means you must have concluded that Monica
Lewinsky was not telling the truth when she said about the
false affidavit, ``I knew what he meant,'' when she said about
the concealment of the gifts, ``Betty called me,'' when she
said about the nature of their relationship, ``It began the
night we met,'' and many other things.
You, I would submit, my colleagues in the Senate, have a
moral obligation to allow Monica Lewinsky to come here and be
judged on her credibility, not just by you but by the public,
by all of us, as a live witness. Certainly, barring that, you
have an obligation to have the credibility on the issues of
guilt or innocence of these crimes be judged by everybody, at
the very least, by the presentation of these videos in a
public, open format here in the Senate before everybody. I
think it is a powerful question you have to resolve.
I submit one last point. For those of you who do believe
the President is guilty of these crimes, you have an obligation
to let the showing of these depositions, or the presentation
preferably of Monica Lewinsky live, so those who maybe don't
think the same way you do have an opportunity for that
credibility to be judged. Only if the witnesses are present can
they be judged that way.
The most remarkable thing about the White House
presentation may have been, just a moment ago, the admission
that normally in trials this is exactly what happens. And I
present to you the suggestion, this is exactly what should
happen here today.
I yield to Manager Hutchinson.
The CHIEF JUSTICE. The Chair recognizes Manager Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
Very briefly, I was asked to respond to the last argument
by counsel for the President in regard to their objections on
the evidentiary presentation of 6 hours under the motion, which
would be, I believe, on Saturday. After 6 days of opening
statements in this trial, and after 2 days of questions and
answers, and then we had, I believe, 2 days of motion
arguments, you have heard from all the lawyers more than you
ever wanted to hear. I don't think that it is too much to ask,
for 6 hours of discussion of the evidentiary record that was
developed from the deposition testimony. I think that is
reasonable.
It has been argued that it is going to be snippets, it is
going to be a battle of snippets.
If this motion is passed, it will be introduced into
evidence, and each side will have an opportunity to discuss
that evidence, to contrast it with other individuals'
testimony, and to present it in a fashion that is most
understandable. It is equally divided; therefore, both sides
can present their case. That is how it is traditionally done.
There is nothing unusual about that, and certainly the White
House defense lawyers will be very vigilant in making sure that
it is fairly presented.
There was objection that was made--and this is overlapping
a little bit--as to the public release of the video. Our motion
really goes to introducing into evidence. It is up to you as to
how that evidence is handled. Customarily in a trial, when
something is entered into evidence, that is released. But there
was concern expressed about the witnesses, about Mr. Jordan and
the fact that he has testified and now it would be made public.
I recall the White House defense lawyers, on this screen over
here, put Mr. Jordan's video up there for the world to see. I
believe they also brought in other witnesses on video that was
put out there for the whole world to see. So I think it is a
little bit late to come in and say that that should not be
subject to public discussion.
I think that the motion that is presented is reasonable. It
is fair. They say there is nothing of dynamite or there is
nothing explosive. Then if that is the case, there should not
be any objection to the discussion and the fair playing of that
evidence. But in fact much of this is due because it was not
developed after the President made his grand jury appearance.
Many of these witnesses testified early. They were not able to
testify again after the President's grand jury testimony. So I
think there are new areas that have certainly been developed.
With that, Mr. Chief Justice, I yield back.
The CHIEF JUSTICE. Will the House managers yield back?
Mr. Manager HUTCHINSON. Yes, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Mr. Chief Justice, then all time has been yielded
back on both sides?
The CHIEF JUSTICE. Yes.
Mr. LOTT. We had expected this would take a little bit
longer. [Laughter.]
Mr. Chief Justice, I believe it would be of interest to the
Senators that we give just a brief explanation of the motions.
I believe Senator Daschle may have an additional motion that he
would like to offer. So that we can make sure he has had the
time to prepare that, and how we would go into the voting
procedure, I suggest the absence of a quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, very briefly, I believe that
Senator Daschle, or one of his Senators, will have a peremptory
motion that they will offer, and it will be read by the clerk;
then there will be a vote on that. Then there will be a vote on
the 3 divisions that have been identified--the 3 votes on the
one motion--and then I believe Senator Daschle will also have a
motion; we will go straight to debate and closing arguments and
the vote on the articles of impeachment. Is that a correct
recitation?
I yield to Senator Daschle.
Mr. DASCHLE. Mr. Chief Justice, I appreciate the Senator
yielding. As I understand it, Senator Murray's motion will
relate to the third motion, which is, as I understand it, the
motion that allows for video excerpts to be used. Her motion
would restrict both managers to transcripts, written
transcripts. I am not sure in which order her motion should be
offered, but since it relates to the third one, perhaps it
would be in concert with that motion.
The CHIEF JUSTICE. This is the motion to debate and divide
the third motion.
Mr. DASCHLE. That's correct.
Mr. LOTT. We would vote on the first paragraph, the second
paragraph, and then there would be a motion at that point by
Senator Murray and a vote on that, and a vote then on the third
division, and then a vote on the articles of impeachment
itself.
vote on division i
The CHIEF JUSTICE. The question is on Division I. The clerk
will read Division I.
The legislative clerk read as follows:
The House moves that the transcriptions and videotapes of
the oral depositions taken pursuant to Senate resolution 30
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 be admitted into evidence.
The CHIEF JUSTICE. The yeas and nays are required.
The clerk will call the roll.
The legislative clerk called the roll.
The yeas and nays resulted--yeas 100, nays 0, as follows:
[Rollcall Vote No. 9]
[Subject: Division I of House managers motion regarding admission of
evidence]
YEAS--100
Abraham
Akaka
Allard
Ashcroft
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bryan
Bunning
Burns
Byrd
Campbell
Chafee
Cleland
Cochran
Collins
Conrad
Coverdell
Craig
Crapo
Daschle
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moynihan
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden
The CHIEF JUSTICE. On this vote, the yeas are 100, the nays
are 0. Division I of the motion is agreed to.
vote on division ii
The CHIEF JUSTICE. The next vote will be on Division II of
the motion. The clerk will read Division II of the motion.
The assistant legislative clerk read as follows:
Division II: The House further moves that the Senate
authorize and issue a subpoena for the appearance of Monica S.
Lewinsky before the Senate for a period of time not to exceed
eight hours, and in connection with the examination of that
witness, the House requests that either party be able to
examine the witness as if the witness were declared adverse,
that counsel for the President and counsel for the House
Managers be able to participate in the examination of that
witness, and that the House be entitled to reserve a portion of
its examination time to reexamine the witness following any
examination by the President.
The CHIEF JUSTICE. The yeas and nays are automatic. The
clerk will call the roll.
The assistant legislative clerk called the roll.
The yeas and nays resulted--yeas 30, nays 70, as follow:
[Rollcall Vote No. 10]
[Subject: Division II of House managers motion regarding appearance of
witnesses]
YEAS--30
Abraham
Ashcroft
Bond
Bunning
Burns
Cochran
Craig
Crapo
DeWine
Fitzgerald
Frist
Gramm
Grams
Hagel
Hatch
Helms
Hutchinson
Inhofe
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Santorum
Smith (NH)
Specter
Thompson
NAYS--70
Akaka
Allard
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Brownback
Bryan
Byrd
Campbell
Chafee
Cleland
Collins
Conrad
Coverdell
Daschle
Dodd
Domenici
Dorgan
Durbin
Edwards
Enzi
Feingold
Feinstein
Gorton
Graham
Grassley
Gregg
Harkin
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Sarbanes
Schumer
Sessions
Shelby
Smith (OR)
Snowe
Stevens
Thomas
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden
The CHIEF JUSTICE. The Senate will be in order.
On this vote, the yeas are 30, the nays are 70. Division II
of the motion is not agreed to.
The Chair recognizes the Senator from Washington, Mrs.
Murray.
murray substitute for division iii
Mrs. MURRAY. Mr. Chief Justice, I send a substitute for
Division III to the desk.
The CHIEF JUSTICE. The clerk will report.
The legislative clerk read as follows:
The Senator from Washington, Mrs. Murray, moves that the
following shall be substituted for Division III:
I move that the parties be permitted to present before the
Senate, for a period of time not to exceed a total of six
hours, equally divided, all or portions of the parts of the
written transcriptions of the depositions of Monica S.
Lewinsky, Vernon E. Jordan, Jr., and Sidney Blumenthal.
The CHIEF JUSTICE. Very well.
The Parliamentarian advises me that there are 2 hours of
argument on this motion. Who is the proponent?
Mr. DASCHLE. Mr. Chief Justice, I ask unanimous consent
that the time be yielded back.
The CHIEF JUSTICE. Without objection, it is so ordered.
I think the clerk should read Division III, having read the
proposed substitute.
The legislative clerk read as follows:
The House further moves that the parties be permitted to
present before the Senate, for a period of time not to exceed a
total of six hours, equally divided, all or portions of the
parts of the videotapes of the oral depositions of Monica S.
Lewinsky, Vernon E. Jordan, Jr., and Sidney Blumenthal admitted
into evidence, and that the House be entitled to reserve a
portion of its presentation time.
The CHIEF JUSTICE. Now the clerk will read the substitute
again.
The legislative clerk read as follows:
I move that the parties be permitted to present before the
Senate for a period of time not to exceed a total of six hours,
equally divided, all or portions of the parts of the written
transcriptions of the depositions of Monica S. Lewinsky, Vernon
E. Jordan, Jr., and Sidney Blumenthal.
The CHIEF JUSTICE. The yeas and nays are automatic. The
question is on the substitute. The clerk will call the roll.
The legislative clerk called the roll.
The yeas and nays resulted--yeas 27, nays 73, as follows:
[Rollcall Vote No. 11]
[Subject: Murray motion to substitute Division III of the House motion]
YEAS--27
Akaka
Biden
Bingaman
Boxer
Campbell
Conrad
Daschle
Dodd
Dorgan
Harkin
Inouye
Johnson
Kennedy
Kerrey
Landrieu
Lautenberg
Levin
Lincoln
Mikulski
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Snowe
Torricelli
NAYS--73
Abraham
Allard
Ashcroft
Baucus
Bayh
Bennett
Bond
Breaux
Brownback
Bryan
Bunning
Burns
Byrd
Chafee
Cleland
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Durbin
Edwards
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Jeffords
Kerry
Kohl
Kyl
Leahy
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Moynihan
Murkowski
Nickles
Roberts
Roth
Santorum
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
Wellstone
Wyden
The CHIEF JUSTICE. On this vote the yeas are 27, the nays
are 73, and the motion is not agreed to.
vote on division iii
The CHIEF JUSTICE. The vote is now on the Division III of
the motion. The clerk will read Division III.
The assistant legislative clerk read as follows:
Division III. The House further moves that the parties be
permitted to present before the Senate, for a period of time
not to exceed a total of six hours, equally divided, all or
portions of the parts of the videotapes of the oral depositions
of Monica S. Lewinsky, Vernon E. Jordan, Jr., and Sidney
Blumenthal admitted into evidence, and that the House be
entitled to reserve a portion of its presentation time.
The CHIEF JUSTICE. The yeas and nays are automatic. The
clerk will call the roll.
The assistant legislative clerk called the roll.
The yeas and nays resulted--yeas 62, nays 38, as follows:
[Rollcall Vote No. 12]
[Subject: Division III of the House managers motion regarding
presentation of evidence]
YEAS--62
Abraham
Allard
Ashcroft
Bennett
Bond
Breaux
Brownback
Bryan
Bunning
Burns
Byrd
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feingold
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Moynihan
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
Wellstone
Wyden
NAYS--38
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feinstein
Graham
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Mikulski
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Snowe
Torricelli
The CHIEF JUSTICE. On this vote, the yeas are 62, the nays
are 38. Division III of the motion is agreed to.
The CHIEF JUSTICE. The Chair recognizes the minority
leader.
motion to proceed to closing arguments
Mr. DASCHLE. I send a motion to the desk.
The CHIEF JUSTICE. The clerk will report the motion.
The legislative clerk read as follows:
The Senator from South Dakota [Mr. Daschle] moves that the
Senate now proceed to closing arguments; that there be 2 hours
for the White House Counsel followed by 2 hours for the House
Managers; and that at the conclusion of this time the Senate
proceed to vote, on each of the articles, without intervening
action, motion or debate, except for deliberations, if so
decided by the Senate.
The CHIEF JUSTICE. The minority leader.
Mr. DASCHLE. I ask unanimous consent that all time be
yielded back.
The CHIEF JUSTICE. In the absence of objection, it is so
ordered. The yeas and nays are automatic. The clerk will call
the roll.
The legislative clerk called the roll.
The yeas and nays resulted--yeas 44, nays 56, as follows:
[Rollcall Vote No. 13]
[Subject: Daschle motion to proceed to closing arguments]
YEAS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NAYS--56
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feingold
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
The CHIEF JUSTICE. On this vote the yeas are 44, the nays
are 56, and the motion is not agreed to.
The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I believe that was the last of
the motions that had been offered.
I am ready to go to the closing script unless there is some
other motion pending or to be offered.
Mr. Counsel RUFF. May I ask, Mr. Chief Justice, for
indulgence for just a couple minutes to consult with my
colleagues?
Mr. LOTT. Mr. Chief Justice, I suggest the absence of a
quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I believe that it is in order
for White House counsel to offer a motion at this point. If
they wish to do so, then I believe they could, then we would
vote on that motion.
The CHIEF JUSTICE. The Chair recognizes Mr. White House
Counsel Ruff.
Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
motion to provide written notice to counsel
Mr. Counsel RUFF. Mr. Majority Leader, I want to hand up to
the desk a brief motion dealing with the presentation of
videotape evidence on Saturday pursuant to the motion that has
just been voted on by the Senate. If I may, I hand it up to the
clerk.
The CHIEF JUSTICE. The clerk will read the motion.
The legislative clerk read as follows:
Mr. Ruff moves that no later than 2:00 P.M. on Friday,
February 5, 1999, the Managers shall provide written notice to
counsel for the President indicating the precise page and line
designations of any video excerpts from the depositions of
Monica Lewinsky, Vernon Jordan or Sidney Blumenthal that they
plan to use during their three-hour presentation on Saturday,
or during their closing argument.
The CHIEF JUSTICE. There are 2 hours equally divided on the
motion.
Mr. Counsel RUFF. Mr. Chief Justice, we won't use but a
small percentage of that. I will turn the matter over, if I
may, to my colleague, Mr. Kendall.
The CHIEF JUSTICE. The Chair recognizes Mr. Counsel
Kendall.
Mr. Counsel KENDALL. Thank you, Mr. Chief Justice.
Ladies and gentlemen of the Senate, House managers, I will
be brief. This is simply a procedural motion which I think will
make for a fairer hearing and a more efficient use of the
Senate's time on Saturday.
Fascinating though these depositions are, I don't think
there is any need to inflict them on you repeatedly. What we
are asking in this motion is simply a procedure that would be
normal in a civil trial, and that is by a fair time tomorrow
for the House managers to designate the portions of the three
depositions that they intend to use. That will allow us not to
repeat those portions, and it will give us some fair chance to
organize our responsive presentation.
The burden is on the House managers. I think this is not an
extensive set of transcripts. I think it can be easily done.
You have all, many of you, watched the depositions this week,
read the transcripts. So I think if we can simply have this
designation by 2 o'clock tomorrow, it will enable Saturday,
perhaps, to be a shorter proceeding.
The CHIEF JUSTICE. Counsel for House managers? The Chair
recognizes Mr. Manager Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, thank you.
I will imitate my colleague at the bar Mr. Kendall's
brevity, if not his eloquence.
I simply suggest this is somewhat a unique opportunity that
counsel is inviting the House managers to engage in, to give
counsel notice of page and line of transcripts for the
presentation of evidence that we are going to make. It is our
prerogative to put on our evidence; it is White House counsel's
opportunity to put on their evidence. Asking us to choreograph
that for them and with them is something that I am unfamiliar
with, except for one time.
I remember during my days as a judge in California that a
similar request was made for me, and a law clerk pointed out to
me language from one of the late great justices of the
California Supreme Court, Otto Kaus. Apparently, a similar
request was made to Justice Kaus to do the same thing in a
case, and Justice Kaus looked at the lawyer making the request
and he 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.''
With that, Mr. Chief Justice, we will yield back the
balance of our time.
The CHIEF JUSTICE. Mr. Kendall.
Mr. Counsel KENDALL. That philosophy might want to be
emulated at some point by the drafters of the Federal Civil
Rules, but it is not. In every Federal civil trial, this
procedure is followed, the designation, the identifying, and
designating of deposition excerpts.
Again, I think it will make for a fairer and more efficient
proceeding. I don't think trial by surprise has a place here.
The CHIEF JUSTICE. The vote is on the motion.
The clerk will read the motion.
The legislative clerk read as follows:
Mr. Ruff moves that no later than 2:00 P.M. on Friday,
February 5, 1999, the Managers shall provide written notice to
counsel for the President indicating the precise page and line
designations of any video excerpts from the depositions of
Monica Lewinsky, Vernon Jordan or Sidney Blumenthal that they
plan to use during their three-hour presentation on Saturday,
or during their closing argument.
Mr. BYRD. Mr. Chief Justice, may we have order.
The CHIEF JUSTICE. I fully agree with the Senator.
Mr. BYRD. Would the clerk read that again.
The CHIEF JUSTICE. Let the Senate remain in order and let
the clerk read the motion again.
The legislative clerk read as follows:
Mr. Ruff moves that no later than 2:00 P.M. on Friday,
February 5, 1999, the Managers shall provide written notice to
counsel for the President indicating the precise page and line
designations of any video excerpts from the depositions of
Monica Lewinsky, Vernon Jordan or Sidney Blumenthal that they
plan to use during their three-hour presentation on Saturday,
or during their closing argument.
The CHIEF JUSTICE. The yeas and nays are automatic. The
clerk will call the roll.
The assistant legislative clerk called the roll.
[Disturbance in the Visitors' Galleries.]
The CHIEF JUSTICE. The Sergeant at Arms will restore order
to the gallery.
The assistant legislative clerk continued with the call of
the roll.
The yeas and nays resulted--yeas 46, nays 54, as follows:
[Rollcall Vote No. 14]
[Subject: White House Counsels' motion]
YEAS--46
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NAYS--54
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
The CHIEF JUSTICE. On this vote, the yeas are 46, the nays
are 54. The motion is rejected.
orders for saturday, february 6 and monday, february 8, 1999
Mr. LOTT. Mr. Chief Justice, I believe that completes all
the motions. Therefore, I ask unanimous consent that when the
Senate completes its business today, it stand in adjournment
until 10 a.m. on Saturday, February 6, and at 10 a.m. on
Saturday, immediately following the prayer, the Senate will
resume consideration of the articles of impeachment. I further
ask consent that on Saturday there be 6 hours equally divided
between the House managers and White House counsel for
presentations. I further ask that following those presentations
on Saturday, the Senate then adjourn until 1 p.m. on Monday,
February 8. I finally ask consent that on Monday, immediately
following the prayer, the Senate resume consideration of the
articles of impeachment, and there then be 6 hours equally
divided between the managers and White House counsel for final
arguments.
Mr. LEAHY. Mr. Chief Justice, reserving the right to
object, and I shall not, I ask the distinguished leader this.
We have had exhibits handed out today to be printed in the
Congressional Record, referring to depositions which, I
understand under rule XXIX, are still confidential. Are those
to be printed in the Record?
Mr. LOTT. I will ask consent that the transcripts of the
depositions be printed in the Record of today's date.
Mr. LEAHY. The exhibits were handed out today in debate.
Were they handed out under rule XXIX?
Mr. LOTT. I believe we got approval that they be used in
the oral presentations at the beginning of the session today.
Mr. LEAHY. I withdraw any objection.
Mr. CHIEF JUSTICE. Objection has been heard.
Mr. LEAHY. Mr. Chief Justice, I withdrew any objection.
Mr. KERRY addressed the Chair.
The CHIEF JUSTICE. The Senator from Massachusetts, Mr.
Kerry, is recognized.
Mr. KERRY. Mr. Chief Justice, reserving the right to
object. I ask the majority leader, is there an assumption that
if White House counsel were to want sufficient time on Saturday
in order to be able to present video testimony countering
whatever surprise video--and there may or may not be a
surprise--would they have time to be able to provide that on
Saturday--not to carry over, but merely if they choose to, to
do that on Saturday?
Mr. LOTT. I am not sure I understand the question, except
that we will come in at 10, and we will have 6 hours equally
divided. I presume that the House would make a presentation
first and then the White House and then close. There would be
time during that 6-hour period for the White House to use it as
they see fit. Are you asking that there would be some sort of
break so they would be able to consider that?
Mr. KERRY. Clearly, the purpose of the trial and the
purpose of this effort is to have a fair presentation of
evidence. The Senate now having denied notice to White House
counsel of what areas may be the subject of video, it might be
that the voice of the witnesses themselves is the best response
to whatever it is that the House were to present. If they were
to decide----
Mr. BROWNBACK. Mr. Chief Justice, I call for the regular
order.
The CHIEF JUSTICE. The regular order has been called for.
There is a unanimous consent request pending. Is there
objection?
Mr. LOTT. Mr. Chief Justice, briefly, if I could say on
behalf of my unanimous consent, and in brief response to the
question, we have all worked hard and bent over backward trying
to be fair. I am sure if there is something that would be
needed on Saturday, it would be carefully considered by both
sides.
Mr. KERRY. Mr. Chief Justice, I suggest the absence of a
quorum.
Mr. GRAMM. A quorum is present.
The CHIEF JUSTICE. The majority leader has the floor.
Mr. LOTT. Mr. Chief Justice, I believe it would be
appropriate to go ahead and get this unanimous consent
agreement. We will continue to work with both sides to try to
make sure there is a fair way to proceed on Saturday. We will
have the remainder of today and tomorrow to work on that. So I
would like to renew my unanimous consent request.
The CHIEF JUSTICE. Is there objection?
Mr. BOND. Mr. Chief Justice, reserving the right to object.
May I inquire of the majority leader if that Saturday time
schedule gives both parties adequate time to prepare for the
presentation of the evidence? Have both sides agreed that they
will be prepared?
Mr. LOTT. Mr. Chief Justice, as best I can respond to that,
I just say that hopefully both sides have had more than
adequate time allocated on Saturday. One of the reasons we are
doing it this way--Saturday instead of tomorrow--is so both
sides will have an opportunity to review everything and
hopefully communicate with each other. We will do that Friday
during the day so that an orderly presentation can be made by
both sides on Saturday. I believe we are seeing a problem here
where there may not be one.
But if one develops certainly we would take it into
consideration.
Mr. Chief Justice, I renew my request.
The CHIEF JUSTICE. Is there objection? In the absence of
objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
those parts of the transcripts of the depositions admitted into
evidence be printed in the Congressional Record of today's
date.
I further ask consent that the deposition transcripts of
Monica Lewinsky, Vernon Jordan, and Sidney Blumenthal, and the
videotapes thereof, be immediately released to the managers on
the part of the House and the counsel to the President for the
purpose of preparing their presentations, provided, however,
that such copies shall remain at all times under the
supervision of the Sergeant at Arms to ensure compliance with
the confidentiality provisions of S. Res. 30.
The CHIEF JUSTICE. In the absence of objection, it is so
ordered.
[The material follows:]
In the Senate of the United States Sitting for the Trial of the
Impeachment of William Jefferson Clinton, President of the United
States
excerpts of video deposition of monica s. lewinsky
(Monday, February 1, 1999, Washington, D.C.)
SENATOR DeWINE: If not, I will now swear the witness.
Ms. Lewinsky, will you raise your right hand, please?
Whereupon, MONICA S. LEWINSKY was called as a witness and, after
having been first duly sworn by Senator DeWine, was examined and
testified as follows:
SENATOR DeWINE: The House Managers may now begin your questioning.
MR. BRYANT: Thank you, Senator.
Good morning to all present.
examination by house managers
BY MR. BRYANT:
Q. Ms. Lewinsky, welcome back to Washington, and wanted to just
gather a few of our friends here to have this deposition now. We do
have quite a number of people present, but we--in spite of the numbers,
we do want you to feel as comfortable as possible because I think we--
everyone present today has an interest in getting to the truth of this
matter, and so as best as you can, we would appreciate your answers in
a--in a truthful and a fashion that you can recall. I know it's been a
long time since some of these events have occurred.
But for the record, would you state your name once again, your full
name?
A. Yes. Monica Samille Lewinsky.
Q. And you're a--are you a resident of California?
A. I'm--I'm not sure exactly where I'm a resident now, but I--
that's where I'm living right now.
Q. Okay. You--did you grow up there in California?
A. Yes.
Q. I'm not going to go into all that, but I thought just a little
bit of background here.
You went to college where?
A. Lewis and Clark, in Portland, Oregon.
Q. And you majored in--majored in?
A. Psychology.
Q. Tell me about your work history, briefly, from the time you left
college until, let's say, you started as an intern at the White House.
A. Uh, I wasn't working from the time I--
Q. Okay. Did you--
A. I graduated college in May of '95.
Q. Did you work part time there in--in Oregon with a--with a
District Attorney--
A. Uh--
Q. --in his office somewhere?
A. During--I had an internship or a practicum when I was in school.
I had two practicums, and one was at the public defender's office and
the other was at the Southeast Mental Health Network.
Q. And those were in Portland?
A. Yes.
Q. Okay. What--you received a bachelor of science in psychology?
A. Correct.
Q. Okay. As a part of your duties at the Southeast Health Network,
what did you--what did you do in terms of working? Did you have direct
contact with people there, patients?
A. Yes, I did. Um, they referred to them as clients there and I
worked in what was called the Phoenix Club, which was a socialization
area for the clients to--really to just hang out and, um, sort of work
on their social skills. So I--
Q. Okay. After your work there, you obviously had occasion to come
to work at the White House. How did--how did you come to decide you
wanted to come to Washington, and in particular, work at the White
House?
A. There were a few different factors. My mom's side of the family
had moved to Washington during my senior year of college and I wanted--
I wasn't ready to go to graduate school yet. So I wanted to get out of
Portland, and a friend of our family's had a grandson who had had an
internship at the White House and had thought it might be something I'd
enjoy doing.
Q. Had you ever worked around--in politics and campaigns or been
very active?
A. No.
Q. You had to go through the normal application process of
submitting a written application, references, and so forth to--to the
White House?
A. Yes.
Q. Did you do that while you were still in Oregon, or were you
already in D.C.?
A. No. The application process was while I was a senior in college
in Oregon.
Q. Had you ever been to Washington before?
A. Yes.
Q. Obviously, you were accepted, and you started work when?
A. July 10th, 1995.
Q. Where--where were you assigned?
A. The Chief--
Q. Physically, where were you located?
A. Oh, physically?
Q. Yes.
A. Room 93 of the Old Executive Office Building.
Q. Were you designated in any particular manner in terms of--were
all interns the same, I guess, would be my question?
A. Yes and no. We were all interns, but there were a select group
of interns who had blue passes who worked in the White House proper,
and most of us worked in the Old Executive Office Building with a pink
intern pass.
Q. Now, can you explain to me the significance of a pink pass
versus a blue pass?
A. Sure.
Q. Okay. Is it--is it access?
A. Yes.
Q. To what?
A. A blue pass gives you access to anywhere in the White House and
a pink intern pass gives you access to the Old Executive Office
Building.
Q. Did interns have blue passes?
A. Yes, some.
Q. Some did, and some had pink passes?
A. Correct.
Q. And you had the pink?
A. Correct.
Q. How long was your internship?
A. It was from July 'til the end of August, and then I stayed on
for a little while until the 2nd.
Q. Are most interns for the summertime--you do part of the summer
or the entire summer?
A. I believe there are interns all year-round at the White House.
Q. Now, you as an intern, you are unpaid.
A. Correct.
Q. And tell--tell me how you came to, uh, through your
decisionmaking process, to seek a paid position and stay in Washington.
A. Uh, there were several factors. One is I came to enjoy being at
the White House, and I found it to be interesting. I was studying to
take the GREs, the entrance exam for graduate school, and needed to get
a job. So I--since I had enjoyed my internship, my supervisor at the
time, Tracy Beckett, helped me try and secure a position.
Q. Now, you mentioned the pink pass that you had. So you were able
to--I don't want to presume--you were able to get into the White House
on occasion even with a pink pass?
A. The--do you mean the White House proper, or--
Q. Yes, the White House--
A. --the complex?
Q. Yes. Let me be clear. When I--I tend to say ``White House''--I
mean the actual building itself. And I know perhaps you think of the
whole complex in terms of the whole--
A. I'm sorry. Just to be clear--
Q. Yes.
A. --do you mean the West Wing and the residence and--
Q. Right.
A. --the East Wing when you say the White House?
Q. Right. The White House where the President lives, and works, I
guess, right.
A. I'm sorry. Can you repeat the question?
Yes, yes. I mean that White House. As an intern, you had a pink
pass that did allow you to have access to that White House where the
President was on occasion?
A. No.
Q. Did not. Did you have--did you ever get in there as an intern?
A. Yes.
Q. And under--under what circumstances?
A. It--
Q. Did you have to be accompanied by someone, or--
A. Exactly; someone with a blue pass.
Q. So how did you--once you decided you wanted to stay in
Washington and find a paying job, you sought out some help from friends
there, people you knew, contacts, and you were--you did--you were
successful?
A. Correct.
Q. And you were hired where--where in the White House?
A. In Legislative Affairs.
Q. Now, again, to educate me on this, in that group, in that
section, department, you would have worked where, physically?
A. Physically, in the East Wing.
Q. Okay, and as an intern before, you worked in the Old Executive
Office Building?
A. Correct.
Q. But you moved about and occasionally would go into the White
House, if escorted?
A. Correct.
Q. It takes a while, but I'll get there with you; I'll catch up.
When did you actually--what was your first day on the job with the
Legislative Affairs, uh, group?
A. Um, first day on the job was sometime after the furlough. I was
hired right before the furlough, but the paperwork hadn't gone through,
so first day on the job was some point after the furlough. I don't
remember the exact date.
Q. So you remained, uh, on as an intern during the furlough--
A. Correct.
Q. --the Government shutdown period.
A. Correct.
Q. And that was in November of 1995, some date during that?
A. Yes.
Q. Okay. Um, tell me how you, um, began--I guess the--the--we're
going to talk about a relationship with the President. Uh, when you
first, uh, I guess, saw him, I think there was some indication that you
didn't speak to him maybe the first few times you saw him, but you had
some eye contact or sort of smiles or--
A. I--I believe I've testified to that in the grand jury pretty
extensively.
Q. Uh-huh.
A. Is--is there something more specific?
Q. Well, again, I'm wanting to know times, you know, how soon that
occurred and sort of what happened, you know, if you can--you know,
there are going to be occasions where you--obviously, you testified
extensively in the grand jury, so you're going to obviously repeat
things today. We're doing the deposition for the Senators to view, we
believe, so it's--
MR. CACHERIS: May I note an objection? The Senators have the
complete record, as you know, Mr. Bryant, and she is standing on her
testimony that she has given on the occasions that Mr. Stein alluded to
at the introduction of this deposition.
MR. BRYANT: Well, I appreciate that, but, uh, if this is going to
be the case, we don't even need the deposition, because we're limited
to the record and everything is in the record. So I think, uh, to be
fair, we're--we're obviously going to have to talk about, uh, some
things for 8 hours here, or else we can go home.
THE WITNESS: Sounds good to me.
[Laughter.]
MR. BRYANT: I think we probably all would like to do that.
SENATOR DeWINE: Counsel, are you objecting to the question?
MR. CACHERIS: Yes. I'm objecting to him asking specific questions
that are already in the record that--he has said they are limited to
the record, and so we accept his, his designation. We're limited to the
record.
SENATOR DeWINE: We're going to go off the record for just a moment.
THE VIDEOGRAPHER: We're going off the record at 9:37 a.m.
[Recess.]
THE VIDEOGRAPHER: We are going back on the record at 9:45 a.m.
SENATOR DeWINE: We are now back on the record.
The objection is noted, but it's overruled, and the witness is
instructed to answer the question.
Senator Leahy?
SENATOR LEAHY: And I had noted during the break that obviously, the
witness has 48 hours to correct her deposition, and would also note
that when somebody has testified to some of these things 20 or more
times that it is not unusual to have some nuances different, and that
could also be reflected in time to correct her testimony.
And I had also noted when we were off the record Mr. Manager
Bryant's comment on January 26th, page S992 in the Congressional
Record, in which he said: ``If our motion is granted, I want to make
this very, very clear. At no point will we ask any questions of Monica
Lewinsky about her explicit sexual relationship with the President,
either in deposition or, if we are permitted on the floor of the
Senate, they will not be asked.''
And I should add also, to be fair to Mr. Bryant, another sentence
in that: ``That, of course, assumes that White House Counsel does not
enter into that discussion, and we doubt that they would.'' Period,
close quote.
SENATOR DeWINE: Let me just add something that I stated to counsel
and to Ms. Lewinsky off the record, and I think I will briefly repeat
it, and that is that counsel is entitled to an answer to the question,
but Ms. Lewinsky certainly can reference previous testimony if she
wishes to do that. But counsel is entitled to a new explanation of--of
what occurred.
Counsel, you may--why don't you re-ask the question, and we will
proceed.
MR. BRYANT: May I, before I do that, ask a procedural question in
terms of timekeeping?
SENATOR DeWINE: The time is not counted--any of the time that you
have--once there is an objection, none of the time is counted until we
rule on the objection and until you then have the opportunity to ask
the question again. So the time will start now.
MR. BRYANT: Very good.
BY MR. BRYANT:
Q. Ms. Lewinsky, again, let me--I know this is difficult, but let
me apologize that, uh, that it is going to be necessary that I ask you
these questions because we're limited to the record and if we--we can't
ask you any new questions outside that record, so I have to talk about
what's in the record. And I realize you've answered all these questions
several times before, but it's, uh--I'm sincere that we really wouldn't
need to take your deposition if we couldn't ask you those kinds of
questions. So it's not motivated to cause you discomfort or to make you
sit here in Washington when you'd rather be in California. We'll try to
get through this as quickly as we can.
But we were talking about when you were first assigned there at the
White House and those initial contacts, and I mean, again, when you
were--you would see the President. I think you've mentioned you would--
there was some mild flirting going on; you would smile or you would
make eye contact. It was something of this nature?
A. Yes.
Q. And the first--was the first time you actually spoke to the
President or he spoke to you, other than perhaps a hello in the
hallway, was that on November the 15th, 1995?
A. Yes.
Q. And that was--that was the day, uh, of the first so-called
salacious encounter, the same day?
A. Yes.
Q. Now, when the President gave a statement testifying before the
grand jury, he--he described that relationship as what I considered
sort of an evolving one. He says: ``I regret that what began as a
friendship came to include this conduct.'' And he goes on to take full
responsibility for his actions. But that almost sounds as if this was
an evolving--something from a friendship evolving over time to a sexual
relationship. That was not the case, was it?
A. I--I can't really comment on how he perceived it. My perception
was different.
Q. Okay--
A. But I--I--I mean, I don't feel comfortable saying that he
didn't, that he didn't see it that way, or that's wrong; that's how he
saw it. I--
Q. But you saw it a different way?
A. Yes.
Q. Now, on November the 15th, had you already accepted this job
with Legislative Affairs?
A. Yes.
Q. And, uh, was--that was during the shutdown, so you had no job to
go to because the Government was shut down.
A. No. I accepted it on the Friday before the furlough.
Q. And that--
A. But the paperwork hadn't gone through.
Q. Okay. Did, uh--when you first met with the President on November
the 15th, did he say anything to you that would indicate that he knew
you were an intern?
A. No.
Q. Did he make a comment about your, your pink security badge?
A. Can I ask my counsel a question real quickly, please?
[Witness conferring with counsel.]
MR. CACHERIS: Okay, Mr Bryant.
THE WITNESS: Sorry. It was--that occurred in the second encounter
of that evening.
BY MR. BRYANT:
Q. Okay. On November--
A. So, not the first encounter.
Q. On November the 15th, 1995?
A. Correct.
Q. What--do you recall what he said or what he did in regard to the
intern pass?
A. He tugged on my pass and said: ``This is going to be a
problem.''
Q. And what did, uh--did he say anything else about what he meant
by ``problem''?
A. No.
Q. Tell me about your job at Legislative Affairs. Did that involve
going into the White House itself?
A. Yes. My job was in the White House.
Q. You were in one wing, but did that involve going--did it give
you access--
A. Yes.
Q. --pretty well throughout the White House?
A. Yes.
Q. What did you do primarily?
A. I worked under Jocelyn Jolly, who supervised the letters that
came from the Hill; so the opening of those letters and reading them
and vetting them and preparing responses for the President's
signature--responding.
Q. Now, you've indicated through counsel at the beginning that you
are willing to affirm, otherwise adopt, your sworn testimony of August
the 6th and August the 20th, I think, which would be grand jury, and
the deposition of August the 26th, 1998.
A. Correct.
Q. So you're saying that that information is accurate, and it is
truthful?
A. Yes.
Q. Well, thank you. That--that will save us a little bit of time,
but certainly we will ask you some of that information also.
At some point, you were transferred to the Pentagon, to the
Department of Defense. When did that occur?
A. I found out I was being transferred on April 5th, 1996.
Q. Did you want to go--
A. No.
Q. --to the Department of Defense? Did you have a discussion with
the President about this?
A. Yes.
Q. What was your reaction to being transferred?
A. I started to cry.
Q. Did you talk to anyone else at the White House other than the
President about the transfer at that time?
A. Yes.
Q. And who--who was that?
A. I spoke with several people. I--I can't--I know I--I spoke with,
uh, Jocelyn about it. I spoke with people with whom I was friendly at
the White House. I spoke to Betty, Nancy Hernreich, several people.
Q. Did you--did you find out why you were being transferred?
A. Uh, I was told why I was being transferred by Mr. Keating on
Friday, the 5th of April.
Q. And that was why?
A. Uh, he said that the--the Office of Administration, I think it
was, was not pleased with the way the correspondence was being handled,
and they were, quote-unquote, ``blowing up'' the Correspondence Office,
and that I was being transferred and it had nothing to do with my work.
Q. Did you have any understanding that it might have been other
reasons that you were being moved?
A. Not at that point.
Q. Did the--what did the President say about your transfer at that
point?
A. He thought it had something to do with our relationship.
Q. What else did he say about--about your transfer, if anything?
Did he give you any assurances that you might be back, or--
A. Yes.
Q. Back after what time period?
A. He promised me he'd bring me back after the election.
Q. So this was, again, in early 19--April of 1996, and he was up
for reelection--
A. Yes.
Q. --in November of 1996.
A. Yes.
Q. Did you attach any significance to being transferred away before
the election and then him assuring you he would bring you back after
the election? Did you attach any significance to the election and your
having to leave?
A. Emotional significance, yes.
Q. Your emotion? I'm--I'm not sure I follow you. You were--
A. Well, yes, I attached significance to it.
Q. And that was emotional--
A. But that was emotional.
Q. But the reason you both felt--again, I'm not trying to put words
in your mouth, but you both felt you were leaving until after the
election was because of your relationship and perhaps people finding
out?
A. No. I--I--first, I can only speak for myself. I mean, I, uh, my
understanding initially was that it was, um, for work-related issues,
but not my work, and I came to understand later that it was having to
do with my relationship with the President.
Q. Okay. Did, uh, you have a conversation--and it may be the same
one with the President on April the 12th--which determined that Ms.
Lieberman maybe spearheaded your transfer because you were paying too
much attention--you were all--you were both paying too much attention
to each other and she was worried that it was close to election time?
And I think you've testified to that, haven't you?
A. Yes.
Q. Okay, good. You started, uh, with the Department of Defense at
the Pentagon in mid-April, April the 17th, 1996?
A. Yes.
Q. What did you do there?
A. I was the confidential assistant to Mr. Bacon, who is the
Assistant Secretary of Defense for Public Affairs.
Q. Did, uh--after the 1996 election, did you still want to go back
to the White House?
A. Yes.
Q. You had not fallen in love with the job at the Pentagon that
much?
A. No.
Q. Was that, in fact, a frustrating period of time?
A. Yes. No offense to Mr. Bacon, of course.
Q. I understand; I'm sure he would take none.
I would like--I don't think it's been mentioned, but you helped in
preparing a chart which we have listed as one of our exhibits, ML
Number 2, which I assume might have a different number for now, but
it's a chart of contacts--
A. Right.
Q. --that you had with the President. And do you have a copy of
that chart? It--
[Witness conferring with counsel.]
MR. BRYANT: In the--yes, in the record, it's at page 1251.
MR. BURTON: May we have an extra copy for counsel, please?
BY MR. BRYANT:
Q. Have you had occasion to review this document?
A. Yes.
Q. And very--very simply, I would like for you to, uh, if you can,
to affirm that document as an accurate representation and a truthful
representation of all the contacts that you had with the President from
approximately August 9th, 1995 until January of 1998. It includes in-
person contacts, telephone calls, gifts and notes exchanged, I think
are the categories.
A. Yes. I believe there might have been one or two changes that
were made and noted in the grand jury or my deposition, and I adopt
those as well.
MR. BRYANT: Okay, good.
I am not going to at this point make her--the information she
adopts and affirms exhibits to this deposition. I don't want to clutter
it any more unless someone wants to make this an exhibit in terms of
your deposition testimony, your grand jury testimony, and now the
charts that you have affirmed, so I just want you to specifically
affirm it but not make it an exhibit, because it's already a part of
the record.
MR. CACHERIS: We defer to the White House.
MS. SELIGMAN: I just wanted to make clear on the record, then, what
the app. or sub-cite is of anything we're adopting so that we all know
what particular pages it is.
MR. BRYANT: Okay. And that, again, was, I think, page 1251 of--
right, of the record.
SENATOR LEAHY: I don't--I don't understand.
MS. MILLS: Can you cite the ending page?
SENATOR DeWINE: Counsel, is that where this appears?
MR. BRYANT: It appears in the record, uh--
SENATOR DeWINE: You need to designate also if you're talking about
the Senate record or--I think at this point we'll go off the record.
THE VIDEOGRAPHER: We're going off the record at 10:01 a.m.
[Recess.]
THE VIDEOGRAPHER: We are going back on the record at 10:11 a.m.
SENATOR DeWINE: Let me--we're now back on the record.
Let me advise counsel, the Managers, that they have used 25 minutes
so far.
You may resume questioning, and if you could begin by identifying
the exhibit for the record, please.
MR. BRYANT: Tom, let me also for clarification purposes--Tom, on
the referral to the Senate record, you're saying that the appendices
are numbered 3, but the numbers are the same. The page numbers are the
same.
MR. GRIFFITH: Yes.
MR. BRYANT: And the supplemental materials are your Volume IV, but,
again, the pages are the same.
MR. GRIFFITH: That's our understanding.
MR. BRYANT: Okay. For the record, then, using the Senate volumes,
if this is an appendices, Volume III, and the chart that we just
alluded to before the break is--appears at pages 116 through 126 of the
Senate record, Volume III.
BY MR. BRYANT:
Q. Ms. Lewinsky, did you tell a number of people in varying details
about your relationship with the President?
A. Yes.
Q. You tell us who did you tell?
A. Catherine Allday Davis, Neysa Deman Erbland, Natalie Ungvari,
Ashley Raines, Linda Tripp, Dr. Kathy Estep, Dr. Irene Kassorla, Andy
Bleiler, my mom, my aunt. Who else has been subpoenaed?
Q. Okay. Let me suggest Dale--did you mention Dale Young?
A. Dale Young. I'm sorry.
Q. Thank you.
Now, in the floor presentation, Mr. Craig, who was one of--is one
of the counsel for the President, adopted an argument that had been
raised in some of the previous hearings, uh, and he adopted this
argument in the Senate that--that you have--have or had, I think, both
past and present, the incentive to not tell the truth about how the
President--this relationship with him because you wanted to avoid--and
again, I use the quote from Mr. Craig's argument--the demeaning nature
of providing wholly un-reciprocated sex.
Did, uh--did you lie before the grand jury and to your friends
about the nature of that relationship with the President--
A. No.
Q. --so as to avoid what Mr. Craig says? Okay, and I'll break it
down.
SENATOR DeWINE: Counsel, do you want to just--just rephrase the
question?
MR. BRYANT: Okay. We'll break it down into two questions.
BY MR. BRYANT:
Q. Did you not tell the truth before the grand jury as to how the
President touched you because of what Mr. Craig alleges as the
demeaning nature of the wholly un-reciprocated sex?
MR. CACHERIS: Well, that--may I register an objection, gentlemen?
This witness is not here to comment on what some lawyer said on the
floor of the Senate. He can ask her direct questions. She will answer
them, but what Mr. Craig said or didn't say would have happened after
her grand jury testimony. So it's totally inappropriate that he's--
SENATOR DeWINE: Mr. Bryant, why don't you--
MR. CACHERIS: --marrying those two concepts. We object.
SENATOR DeWINE: Mr. Bryant, why don't you just rephrase the
question?
MR. BRYANT: Well, we--we have had presented on behalf of the
President a defense, an incentive, a reason why she would not tell the
truth, and I think she should have the opportunity to respond to that--
that allegation.
MR. CACHERIS: We--we don't, uh--
SENATOR LEAHY: Ask her a direct question.
MR. CACHERIS: We welcome you asking her if her testimony was
truthful, and she will tell you that it is truthful. We don't have any
problem with that. We don't have any brief with what the White House
did or didn't do through their counsel. That's their business. We don't
represent the White House.
MS. SELIGMAN: So, for the record, I'd like to object to the
characterization of what Mr. Craig says, which obviously speaks for
itself, but I certainly don't want my silence to be construed as
accepting the Manager's characterization of it.
SENATOR DeWINE: Mr. Bryant, why don't you--why don't you ask the
question?
MR. BRYANT: Okay.
SENATOR DeWINE: Go ahead and ask your question.
BY MR. BRYANT:
Q. In regard to your testimony at the grand jury about your--your
relationship and the physical contact that you have said occurred in
some of these, uh, visits with the President, it has been characterized
in a way that would give you an excuse not to tell the truth. Did you
tell the truth in the grand jury about what actually happened and how
the President touched--the President touched you?
A. Yes.
Q. And did you likewise tell the truth to your friends in
connection with the same matters?
A. Yes.
Q. Did your relationship with the President involve giving gifts,
exchanging gifts?
A. Yes.
Q. And you mentioned earlier that in reference to this chart that
it was, uh, subject to certain corrections you've made in later
testimony. It was an accurate representation or an accurate compilation
of the gifts that, uh, you gave the President and the President gave
you. Is that correct?
A. Yes.
Q. Approximately how many gifts did you give the President?
A. I believe I've testified to that number. I don't recall right
now.
Q. About 30? Would that be--
A. If that's what I testified to, then I accept that.
Q. That's the number I have, and do you recall how many gifts
approximately the President gave you?
A. It would be the same situation.
Q. Okay, and you've previously testified in your grand jury that he
gave you about 18 gifts.
A. I accept that.
Q. Okay, good. What types of gifts did you give the President?
A. They varied. I think they're listed on this chart, and I've
testified to them.
Q. Okay, and--
MR. CACHERIS: Do you want her to read the list that's on this
chart?
MR. BRYANT: No. I was just, again, looking for just a--I think
maybe a little broader category, but that's--that's okay. That's an
acceptable answer there.
BY MR. BRYANT:
Q. After leaving the White House and going to the Pentagon, did you
continue to visit the President?
A. Yes.
Q. How would you--how would you be transported from the Pentagon
over to the White House? How did you get there?
A. I drove or took a taxi.
Q. Do you have your own car?
A. No.
Q. Whose--whose car would you drive?
A. Either my mom's or my brother's.
Q. So you did have access to a vehicle?
A. Correct.
Q. Okay. How were these meetings arranged when you would want to go
from the Pentagon to the White House? How did--how did these--how were
they set up? Did you get an appointment?
[The witness conferring with counsel.]
SENATOR DeWINE: Counsel--if you have to ask counsel, you can stop
and ask us--
THE WITNESS: Okay.
SENATOR DeWINE: --to do that.
BY MR. BRYANT:
Q. How were these meetings arranged?
A. Through Ms. Currie.
Q. Would--would you call her and set the meeting up, or would she
call you on behalf of the President and set the meeting up?
A. It varied.
Q. Both--both situations occurred?
A. Correct.
Q. Now, Ms. Currie is the President's--that's Betty Currie, we're
talking about, the President's secretary?
A. Yes.
Q. Why was this done? Why was that procedure used?
A. It was my understanding that Ms. Currie took care of the
President's guests who were coming to see him, making those
arrangements.
Q. Was, uh--was this--were these visits done sort of off the
record, so to speak, so it wouldn't necessarily be a record?
A. I believe so.
Q. In other words, you wouldn't be shown on Betty Currie's calendar
or schedule book for the President?
A. I don't know.
Q. Did--who suggested this type of arrangement for setting up
meetings?
A. I believe the President did.
Q. During this time that you were at the Department of Defense at
the Pentagon, uh, how--how was it working out about you being
transferred back to the White House? How was the job situation coming?
A. Well, I waited until after the election and then spoke with the
President about it on several occasions.
Q. And what would he say in response?
A. Various things; ``I'm working on it,'' usually.
Q. In July, uh, particularly around the--the 3rd and 4th of July,
there--there--you wrote the President a letter, I think.
A. Which year?
Q. July of '90--it would have been '97 that you wrote the President
a letter expressing some frustrations about the job situation in terms
of--is that, uh--can you tell us about that?
A. Yes. I had had a--well, I guess I was--I know I've testified
about this, I mean, in the grand jury, but I was feeling at that point
that I was getting the runaround on being brought back to the White
House. So I sent a letter to the President that was probably the
harshest I had sent.
Q. Did you get a response?
A. Sort of.
Q. Would you explain?
A. Um, Betty called me and told me to come to the White House the
next morning, on July 4th, at 9:00 a.m.
Q. And what happened when you--I assume you went to the White House
on July the 4th. What happened?
A. I know I--I--do you have a specific question? I know I
testified, I mean, extensively about this whole day, that whole--
Q. Well, in regards to--let's start with the job.
A. Well, I started crying. We were in the back office and, um--and
when the subject matter came up, the President was upset with me and
then I began to cry. So--
Q. Did he encourage you about you coming back? Did he make a
promise or commitment to you that he would make sure you came back to
work at the White House?
A. I don't know that he reaffirmed his promise or commitment. I
remember leaving that day thinking that, as usual, he was going to work
on it and had a renewed sense of hope.
Q. Did he comment on your letter, the tone of your letter?
A. Yes.
Q. What did he say?
A. He was upset with me and told me it was illegal to threaten the
President of the United States.
Q. Did you intend the letter to be interpreted that way?
A. No.
Q. Did you explain why you wrote the letter to him about reminding
him that you were a good girl and you left the White House? Did you
have that type of conversation?
A. Yes. That's what made me start to cry.
Q. Did you, uh--did you ever explain to him that you didn't intend
to threaten him?
A. I believe so.
Q. What was the intent of the letter?
A. First, I felt the letter was going to him as a man and not as
President of the United States. Um, second, I think I could see how he
could interpret it as a threat, but my intention was to sort of remind
him that I had been waiting patiently and what I considered was being a
good girl, about having been transferred.
Q. And the threat we're talking about here would not have been
interpreted as a threat to do physical injury or bodily injury to him.
It was to expose your relationship to the--to your parents--
A. Correct.
Q. --explain to them why you were not going back to the White
House--
A. Correct.
Q. --after the election?
And certainly the President did not encourage you to expose that
relationship, did he?
A. I don't believe he made any comment about it at that point.
Q. His only comment about the so-called threat was that it's a---
it's--you can't do that, it's against the law to threaten the
President?
A. Exactly.
Q. That meeting turned into--I guess you've testified that that
meeting did turn into a more positive meeting toward the end. It was
not all emotional and accusations being made?
A. Correct.
Q. At some point, uh--well, let me--let me back up and ask this.
There was a subsequent meeting on July the 14th, and I believe the
President had been out of town and this was the follow-up meeting to
the July 4th meeting where you had originally discussed the possibility
of a newspaper reporter or a magazine writer, I believe, writing a
story about Ms. Willey?
A. Correct.
Q. And you, uh--did you have any instructions from the President,
from either of these meetings, about doing something for the President,
specifically about having Ms. Tripp call White House counsel--
A. I don't know--
Q. --Mr. Lindsey?
A. --that I'd call them instructions.
Q. Okay. What did he tell you? I don't want to mischaracterize.
A. He asked me if I would try to have Ms. Tripp contact Mr.
Lindsey.
Q. Okay, and if you were to be successful in doing that, what were
you supposed to do? Were you supposed to contact Ms. Currie, his
secretary?
A. Yes.
Q. And what were you supposed to tell her?
A. In an innocuous way that I had been able to convey that to Ms.
Tripp or get her to do that.
Q. Now, in--at some point in October of that year, 1997, did your
job focus change?
A. Yes.
Q. And how was that? What were you doing?
A. Uh, it really changed on October 6th, 1997, as a result of a
conversation with Linda Tripp.
Q. Uh, in that, as I understand, you sort of got secondhand
information that you were probably never going back to work at the
White House.
A. Correct.
Q. Did you understand what that meant? Did you accept that? And I
guess why would you accept it at that point? Why would you give up on
the White House?
MR. CACHERIS: Those are three questions, Mr. Bryant. Will you--
would you break it down, please?
MR. BRYANT: Well, yeah, it's true.
BY MR. BRYANT:
Q. Do you understand? I guess I'm trying to clarify.
A. Not really. I'm sorry.
Q. Why would you accept at that point in October that you were
never going back to the White House?
A. I don't really remember, I mean, what--what--what was going
through my mind at that point as to--to answer that question. Is that--
Q. Okay.
A. I'm sorry.
Q. Certainly, if you don't remember, that's a--that's a good
answer.
A. Okay.
Q. So you don't recall anything had really changed other than you
had heard secondhand that you weren't going to go back. You have no
independent recollection of anything else other than what somebody told
you that would have changed--
A. My recollection is--
Q. --changed your focus?
A. --that it was this--it was this conversation, what Linda Tripp
told me from whom this information was coming, the way it was relayed
to me that--that shifted everything that day.
Q. And you didn't feel it was necessary to go back to the President
and perhaps confront the President and say, ``why am I not coming back,
I want to come back?''
A. I mean, I had a discussion with the President, but I had made a
decision from that based on that information, and I guess my--my
experience of it coming up on a year from the election, having not been
brought back, that it probably wasn't going to happen.
Q. But you--you did call the President about that time and then--
but the focus had been changed toward perhaps a job in another
location.
A. Yes and no. I didn't call him, but I, um--
Q. You called Betty--
A. --but we did have a discussion about that.
Q. You called Betty Currie, his secretary.
A. Yes.
Q. Okay, and then through her, he contacted you and you had a
discussion?
A. Yes.
Q. And what did you tell him at that time about the job?
A. I believe I testified to that, so that my testimony is probably
more accurate. The gist of it was, um, that I wanted to move to New
York and that I was accepting I wasn't going to be able to come back to
the White House, and I asked for his help.
Q. Did you bring up Vernon Jordan's name as perhaps somebody that
could help you?
A. It's possible it was in that conversation.
Q. What was the President's comments back to you about your
deciding to go to New York?
A. I don't remember his exact comments. He was accepting of the
concept.
Q. In regards to your--your, uh, decision to search for a job in
New York, in your comments to the President, did he ever tell you that
that was good, that perhaps the Jones lawyers could not easily find you
in New York?
A. I'm sorry. I don't--I--I--
MR. CACHERIS: Excuse me again, Mr. Bryant. That's a compound
question. He could--she could answer it was good, and then she could
answer maybe the Jones lawyer couldn't get her, but I think you'd want
an answer to each question.
BY MR. BRYANT:
Q. Okay. Let me ask it this way. There has been some reference to
that fact throughout the proceedings, and I recall seeing something
somewhere in your--your testimony that you said it or he said it. Do
you recall anything being said about you going to Washington--to New
York and that the effect of that might be that you would be more
difficult to find?
A. I believe that might have been mentioned briefly on the 28th of
December, but not as a reason to go to New York, but as a possible
outcome of being there. Does that--does that make sense?
Q. It does.
A. Okay.
Q. What, uh--what would have been the context of that? And we're
jumping ahead to December the 28th, but what would have been the
context of that particular conversation about the New York and being
perhaps--the result being it might be difficult to find you, or more
difficult? What was the context?
A. Um, I--I--if I remember correctly, it came sort of at the tail-
end of a very short discussion we had about the Jones case.
Q. At this November the 11th meeting, did the President ask you to
prepare a list, sort of a wish list for jobs?
A. I'm sorry. Which--
Q. I'm sorry. Did I say October? We're back to the October the 11th
meeting. Did the President ask you to prepare a wish list?
A. Okay. We haven't gone to the October 11th meeting yet. I--I
haven't said anything about that meeting yet.
Q. Okay.
A. The phone call was on the 9th.
Q. Okay, and you subsequently had a meeting, then, with the
President on the 11th?
A. Correct.
Q. Face--face-to-face meeting?
A. Correct.
Q. And at that meeting, did he suggest you give him a wish list or
Betty Currie a wish list?
A. Yes.
Q. Again, I asked a compound question there.
Who did he suggest you give the wish list to?
MR. CACHERIS: We're getting used to that.
MR. BRYANT: I'm getting good. I'm making my own objections now.
[Laughter.]
THE WITNESS: Um, we sustain those. No, I'm sorry.
[Laughter.]
MR. BRYANT: I can do that, too. I'll be doing that in a minute.
Overruled. Okay.
THE WITNESS: Um, I--I believe he--he said I should get him a list,
and the implication was through Betty.
BY MR. BRYANT:
Q. And obviously you prepared a list of--
A. Correct.
Q. --the people you'd like to work for in New York City.
A. Correct.
Q. And you sent that list--
A. Yes.
Q. --to Betty Currie or to the President?
A. I sent it to Ms. Currie.
Q. And also during this time--and I'm probably going to speed this
up a little bit, but, uh, you did interview for the job at the United
Nations?
A. Yes.
Q. And, uh--and through a process of several months there, or weeks
at least, you did--made an offer to take a job at the United Nations
and eventually declined it. Is that correct?
A. Correct.
Q. Did you in early November have the occasion to meet with Vernon
Jordan about the job situation?
A. Yes.
Q. And how did you learn about that meeting?
A. I believe I asked Ms. Currie to check on the status of--I guess
of finding out if I could have this meeting, and then she let me--she
let me know to call Mr. Jordan's secretary?
Q. And you set up an appointment with Mr. Jordan, or did she, Ms.
Currie, do that?
A. No. I set up an appointment. I think that was after a phone--
well, I guess I don't--I don't know that, so sorry.
Q. But that appointment was November the 5th?
A. Yes.
Q. Prior to going to the meeting with Vernon Jordan, did you tell
the President that you had a meeting with Mr. Jordan?
A. I don't think so. I don't remember.
Q. Did you carry any documents or any papers with you to the
meeting with Mr. Jordan?
A. Yes.
Q. What were those?
A. My resume and a list of public relations firms in New York.
Q. Did Mr. Jordan ask you why you were there?
A. Yes.
Q. And what did you say?
A. I was hoping to move to New York and that he could assist me in
securing a job there.
Q. Did he ask you why you wanted to leave Washington?
A. Yes.
Q. And what was your answer?
A. I gave him the vanilla story of, um, that I--I think I--I don't
remember exactly what I said. I--I believe I've testified to this. I
think it was something about wanting to get out of Washington.
Q. The vanilla story. You mean sort of an innocuous set of reasons,
not really the true reasons you wanted to leave?
A. Yes.
Q. And what were the true reasons you wanted to leave?
A. Because I couldn't go back to the White House.
Q. Did--did you think Mr. Jordan accepted--did you think he would
accept that vanilla story, or did you feel like he understood the real
story?
A. No, I felt he accepted it.
Q. Did Mr. Jordan tell you during this meeting that he had already
spoken with the President?
A. It was--I believe so.
Q. And that you had come highly recommended, I think?
A. Yes.
Q. Did he, Mr. Jordan, review your list of job preferences and
suggest anything?
A. Yes.
Q. And what did he suggest?
A. He said the names of the--he looked at the list of public
relations firms and I think sort of said, ``oh, I've heard of them, I
haven't heard of these people, have you heard of so and so,'' that I
hadn't heard of.
Q. Your meeting lasted about 20 minutes?
A. If that's what I've testified to, then I accept that.
Q. It is, or close to it. I know this is an approximation, but
thereabouts. You weren't there all day.
A. I had--well, I don't--I don't remember how long it was right
now. I know I've testified to that. So if I said 20 minutes, then--
Q. Did you have a conversation with the President on--about a week
later on November the 12th and by telephone?
A. Yes.
Q. And did you indicate there you had spoken with Mr. Jordan about
a job?
A. Yes.
Q. After you met with Mr. Jordan, did you--did you have an
impression that you would get, uh--get a job, get favorable results in
your job search?
A. Yes.
Q. Did anything favorable happen to--in your job search from that
November the 5th, 1997, meeting until Thanksgiving?
A. No, but I believe Mr. Jordan was out of town for a week or two.
Q. During the weeks after this November the 5th interview, did you
try to contact Mr. Jordan?
A. Yes.
Q. How?
A. First, I sent him a thank-you note for the initial meeting, and
I believe I placed some phone calls right before Thanksgiving--maybe a
phone call. I don't remember if it was more than one.
Q. What--what happened with respect to the job search, uh, through
there, through Thanksgiving? Was there anything? I mean, I know he--you
said he was out of town, but did anything, to your knowledge, occur?
Could you see any results up to Thanksgiving?
A. From my meeting with Mr. Jordan?
Q. Yes.
A. No.
Q. Did you contact Betty Currie after you received no response from
Mr. Jordan?
A. Yes.
Q. And did she page you? I think you were in Los Angeles at the
time.
A. Correct.
Q. Okay. What--what did she tell you as a result of that telephone
call?
A. She asked me to place a call to Mr. Jordan, which I did.
Q. And this would have been, again, around November the 26th,
shortly--well, around Thanksgiving?
A. It was before Thanksgiving.
Q. And I assume you found Mr. Jordan.
A. Yes.
Q. And what did he tell you?
A. That he was working on it.
Q. Did he tell you to call him back?
A. Yes.
Q. Did you indeed call him back
A. I didn't actually get ahold of him; he was out-of-town that day.
I think it was December 5th.
Q. Did you try to meet with the President during this time?
A. Yes.
Q. How did you do that?
A. I was a pest. I sent a note to Ms. Currie and asked her to pass
it along to the President, requesting that I meet with him.
Q. Were you successful in having a meeting as a result of those
efforts?
A. I don't know if it was a result of those efforts, but yes, I
ended up having a meeting with the President.
Q. And when would that have been; what day?
A. On the 6th of December 1997.
Q. Again you are going through Betty Currie; is that, again, the
standard procedure at that time?
A. Yes.
Q. Did you go--I think you spoke also perhaps to Betty Currie on
December the 5th, the day before the meeting--
A. Yes.
Q. --and this was something about attending the President's speech.
Was that when that occurred--or the radio address, or something? Does
that ring any bells?
A. No.
Q. Did--you did attend the Christmas party that day--
A. Yes.
Q. --and the White House. And you saw the President?
A. Yes.
Q. Just socially, speak to him, and that's it?
A. Yes.
Q. Picture, handshaking, and that?
A. [Nodding head.]
Q. Okay. That's a yes?
A. Yes. Sorry.
Q. Prior to December 6th, 1997, had you purchased a Christmas gift
for the President?
A. Yes.
Q. Which was?
A. An antique standing cigar holder.
Q. And had you purchased any other additional gifts for him?
A. Yes.
Q. And what were those?
A. Uh, a Starbucks mug that said ``Santa Monica''; a necktie that I
got in London; a little box--I call it a ``chochki''--from, uh--and an
antique book on Theodore Roosevelt.
Q. Was it your intention to, to carry those Christmas presents to
the President home that Saturday, December the 6th?
A. If I were to have a meeting with him, yes.
Q. Did you attempt to have a meeting?
A. Yes.
Q. Did you go through Betty Currie?
A. Yes. I sent her the letter to, to give to the President.
Q. And when you went to the White House that day, you also
attempted to, to have the meeting through calling Betty Currie and
telephoning her; I believe you had to go to--
A. Which day? I'm sorry.
Q. On the 6th.
A. No.
Q. The Saturday.
A. [No response.]
Q. No?
A. I--I attempted to give the presents to Betty, but I didn't call
and attempt to have a meeting there--well, I guess I called in the
morning, so that's not true--I'm sorry. Yes, I called Ms. Currie in the
morning trying to see if I could see the President and apologize.
Q. And--were you--did you see the President, then, on the 6th?
A. Yes, I did.
Q. Tell us about that meeting--that was a long--was that, uh--did
you have a telephone conversation with him that day also?
A. Yes.
Q. And that was the long telephone conversation?
A. It--it was.
Q. Okay. I think there has been some indication it may have been 56
minutes, something approximating an hour-long conversation; does that
sound right?
A. Right. That would--that might include some conversation time
with Ms. Currie as well.
Q. Okay. Was he interrupted by Ms. Currie--could you tell--did he
have to take a break from the telephone call to talk to Ms. Currie, or
do you recall any, any--
A. I don't recall that.
Q. --do you recall any breaks to talk to anybody else?
A. I don't recall that. Doesn't mean it didn't happen; I just don't
remember it.
Q. What else did you--did you arrange in that telephone
conversation, or did he invite you in that telephone conversation to
come to the White House that day?
A. Yes, he did.
Q. What happened during, during that conversation in terms of--I
understand that it was again an emotional day, some sort of a word
fight; is that right?
A. Yes.
Q. Could you tell me--he was, uh--again, to perhaps save some
time--he was angry about an earlier incident, and, uh, he felt like you
were intruding on his lawyer time?
A. Uh, he was upset that I hadn't accepted that he just couldn't
see me that day.
Q. And what was your response to that?
A. Probably not positive. Uh, that's why it was a fight.
Q. Again, I want to be careful that I don't put words in your
mouth, but you were dealing with this relationship from an emotional
standpoint of wanting to spend time with him--
A. Yes.
Q. --not as President, but as a man?
A. Correct.
Q. And this was at a point when you didn't feel like you were
spending enough time with him?
A. Correct.
Q. And he obviously felt he had to do other things, too, talk to
lawyers and do those kinds of things--be the President--is that right?
A. Yes.
Q. Okay. Now, was some of this discussion that we term ``the
fight,'' was that over the telephone?
A. Yes. It was all over the telephone.
Q. So by the time you arrived and had the face-to-face meeting with
him, that was over?
A. Correct.
Q. Was that during the time that you exchanged--exchanged some of
the Christmas presents with him?
A. In--in the meeting?
Q. Yes.
A. Yes. I gave him my Christmas presents.
Q. Did you discuss the job search with him also at that time?
A. I believe I mentioned it.
Q. Did you tell him that, uh, your job search with Mr. Jordan was
not going well?
A. I don't know if I used those words. I don't, I don't remember
exactly--
Q. If your grand jury testimony said yes--I mean, words to that
effect--that would--you could have used those words if they're in your
grand jury--
A. If my grand jury testimony says that--if that's what I said in
my grand jury testimony, then I accept that.
Q. I'm not trying to--I'm not trying to trick you.
A. Okay.
Q. Did he make any comment to you about what he might do to aid in
your job search at that time, if you recall?
A. I think he--I think he said, oh, let me see about it, let me see
what I can do--his usual.
Q. Did, uh, did the President say anything to you at that time
about your name appearing on a witness list in the Paula Jones case?
A. No.
Q. Did you later learn that your name had appeared on such a list?
A. Yes.
Q. And did you later learn that that witness list had been faxed to
the White House--to the President's lawyers on December the 5th?
A. Much later, as in last year.
Q. Okay. Yes--that's what I mean--later.
A. I, I mean--
Q. Yes.
A. --post this investigation.
Q. Okay. All right. Let's go forward another week or so to December
the 11th and a lunch that you had with Vernon Jordan, I believe, in his
office.
A. Yes.
Q. How did--how was that meeting set up.
A. Through his secretary.
Q. Did you instigate that, or did he call through his secretary?
A. I don't remember.
Q. What was the purpose of that meeting?
A. Uh, it was to discuss my job situation.
Q. And what, what--how was that discussed?
A. Uh, Mr. Jordan gave me a list of three names and suggested that
I contact these people in a letter that I should cc him on, and that's
what I did.
Q. Did he ask you to copy him on the letters that you sent out?
A. Yes.
Q. During this meeting, did he make any comments about your status
as a friend of the President?
A. Yes.
Q. What--what did he say?
A. In one of his remarks, he said something about me being a friend
of the President.
Q. And did you respond?
A. Yes.
Q. How?
A. I said that I didn't, uh--I think I--my grand jury testimony, I
know I talked about this, so it's probably more accurate. My memory
right now is I said something about, uh, seeing him more as, uh, a man
than as a President, and I treated him accordingly.
Q. Did you express your frustration to Mr. Jordan with, uh, with
the President?
A. I expressed that sometimes I had frustrations with him, yes.
Q. And what was his response to you about, uh--after you talked
about the President?
A. Uh, he sort of jokingly said to me, You know what your problem
is, and don't deny it--you're in love with him. But it was a sort of
light-hearted nature.
Q. Did you--did you have a response to that?
A. I probably blushed or giggled or something.
Q. Do you still have feelings for the President?
A. I have mixed feelings.
Q. What, uh--maybe you could tell us a little bit more about what
those mixed feelings are.
A. I think what you need to know is that my grand jury testimony is
truthful irrespective of whatever those mixed feelings are in my
testimony today.
Q. I know in your grand jury you mentioned some of your feelings
that you felt after he spoke publicly about the relationship, but let
me ask you more about the positive--you said there were mixed feelings.
What about--do you still, uh, respect the President, still admire the
President?
A. Yes.
Q. Do you still appreciate what he is doing for this country as the
President?
A. Yes.
Q. Sometime back in December of 1997, in the morning of December
the 17th, did you receive a call from the President?
A. Yes.
Q. What was the purpose of that call? What did you talk about?
A. It was threefold--first, to tell me that Ms. Currie's brother
had been killed in a car accident; second, to tell me that my name was
on a witness list for the Paula Jones case; and thirdly, he mentioned
the Christmas present he had for me.
Q. This telephone call was somewhere in the early morning hours of
2 o'clock to 2:30.
A. Correct.
Q. Did it surprise you that he called you so late?
A. No.
Q. Was this your first notice of your name being on the Paula Jones
witness list?
A. Yes.
Q. I realize he, he commented about some other things, but I do
want to focus on the witness list.
A. Okay.
Q. Did he say anything to you about how he felt concerning this
witness list?
A. He said it broke his heart that, well, that my name was on the
witness list.
Can I take a break, please? I'm sorry.
SENATOR DeWINE: Sure, sure. We'll take a 5-minute break at this
point.
THE VIDEOGRAPHER: This marks the end of Videotape Number 1 in the
deposition of Monica S. Lewinsky. We are going off the record at 10:56
a.m.
[Recess.]
THE VIDEOGRAPHER: This marks the beginning of Videotape Number 2 in
the deposition of Monica S. Lewinsky. The time is 11:10 a.m.
SENATOR DeWINE: We are now back on the record.
I will advise the House Managers that they have used one hour and 8
minutes.
Mr. Bryant, you may proceed.
MR. BRYANT: Thank you.
By MR. BRYANT:
Q. Did--did we get your response? We were talking about the
discussion you were having with the President over the telephone, early
morning of the December 17th phone call, and he had, uh, mentioned that
it broke his heart that you were on that list.
A. Correct.
Q. And I think you were about to comment on that further, and then
you need a break.
A. No.
Q. No.
A. I just wanted to be able to focus--I know this is an important
date, so I felt I need a few moments to be able to focus on it.
Q. And you're comfortable now with that, with your--you are ready
to talk about that?
A. Comfortable, I don't know, but I'm ready to talk about.
Q. Well, I mean comfortable that you can focus on it.
A. Yes, sir.
Q. Good. Now, with this discussion of the fact that your name
appeared as a witness, had you--had you been asleep that night when the
phone rang?
A. Yes.
Q. So were you wide awake by this point? It's the President calling
you, so I guess you're--you wake up.
A. I wouldn't say wide awake.
Q. He expressed to you that your name--you know, again, you talked
about some other things--but he told you your name was on the list.
A. Correct.
Q. What was your reaction to that?
A. I was scared.
Q. What other discussion did you have in regard to the fact that
your name was on the list? You were scared; he was disappointed, or it
broke his heart. What other discussion did you have?
A. Uh, I believe he said that, uh--and these are not necessarily
direct quotes, but to the best of my memory, that he said something
about that, uh, just because my name was on the list didn't necessarily
mean I'd be subpoenaed; and at some point, I asked him what I should do
if I received a subpoena. He said I should, uh, I should let Ms. Currie
know. Uh--
Q. Did he say anything about an affidavit?
A. Yes.
Q. What did he say?
A. He said that, uh, that I could possibly file an affidavit if I--
if I were subpoenaed, that I could possibly file an affidavit maybe to
avoid being deposed.
Q. How did he tell you you would avoid being deposed by filing an
affidavit?
A. I don't think he did.
Q. You just accepted that statement?
A. [Nodding head.]
Q. Yes?
A. Yes, yes. Sorry.
Q. Are you, uh--strike that. Did he make any representation to you
about what you could say in that affidavit or--
A. No.
Q. What did you understand you would be saying in that affidavit to
avoid testifying?
A. Uh, I believe I've testified to this in the grand jury. To the
best of my recollection, it was, uh--to my mind came--it was a range of
things. I mean, it could either be, uh, something innocuous or could go
as far as having to deny the relationship. Not being a lawyer nor
having gone to law school, I thought it could be anything.
Q. Did he at that point suggest one version or the other version?
A. No. I didn't even mention that, so there, there wasn't a further
discussion--there was no discussion of what would be in an affidavit.
Q. When you say, uh, it would be--it could have been something
where the relationship was denied, what was your thinking at that
point?
A. I--I--I think I don't understand what you're asking me. I'm
sorry.
Q. Well, based on prior relations with the President, the concocted
stories and those things like that, did this come to mind? Was there
some discussion about that, or did it come to your mind about these
stories--the cover stories?
A. Not in connection with the--not in connection with the
affidavit.
Q. How would--was there any discussion of how you would accomplish
preparing or filing an affidavit at that point?
A. No.
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.
Q. You--you have already mentioned that you were not a lawyer and
you had not been to law school, those kinds of things. Did, uh, did you
understand when you--the potential legal problems that you could have
caused yourself by allowing a false affidavit to be filed with the
court, in a court proceeding?
A. During what time--I mean--I--can you be--I'm sorry--
Q. At this point, I may ask it again at later points, but the night
of the telephone--
A. Are you--are you still referring to December 17th?
Q. The night of the phone call, he's suggesting you could file an
affidavit. Did you appreciate the implications of filing a false
affidavit with the court?
A. I don't think I necessarily thought at that point it would have
to be false, so, no, probably not. I don't--I don't remember having any
thoughts like that, so I imagine I would remember something like that,
and I don't, but--
Q. Did you know what an affidavit was?
A. Sort of.
Q. Of course, you're talking at that time by telephone to the
President, and he's--and he is a lawyer, and he taught law school--I
don't know--did you know that? Did you know he was a lawyer?
A. I--I think I knew it, but it wasn't something that was present
in my, in my thoughts, as in he's a lawyer, he's telling me, you know,
something.
Q. Did the, did the President ever tell you, caution you, that you
had to tell the truth in an affidavit?
A. Not that I recall.
Q. It would have been against his interest in that lawsuit for you
to have told the truth, would it not?
A. I'm not really comfortable--I mean, I can tell you what would
have been in my best interest, but I--
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. But had you testified truthfully, you would have had no--
certainly, no legal implications--it may have been embarrassing, but
you would have not had any legal problems, would you?
A. That's true.
Q. Did you discuss anything else that night in terms of--I would
draw your attention to the cover stories. I have alluded to that
earlier, but, uh, did you talk about cover story that night?
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 or bringing me papers.
Q. I think you've testified that you're sure he said that that
night. You are sure he said that that night?
A. Yes.
Q. Now, was that in connection with the affidavit?
A. I don't believe so, no.
Q. Why would he have told you you could always say that?
A. I don't know.
Mr. BURTON: Objection. You're asking her to speculate on someone
else's testimony.
MR. BRYANT: Let me make a point here. I've been very patient in
trying to get along, but as I alluded to earlier, and I said I am not
going to hold a hard line to this, but I don't think the President's--
the witness' lawyers ought to be objecting to this testimony. If
there's an objection here, it should come from the White House side,
nor should they be--
SENATOR DeWINE: Counsel, why don't you rephrase the question?
MR. BRYANT: Do we have a clear ruling on whether they can object?
SENATOR DeWINE: We'll go off the record for a moment.
THE VIDEOGRAPHER: We're going off the record at 11:20 a.m.
[Recess.]
THE VIDEOGRAPHER: We are going back on the record at 11:30 a.m.
SENATOR DeWINE: We are now back on the record.
It's our opinion that counsel for Ms. Lewinsky do have the right to
make objections. We would ask them to be as short and concise as
humanly possible. So we will now proceed.
Mr. Bryant?
MR. BRYANT: Thank you, Senator.
BY MR. BRYANT:
Q. Let's kind of bring this back together again, and I'll try to
ask sharper questions and avoid these objections.
We're at that point that we've got a telephone conversation in the
morning with you and the President, and he has among other things
mentioned to you that your name is on the Jones witness list. He has
also mentioned to you that perhaps you could file an affidavit to avoid
possible testifying in that case. Is that right?
A. Correct.
Q. And he has also, I think, now at the point that we were in our
questioning, referenced the cover story that you and he had had, that
perhaps you could say that you were coming to my office to deliver
papers or to see Betty Currie; is that right?
A. Correct. It was from the entire relationship, that story.
Q. Now, when he alluded to that cover story, was that instantly
familiar to you?
A. Yes.
Q. You knew what he was talking about?
A. Yes.
Q. And why was this familiar to you?
A. Because it was part of the pattern of the relationship.
Q. Had you actually had to use elements of this cover story in the
past?
A. I think so, yes.
Q. Did the President ever tell you what to say if anyone asked you
about telephone conversations that you had had with him?
A. Are we--are we still focused on December 17th?
Q. No, no.
A. Okay.
Q. It did not have to be that night. Did he ever?
A. If I could just--I--I'm pretty date-oriented, so if you could
just be more specific with the date. If we're staying on a date or
leaving that date, it would just help me. I'm sorry.
Q. Well, my question was phrased did he ever do that, but--
A. Okay.
Q. Well, I--I'm sorry. I'm playing guessing games with you. Was
there a conversation on March 29th of 1997 when the President told you
he thought perhaps his telephone conversations were being tapped or
taped--either way, or both--by a foreign embassy?
A. Yes.
Q. And was there some reference to some sort of cover story there
in the event that his line was tapped?
A. Yes.
Q. And what was that?
A. That--I think, if I remember it correctly, it was that we--that
he knew that we were sort of engaging in those types of conversations,
uh, knowing that someone was listening, so that it was not for the
purposes that it might have seemed.
Q. Did you find it a little strange that he would express concern
about possible eavesdropping and still persist in these calls to you?
A. I don't think phone calls of that nature occurred and happened
right after, or soon after that discussion. I think it was quite a few
months until that resumed.
Q. I think my question was more did you not find it a little
strange that he felt that perhaps his phone was being tapped and
conversations taped by a foreign embassy, and he--
A. I--I thought it was strange, but if--I mean, I wasn't going to
question what he was saying to me.
Q. But that he also continued to make the calls--you're saying he
didn't make any calls after that?
A. No. My understanding was it was referencing a certain type of
phone call, certain nature of phone call, uh, and those--
Q. Let me direct your attention back to a point I did not mention a
couple--a few days before the December--early December telephone call,
the lengthy telephone call from the President. We had talked about how
that was a heated conversation.
A. Correct.
Q. At--did at some point during that telephone conversation--did
the tone--did the President's tone change to a more receptive, friendly
conversation?
A. Yes.
Q. Do you know why that happened?
A. No, nor do I remember whose tone changed first. I mean, we made
up, so--
Q. Okay. Now let me go back again to the December 11th date--I'm
sorry--the 17th. This is the conversation in the morning. What else--
was there anything else you talked about in terms of--other than your
name being on the list and the affidavit and the cover story?
A. Yes. I had--I had had my own thoughts on why and how he should
settle the case, and I expressed those thoughts to him. And at some
point, he mentioned that he still had this Christmas present for me and
that maybe he would ask Mrs. Currie to come in that weekend, and I said
not to because she was obviously going to be in mourning because of her
brother.
Q. In--in that--in that relationship with the President, I think
you have expressed in your testimony somewhere that you weren't
necessarily jealous of those types of people like Kathleen Willey or
Paula Jones, and perhaps you didn't even believe those stories occurred
as--as they alleged.
A. That's correct. I don't--I don't know, jealous or not jealous. I
don't think I've testified to my feelings of jealousy, but the latter
half of the question is true.
Q. I--I saw it. I mean, it's not a major point. I thought I saw
that in your testimony, that particular word.
A. Okay. If I said that, then I--I don't.
Q. Was it your belief that the Paula Jones case was not a valid
lawsuit? Was that part of that discussion that night, or your strategy?
A. Uh, can I separate that--that into two questions?
Q. Any way, any way you want to.
A. Okay. I don't believe it was a valid lawsuit, and I don't think
whether I believed it was a valid lawsuit or not was the topic of the
conversation.
Q. Okay, that's a fair answer.
You believe the President's version of the Paula Jones incident?
A. Is that relevant to--
Q. I--I just asked you the question.
A. I don't believe Paula Jones' version of the story.
Q. Okay, good. That's a fair answer.
You have testified previously that you tried to maintain secrecy
regarding this relationship--and we're talking about obviously with the
President. Is that true?
A. Yes.
Q. And to preserve the secrecy and I guess advance this cover
story, you would bring papers to the President and always use Betty
Currie for the excuse for you to be WAVE'd in. Is that right?
A. Papers when I was working at the White House and Mrs. Currie
after I left the White House. So Mrs. Currie wasn't involved when I was
working at the White House.
Q. Were these papers you carried in to the President--were they--
were they business documents, or were they more personal papers from
you to him?
A. They--they weren't business documents.
Q. So, officially, you were not carrying in official papers?
A. Correct.
Q. You were carrying in personal papers that would not have
entitled you ordinarily to go see the President?
A. Correct.
Q. When--in this procedure where Betty Currie was always the one
that WAVE'd you in to the White House--and I--I don't know if the
people who may be watching this deposition, the Senators, understand
that the WAVES process is just the--to give the guards the okay for you
to come in. Is that a short synopsis?
A. I'm not really versed on--
Q. I'm not either. You know more than I do, probably, since you
worked there, but--
A. Well, I know you had to go, you had to type in a thing in at
WAVES, and now you have to give a Social Security, birth date, have to
show ID.
Q. Is there a record kept of that?
A. I believe so.
Q. Was it always Betty Currie that WAVE'd you in to the--access to
the White House? I'm talking about now after you left and went to work
at the Pentagon.
A. No.
Q. Other people did that?
A. There were other reasons that I came to the White House at
times.
Q. Did you ever ask the President if he would WAVE you in?
A. Yes.
Q. Did he ever do that?
A. No, not to my--not to my knowledge.
Q. Was there a reason? Did he express anything to you why he would
or would not?
A. Yes. He said that, uh--I believe he said something about that
there's a specific list made of people that he requests to come in
and--and there are people who have access to that list.
Q. So, obviously, he didn't want your name being on that list?
A. Correct.
Q. Now, some of those people--
A. I think--well, that's my understanding.
Q. Would some of those people be the people that worked outside his
office, Ms. Lieberman and those--those folks?
A. I--I believe so, but I'm not really sure.
Q. Did you not want those people to know that you were inside the
White House?
A. I didn't.
Q. Why is that?
A. Because they didn't like me.
Q. Would they have objected, do you think--if you know.
A. I don't know.
Q. Did you work with Betty Currie on occasions to--to get in to see
the President, perhaps bypass some of these people?
A. Yes.
Q. And that would be another way that you would conceal the meeting
with the President, by using Betty Currie to get you in?
A. I--I think, yes, be cautious of it.
Q. Did--well, I think we've covered that, about some papers, and I
think we've covered that after you left your job inside the White House
with Legislative Affairs and went to the Pentagon, you developed a
story, a cover story to the effect that you were going to see Betty,
that's how you would come in officially?
A. Correct.
Q. And during that time that you were at the Pentagon, you would
more likely visit him on weekends or during the week? Which would--
which would--
A. Weekends.
Q. Weekends. And why--why the weekends?
A. First, I think he had less work, and second of all, there were--
I believe there were less people around.
Q. Now, whose idea was it for you to come on weekends?
A. I believe it was the President's.
Q. When you--when the President was in his office, was your purpose
to go there and see him? If he was in the office, you would go see him?
A. What--I'm sorry.
Q. No--that's not clear. I'll withdraw that question.
Was Ms. Currie, the President's secretary--was she in the loop, so
to speak, in keeping this relationship and how you got in and out of
the White House, keeping that quiet?
A. I think I actually remember reading part of my grand jury
testimony about this and that it was more specific in that she was in
the loop about my friendship with the President, but I just want to not
necessarily--there was a clarification, I believe, in that about
knowledge of the complete relationship or not. So--
Q. She would help with the gifts and notes and things like that--
the passing?
A. Yes.
Q. Would you agree that these cover stories that you've just
testified to, if they were told to the attorneys for Paula Jones, that
they would be misleading to them and not be the whole story, the whole
truth?
A. They would--yes, I guess misleading. They were literally true,
but they would be misleading, so incomplete.
Q. As I understand your testimony, too, the cover stories were
reiterated to you by the President that night on the telephone--
A. Correct.
Q. --and after he told you you would be a witness--or your name was
on the witness list, I should say?
A. Correct.
Q. And did you understand that since your name was on the witness
list that there would be a possibility that you could be subpoenaed to
testify in the Paula Jones case?
A. I think I understood that I could be subpoenaed, and there was a
possibility of testifying. I don't know if I necessarily thought it was
a subpoena to testify, but--
Q. Were you in fact subpoenaed to testify?
A. Yes.
Q. And that was what--
A. December 19th, 1997.
Q. December 19th.
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 the 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 separate 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.
Q. But they were in the same conversation, were they not?
A. Yes, they were.
Q. Did you understand in the context of the conversation that you
would deny the--the President and your relationship to the Jones
lawyers?
A. Do you mean from what was said to me or--
Q. In the context of that--in the context of that conversation,
December the 17th--
A. I--I don't--I didn't--
Q. Okay. Let me ask it. Did you understand in the context of the
telephone conversation with the President that early morning of
December the 17th--did you understand that you would deny your
relationship with the President to the Jones lawyers through use of
these cover stories?
A. From what I learned in that--oh, through those cover stories, I
don't know, but from what I learned in that conversation, I thought to
myself I knew I would deny the relationship.
Q. And you would deny the relationship to the Jones lawyers?
A. Yes, correct.
Q. Good.
A. If--if that's what it came to.
Q. And in fact you did deny the relationship to the Jones lawyers
in the affidavit that you signed under penalty of perjury; is that
right?
A. I denied a sexual relationship.
Q. The President did not in that conversation on December the 17th
of 1997 or any other conversation, for that matter, instruct you to
tell the truth; is that correct?
A. That's correct.
Q. And prior to being on the witness list, you--you both spoke--
A. Well, I guess any conversation in relation to the Paula Jones
case. I can't say that any conversation from the--the entire
relationship that he didn't ever say, you know, ``Are you mad? Tell me
the truth.'' So--
Q. And prior to being on the witness list, you both spoke about
denying this relationship if asked?
A. Yes. That was discussed.
Q. He would say something to the effect that--or you would say
that--you--you would deny anything if it ever came up, and he would nod
or say that's good, something to that effect; is that right?
A. Yes, I believe I testified to that.
Q. Let me shift gears just a minute and ask you about--and I'm
going to be delicate about this because I'm conscious of people here in
the room and my--my own personal concerns--but I want to refer you to
the first so-called salacious occasion, and I'm not going to get into
the details. I'm not--
A. Can--can we--can you call it something else?
Q. Okay.
A. I mean, this is--this is my relationship--
Q. What would you like to call it?
A. --so, I mean, is--
Q. This is the--or this was--
A. It was my first encounter with the President, so I don't really
see it as my first salacious--that's not what this was.
Q. Well, that's kind of been the word that's been picked up all
around. So--
A. Right.
Q. --let's stay on this first--
A. Encounter, maybe?
Q. Encounter, okay.
A. Okay.
Q. So we all know what we're talking about. You had several of
these encounters, perhaps 10 or 11 of these encounters; is that right?
A. Yes.
Q. Okay. Now, with regard to the first one on November the 15th,
1995, you have testified to a set of facts where the President actually
touched you in certain areas--is that right--and that's--that's where I
want to go. That's as far as I want to go with that question.
MR. CACHERIS: If that's as far as it goes, we will not object--
MR. BRYANT: Okay.
MR. CACHERIS: --and if it goes any further, we will object.
MR. BRYANT: Okay.
BY MR. BRYANT:
Q. You have testified to that?
A. Yes.
Q. And I have the excerpts out, and I don't--but they've been
adopted and affirmed as true. So I'm not going to get--get you looking
at--have you read those excerpts.
A. I appreciate that.
Q. Now, in the--in later testimony before the grand jury, you were
given a definition, and in fact it was the same definition that was
used in the Paula Jones lawsuit, of ``sexual relations.'' Do you recall
the--
A. So I've read.
Q. Yes.
A. I was not shown that definition.
Q. But you were asked a question that incorporated that definition.
A. Not prior to this whole--not prior to the Independent Counsel
getting involved.
Q. But--no--it was the Independent Counsels themselves who asked
you this question.
A. Right. Oh, so you're--you're saying in the grand jury, I was
shown a definition of--
Q. Right.
A. Yes, that's correct.
Q. And you admitted in that answer to that question that the
conduct that you were involved in, the encounter of November the 15th,
1995, fit within that definition of ``sexual relations''?
A. The second encounter of that evening did.
Q. Right.
And were there other similar encounters later on with the
President, not that day, but other occasions that would have likewise
fit into that definition of ``sexual relations'' in the Paula Jones
case?
A. Yes. And--yes.
Q. There was more than one occasion where that occurred?
A. Correct.
Q. So, if the President testifies that he did not--he was not
guilty of having a sexual relationship under the Paula Jones definition
even, then that testimony is not truthful, is it?
MR. CACHERIS: Objection. She should not be called upon to testify
what was in the mind of another person. She's testifying to the facts,
and she has given the facts.
MR. BRYANT: I would ask that she answer the question.
SENATOR DeWINE: Go ahead.
SENATOR LEAHY: The objection is noted for the record.
SENATOR DeWINE: The objection is noted. She may answer the
question.
THE WITNESS: I--I really--
SENATOR LEAHY: If she can.
THE WITNESS: --don't feel comfortable characterizing whether what
he said was truthful or not truthful. I know I've testified to what I
believe is true.
BY MR. BRYANT:
Q. Well, truth is not a wandering standard.
A. Well--
Q. I would hope not. But you have testified, as I've told you, that
what you and he did together on November the 15th, 1995 fit that
definition of the Paula Jones, and you've indicated that there were
other occasions that likewise--
A. Yes, sir.
Q. --that that occurred.
But now the President has indicated as a part of his specific
defense--he has filed an answer with this Senate denying that this
occurred, that he did these actions.
A. I know. I'm not trying to be difficult, but there is a portion
of that definition 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.
If you want to--I don't know if there's another way to phrase that,
but I'm just not comfortable commenting on someone else's intent or
state of mind or what they thought.
Q. Let's move forward to December the 19th, 1997, at that point you
made reference to earlier.
A. I'm sorry. Can you repeat the date again? I'm sorry.
Q. Yes. December the 19th, 1997.
A. Okay, sorry.
Q. At that point where you testified that you received a subpoena
in the Paula Jones case, and that was, of course, on December the 19th,
1997.
Do you recall the specific time of day and where you were when you
were served with the subpoena?
A. I was actually handed the subpoena at the Metro entrance of the
Pentagon--at the Pentagon, and the time--I think it was around 4:30--
4--I--I--if I've testified to something different, then, I accept
whatever I testified to, closer to the date. Sometime in the late
afternoon.
Q. Did they call you, and you had to come out of your office and go
outside--
A. Correct.
Q. --and do that?
Okay. And what did you do after you accepted service of the
subpoena?
A. I started crying.
Q. Did he just give it to you and walk away, or did he give you any
kind of explanation?
A. I think I made a stink. I think I was trying to hope that he
would convey to the Paula Jones attorneys that I didn't know why they
were doing this, and this is ridiculous, and he said something or
another, there is a check here for witness fee. And I said I don't want
their stinking money, and so--
Q. What did you do after, after you got through the emotional part?
A. I went to a pay phone, and I called Mr. Jordan.
Q. Any reason you went to a pay phone, and why did you call Mr.
Jordan? Two questions, please.
A. First is because my office in the Pentagon was probably a room
this size and has--let's see, one, two, three, four--four other people
in it, and there wasn't much privacy. So that I think that's obvious
why I wouldn't want to discuss it there.
And the second question was why Mr. Jordan--
Q. Why did you call Mr. Jordan; yes.
A. Because I couldn't call Mrs. Currie because it was--I hadn't
expected to be subpoenaed that soon. So she was grieving with her
brother's passing away, and I didn't know who else to turn to. So--
Q. And what--what occurred with that conversation with Mr. Jordan?
A. Well, I remember that--that he couldn't understand me because I
was crying. So he kept saying: ``I don't understand what you're saying.
I don't understand what you're saying.''
And I just was crying and crying and crying. And so all I remember
him saying was: ``Oh, just come here at 5 o'clock.''
So I did.
Q. You went to see Mr. Jordan, and you were inside his office after
5 o'clock, and you did--is that correct?
A. Yes.
Q. Were--were you interrupted, in the office?
A. Yes. He received a phone call.
Q. And you testified that you didn't know who that was that called?
A. Correct.
Q. Did you excuse yourself?
A. Yes.
Q. What--after you came back in, what--what occurred? Did he tell
you who he had been talking to?
A. No.
Q. Okay. What happened next?
A. I know I've testified about this--
Q. Yes.
A. --so I stand by that testimony, and my recollection right now is
when I came back in the room, I think shortly after he had placed a
phone call to--to Mr. Carter's office, and told me to come to his
office at 10:30 Monday morning.
Q. Did you know who Mr. Carter was?
A. No.
Q. Did Mr. Jordan tell you who he was?
A. No--I don't remember.
Q. Did you understand he was going to be your attorney?
A. Yes.
Q. Did you express any concerns about the--the subpoena?
A. I think that happened before the phone call came.
Q. Okay, but did you express concerns about the subpoena?
A. Yes, yes.
Q. And what were those concerns?
A. In general, I think I was just concerned about being dragged
into this, and I was concerned because the subpoena had called for a
hatpin, that I turn over a hatpin, and that was an alarm to me.
Q. How--in what sense was it--in what sense was it an alarm to you?
A. The hatpin being on the subpoena was evidence to me that someone
had given that information to the Paula Jones people.
Q. What did Mr. Jordan say about the subpoena?
A. That it was standard.
Q. Did he have any--did he have any comment about the specificity
of the hatpin?
A. No.
Q. And did you--
A. He just kept telling me to calm down.
Q. Did you raise that concern with Mr. Jordan?
A. I don't remember if--if I've testified to it, then yes. If--I
don't remember right now.
Q. Did--would you have remembered then if he made any comment or
answer about the hatpin?
A. I mean, I think I would.
Q. And you don't remember?
A. I--I remember him saying something that it was--you know, calm
down, it's a standard subpoena or vanilla subpoena, something like
that.
Q. Did you ask Mr. Jordan to call the President and advise him of
the subpoena?
A. I think so, yes. I asked him to inform the President. I don't
know if it was through telephone or not.
Q. And you did that because the President had asked you to make
sure you let Betty know that?
A. Well, sure. With Betty not being in the office, I couldn't--
there wasn't anyone else that I could call to get through to him.
Q. Did Mr. Jordan say to you when he might see the President next?
A. I believe he said he would see him that evening at a holiday
reception.
Q. Did Mr. Jordan during that meeting make an inquiry about the
nature of the relationship between you and the President?
A. Yes, he did.
Q. What was that inquiry?
A. I don't remember the exact wording of the questions, but there
were two questions, and I think they were something like did you have
sex with the President or did he--and if--or did he ask for it or
some--something like that.
Q. Did you--what did you suspect at that point with these questions
from Mr. Jordan in terms of did he know or not know about this?
A. Well, I wasn't really sure. I mean, two things. I think there
is--I know I've testified to this, that there was another component to
all of this being Linda Tripp and her--what she might have led me to
believe or led me to think and how that might have characterized how I
was perceiving the situation.
I--I sort of felt that I didn't know if he was asking me as what
are you going to say because I--I don't know these answer to these
questions, or he was asking me as I know the answer to these questions
and what are you going to say. So, either way, for me, the answer was
no and no.
Q. And that's just what I wanted to ask you--you did answer no to
both of those, but--
A. Yes.
Q. --as you explained--you didn't mention this directly, but you
mentioned in some of your earlier testimony about it, that this was
kind of a wink and--you thought this might be a wink-and-nod
conversation, where he really knew what was going on, but--
A. Well, I think that's what I just said.
Q. --he was testing you to see what you would say?
A. --that I wasn't--I--that was one of the--that was one of the
things that went through my mind. I mean, it was not--I think that's
what I just testified to, didn't I?
Q. You didn't use the term ``wink-and-nod,'' though.
A. Oh.
Q. Did you have any conversation with Mr. Jordan during that
meeting about the specifics of an affidavit?
A. No.
Q. Do you know if the subject of an affidavit even came up?
A. I don't think so.
Q. What happened next? Is that when he made the call to Mr. Carter,
after this conversation?
A. No. He made the call to Mr.--I think--well, I think he made the
call to Mr. Carter, uh, shortly after I came back into the room, but I
could be wrong.
Q. And then the meeting concluded after that--after the appointment
was set up with Mr. Carter, the meeting concluded?
A. Yes.
SENATOR DeWINE: Mr. Bryant, we're going to need to break sometime
in the next 5 minutes. Is this a good time, or do you want to
complete--
MR. BRYANT: This is a good time.
SENATOR DeWINE: Okay. We'll take a 5-minute break.
THE VIDEOGRAPHER: We're going off the record at 12:04 p.m.
[Recess.]
THE VIDEOGRAPHER: We are going back on the record at 12:16 p.m.
SENATOR DeWINE: We are back on the record.
Let me advise House Managers that they have consumed one hour and
54 minutes.
Mr. Bryant, you may proceed.
MR. BRYANT: Thank you, sir.
BY MR. BRYANT:
Q. Ms. Lewinsky, let me just cover a couple of quick points, and
then I'll move on to another area, at least the next meeting with Mr.
Jordan and eventual meeting with Mr. Carter.
Back when issues of--we were discussing the issues of cover
stories, uh, would you tell me about the, uh, code name with Betty
Currie, the President's secretary and how that worked in terms of the
use--I guess the word ``Kay,'' the name ``Kay,'' and were there other
code names, and when did this start?
A. Sure. First, let me say there's--from my experience with working
with Independent Counsel on this subject area, there--my initial memory
of things and then what I came to learn from, from other evidence, I
think, are sort of two different things. So I initially hadn't
remembered when that had happened or what had happened.
The name ``Kay'' was used because Betty and I first came to know
each other and know--or, I guess I came to know of Mrs. Currie through
Walter Kaye, who was a family friend, and I think that that--I don't
remember when we started using it, but I know that by January at some
point--by let's just say January, I think, 12th or 13th, we were doing
that. So I know I was beyond paranoid at this point.
Q. Was ``Kay'' your code name, so to speak?
A. I believe--yes, yes. So she was ``Kay'' and I was ``Kay.''
Q. So any time, uh--not any time--so you used the ``Kay'' name
interchangeably between the two--just between the two of you?
A. Just for paging messages.
Q. And, uh, when we're talking about that Ms. Currie would WAVE you
into the White House, would that occur when the President was there? I
mean, you went in--
A. There--there were times that I went to see Mrs. Currie when the
President wasn't there.
Q. Right. And she would WAVE you in.
A. Correct.
Q. And there were times other people WAVE'd you in when the
President wasn't there?
A. Correct.
Q. But when the President was there, and you were going to see the
President, Ms. Currie was the one that always WAVE'd you in?
A. Yes, and I think, unless--maybe on the occasions of the radio
address or it was an official function.
Q. Now, I think we talked a little bit about this. During your
December the 19th meeting with Mr. Jordan, uh, he did schedule you a
time to meet, uh, and introduce you to Mr. Carter?
A. Correct.
Q. And that--when was that meeting with Mr. Carter scheduled?
A. Uh, I believe for--it was Monday morning. I think it was 11
o'clock, around--sometime around that time.
Q. And my notes say that would have been December the 22nd, 1997.
A. Correct.
Q. Did you, uh, call to meet him earlier, and if so, why?
A. Yes. I had--I had had some concerns over the weekend that I
didn't know if--if Mr. Jordan knew about the relationship or didn't
know about the relationship. I was concerned about--I'm sure you can
understand that I was dealing with a set of facts that were very
different from what the President knew about being pulled into this
case in that I had, in fact, disclosed information. So I was very
paranoid, and, uh, I, uh, I--I was trying to--trying to see what Mr.
Jordan knew was--was trying to inform him, was trying to just get a
better grasp of what was going on.
Is that--is that clear? No?
Q. You were--you were worried that Mr. Jordan didn't have a--did
not have a grasp of what was really going on?
A. Correct.
Q. And that would be in terms of actually knowing the real
relationship between you and the President?
A. Correct.
Q. So how did you attempt to correct that?
A. Well, I--I sort of--I think the way it came up was I said, uh--I
think I said to Mr. Jordan--I know I've testified to this, uh, that--
something about what about if someone overheard the phone calls that I
had with him. And Mr. Jordan, I believe, said something like: So what?
The President's allowed to call people.
And then--well.
Q. Now, was this at a meeting on December the 22nd, before you went
to see Mr. Carter?
A. Correct.
Q. I assume you--you went to Mr. Jordan's office first, and then he
was going to escort you over and turn you over to Mr. Carter?
A. Correct.
Q. And it was at that meeting that you brought up the possibility
of someone overhearing a conversation with the President and you--
between the two of you?
A. Yes.
Q. What else was said at that meeting with Mr. Jordan?
A. I think it covered a topic that I thought we weren't discussing
here.
Q. Uh, okay. All right. I'm not sure.
A. Okay. Well, I--I know I've testified to this in my--I think in
all three, if not both of my grand jury appearances, and I'm very happy
to stand by that testimony.
Q. All right. I'm going to go around this a little bit without
getting into details. You had a conversation with Mr. Jordan to
detail--to give him more specific details of your relationship with the
President.
A. Uh, to give him more details of some of the types of phone calls
that we had.
Q. Okay. Uh, did you ask Mr. Jordan had he spoken with the
President during that conversation?
A. Yes, I believe so.
Q. And why was this--why did you need to know that, or why was it
important that you know that?
A. I wanted the President to know I'd been subpoenaed.
Q. Did, uh--in your, uh, proffer, you say that you made it clear to
Mr. Jordan that you would deny the sexual relationship. Do you recall
saying that in your proffer?
A. Uh, I know--I know that was written in my proffer.
Q. Okay. Well, I guess the better question is did you--did you in
fact make that clear to Mr. Jordan that you would deny a sexual
relationship with the President?
A. I--I'm not really sure. I--this is sort of an area that, uh, has
been difficult for me. I think, as I might have discussed in the grand
jury, that when I originally wrote this proffer, it was to be a road
map and, really, something to help me to get immunity and not
necessarily--it's not perfect.
Uh, so, I think that was my intention--I know that was my intention
of--or at least what I thought I was doing--but I never really thought
that this would become the be-all and end-all, my proffer.
Q. Did, uh, did 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 those items with Mr. Jordan?
A. I think I showed them to him, but I'm not 100 percent sure. If
I've testified that I did, then I'd stand by that.
Q. Okay. How did you select those items?
A. Uh, actually, kind of in an obnoxious way, I guess. I--I felt
that it was important to take the stand with Mr. Carter and then, I
guess, to the Jones people that this was ridiculous, that they were--
they were looking at the wrong person to be involved in this. And, in
fact, that was true. I know and knew nothing of sexual harassment. So I
think I brought the, uh, Christmas cards, that I'm sure everyone in
this room has probably gotten from the President and First Lady, and
considered that correspondence, and some innocuous pictures and--they
were innocuous.
Q. Were they the kind of items that typically, an intern would
receive or, like you said, any one of us might receive?
A. I think so.
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. I don't believe so.
Q. Did Mr. Jordan make any comment about those items?
A. No.
Q. Were any of these items eventually turned over to Mr. Carter?
A. Yes.
Q. And did you tell Mr. Jordan at that meeting that morning that
these were not all of the gifts?
A. I think I--I know I sort of alluded to that in my proffer, and I
don't, uh--it's possible. I don't have a specific recollection of that.
Q. And do you have a recollection of any response he may have made
if you said that?
A. No.
Q. That--did you tell Mr. Jordan that day that the, uh, President
gave you a hatpin and that the hatpin was mentioned in the subpoena?
A. No.
Q. Did you discuss the hatpin with Mr. Jordan?
A. On the 22nd?
Q. Yes.
A. No.
Q. Any other time?
A. Yes.
Q. When was that?
A. On the 19th.
Q. Okay, and what was--I think I may have missed that, going
through that. Tell me about it.
A. Actually, I think we--we went through it.
Q. You just maybe mentioned it.
A. I mentioned it when I first mentioned to him the subpoena that
the hatpin had concerned me.
Q. What was the significance of that hatpin to you? That seems to
stand out. Was that--was that a--
A. Right. I think, as I mentioned before, it was an alarm to me
because it was a specific item--
Q. Right.
A. --in this list of generalities--I don't know generalities, but
of general things--you sort of go--hatpin?
Q. Right. I recall that, but I--I think my question was, was it of
any special significance to you.
A. Sure.
Q. Was it, like, the first gift or something, that it really stood
out above the others?
A. Yes. It--it was--it was the first gift he gave me. It was a
thoughtful gift. It was beautiful.
Q. And was the hatpin in that list, that group of items that you
carried to surrender to Mr. Carter?
A. No.
Q. And the hatpin was not in that list of items that you showed Mr.
Jordan?
A. I--I didn't show Mr. Jordan a list of items.
Q. No--I thought you said you showed him the items.
A. Correct.
Q. And the hatpin was not in that group--I may have ``list''--
A. Oh.
Q. --but the hatpin was not in that group of items--
A. No, it was not.
Q. --that you showed Mr. Jordan. Okay.
Tell us, if you would, how you arrived at Mr. Carter's. I know you
rode in a car, but Mr. Jordan was with you--
A. Yes.
Q. --you went in--and tell us what happened.
A. Uh, in the car, we spoke about job things. I know he mentioned
something about, I think, getting in touch with Howard Pastor, and I
mentioned to Mr. Jordan that Mr. Bacon knew Mr. Pastor and had already
gotten in touch with him, and so he should--I just wanted Mr. Jordan to
be aware of that.
Uh, we talked about--it was really all about the job stuff because
Mr. Jordan--the man driving the car--I didn't want to discuss anything
with the case.
Q. But once you arrived and Mr. Jordan made the introduction--
A. Correct.
Q. --between the two of you. And did he explain to Mr. Carter your
situation, or did he go beyond just the perfunctory introduction?
A. No.
Q. Did he leave?
A. Yes.
Q. Did you, uh--I guess--generally, what did you discuss with Mr.
Carter?
A. The same vanilla story I had kind of--well, actually, not even
that. I discussed with Mr. Carter the--uh, that this was ridiculous,
that I was angry, I didn't want to be involved with this, I didn't want
to be associated with Paula Jones, with this case.
Q. Did you, uh--
A. I asked if I could sue Paula Jones. [Laughing.]
Q. Did you discuss an affidavit?
A. Yes, I believe I mentioned an affidavit.
Q. Did you mention, uh, the, uh--well, was there discussion about
how you could sign an affidavit that might be--allow you to skirt being
called as a witness?
A. Mr. Carter said that was a possibility but that there were other
things that we should try first; that he, uh, thought--well, actually,
can I ask my attorneys a question for a moment?
MR. BRYANT: Uh, sure.
[Witness conferring with counsel.]
SENATOR DeWINE: Counsel, Ms. Lewinsky's mike is carrying; it's
picking up, so we don't want to--
THE WITNESS: Sorry. I was only saying nice things about you all.
SENATOR DeWINE: Thank you.
[Laughter.]
MR. CACHERIS: So that you'll know what we're discussing here, as
you know, Ms. Lewinsky is not required to give up her lawyer-client
privileges, and the question we don't know the answer to and would like
to address after lunch is whether in fact Mr. Carter has testified to
this conversation.
Therefore, perhaps--
SENATOR DeWINE: All right. Maybe counsel at this point could--could
you rephrase--rephrase the question or ask another question, and after
lunch, we can come back--
MR. CACHERIS: Or come back.
SENATOR DeWINE: Well, I don't want--I don't think he has to move
off the general area if he can--I'll leave that up to counsel.
MR. BRYANT: There may be some misunderstanding or--
SENATOR DeWINE: Why don't you rephrase the question and we'll see
where we are.
MR. BRYANT: --on this issue of--well, on this issue of the
attorney-client privilege, it is our understanding that she is able to
testify. But again, I don't know, uh, if we're going to resolve that
right now.
SENATOR DeWINE: Why don't we try to resolve that issue over lunch
and--
MR. BRYANT: Because I do have other questions that would relate to
this area.
SENATOR DeWINE: --you can stay in this general area.
MR. BRYANT: Well, I'm not sure I can stay in this area too far
without other questions that might arguably be involved in that
privilege. I can ask them and you can object if you think they're
within that range.
MR. CACHERIS: Well, as I said, it's our understanding that under
her agreement with the Independent Counsel, she has not been required
to waive her lawyer-client privilege, and we don't want to do so here.
That's that simple. And, Mr. Bryant, I want to check to see if Mr.
Carter has testified about this. If he has, then we might be
objecting--
MR. BRYANT: Well, she has already, I think, waived that privilege
through talking with the FBI and those folks. I mean, we have
statements that concern those conversations--
SENATOR DeWINE: Well, let's, instead of--
MR. BRYANT: --and the 302's.
SENATOR DeWINE: Counsel, let me just--if I could interrupt both of
you, to keep moving here. Mr. Bryant, you have a choice. You can
continue on this line of questioning, and we will have to deal with
that, or you can move off of it, and in 20 minutes we'll be at a lunch
break and then we can try to resolve that.
MR. BRYANT: To be clear and fair, let's just--let me postpone the
rest of this--
SENATOR DeWINE: That will be fine.
MR. BRYANT: --exam, and we'll move over to December 28th, and we'll
come back if it's appropriate.
SENATOR DeWINE: That will be fine.
THE WITNESS: I'm sorry. I'm not trying to be difficult. I'm sorry.
MR. BRYANT: No. That's a valid concern; it really is.
Let's talk a minute--I just don't want to forget to do this; unless
I make notes, I forget.
SENATOR LEAHY: You've got enough people here making notes; I don't
think it'll be--I don't think it'll be forgotten.
BY MR. BRYANT:
Q. We're going to move in the direction of the December 28th, 1997
meeting, and I'm going to ask you, at some point did you meet with the
President later in December?
A. Yes.
Q. Okay, and what date was that?
A. December 28th, 1997.
Q. Thank you. How did the meeting come about?
A. Uh, I contacted Mrs. Currie after Christmas and asked her to
find out if the President still wanted to give me his Christmas
present, or my Christmas present.
Q. Did Ms. Currie get back to you?
A. Yes, she did.
Q. And what was her response?
A. To come to the White House at 8:30 a.m. on the 28th.
Q. And that would have been Sunday?
A. Yes.
Q. Did you in fact go to the White House on that date?
A. Yes.
Q. And how did you get in?
A. I believe the Southwest Gate.
Q. Did Ms. Currie WAVE you in?
A. I think so.
Q. You've testified to that previously.
A. Okay, then I accept that.
Q. This, uh, meeting on the 28th was a Sunday, and Ms. Currie--
again, according to your prior testimony--WAVE'd you in. This was all
consistent with what the President had told you to do about, number
one, coming on weekends; is that correct?
A. I--I--I don't think me coming in on that Sunday had--I mean, for
me, my memory of it was that it was a holiday time, so it could have
been any day. It's pretty quiet around the White House from Christmas
to New Year's.
Q. And it would have been consistent with her WAVEing you in when
she was there at work on Sunday?
A. Yes.
Q. That was unusual, though, for her to be in on Sunday, wasn't it?
A. I--I--I--I think so, but I mean, that's her--I think that's
something you'd have to ask her.
MR. BRYANT: I'm concerned about the time. I'm going to go ahead and
continue with this, and we'll just stop wherever we have a--whenever
you tell us to stop. This will take a little bit longer than another 15
minutes or so; but it's appropriate, I think, for us to continue.
SENATOR DeWINE: Well, frankly, it's up to you.
MR. BRYANT: Okay.
SENATOR DeWINE: Do you have a problem in breaking it?
MR. BRYANT: No; no, I don't think so.
SENATOR DeWINE: I mean, if you do, we can take lunch now. I'll
leave that up to you.
MR. BRYANT: Uh, why don't we take the lunch now--
SENATOR DeWINE: All right. No one has any objection to that, we
will do that.
THE WITNESS: I never object to food.
SENATOR DeWINE: Let me just announce to counsel you have used 2
hours and 14 minutes. It is now 20 minutes until 1. We'll come back
here at 20 minutes until 2. And we need during this break also to see
counsel and try to resolve the other issue prior to going back in. This
is the privilege issue.
SENATOR LEAHY: Did counsel for Ms. Lewinsky have to make a couple
phone calls first, before we have that discussion? I think--
SENATOR DeWINE: My suggestion would be we do that at the last 15
minutes of the break.
SENATOR LEAHY: I think he said he wanted to call Mr. Carter; that's
why--
MR. CACHERIS: Meet you back up here?
SENATOR DeWINE: Yes. I would also--the sergeant-at-arms has asked
me to announce that the food is on this floor, and since we have a very
limited period of time, we suggest you try to stay on the floor.
MS. HOFFMANN: We were planning to go back--
SENATOR DeWINE: Except--I understand. I know that you're--
MR. CACHERIS: We have our own arrangements.
SENATOR DeWINE: I know that you have your room, and you've made
your own arrangements, and that's fine.
So we will start back in one hour.
THE VIDEOGRAPHER: We are going off the record at 12:39 p.m.
[Whereupon, at 12:39 p.m., the deposition was recessed, to
reconvene at 1:39 p.m. this same day.]
afternoon session
THE VIDEOGRAPHER: We are going back on the record at 13:43 hours.
SENATOR DeWINE: We are now back on the record.
As we broke for lunch, there was an objection that had been made by
Ms. Lewinsky's counsel. Let me call on them at this point for
statements.
MR. CACHERIS: Yes. We have examined the record during the course of
the break, and while we know that the immunity agreement does provide
for Ms. Lewinsky to maintain her lawyer-client privilege, we think in
this instance, the matter has been testified so fully that it has been
waived. So the objection that we lodged is withdrawn.
SENATOR DeWINE: Thank you very much.
Mr. Bryant, you may proceed.
MR. BRYANT: Thank you, Mr. Senator.
BY MR. BRYANT:
Q. We've got you to the point where Mr. Jordan has escorted you to
Mr. Carter's office and has departed, and you and Mr. Carter have
conversations.
Generally, what did you discuss with Mr. Carter?
A. I guess the--the reasons why I didn't think I should be called
in this matter.
Q. Did he ask you questions?
A. Yes.
Q. What type of questions did he ask you?
A. Um, they ranged from where I lived and where I was working to
did I have a relationship with the President, did--everything in
between.
Q. When he--when he asked you about the relationship, did you
understand he meant a sexual-type relationship?
A. He asked me questions that--that indicated he was being
specific.
Q. And did--did you deny such a relationship?
A. Yes, I did.
Q. Did he ask you questions about if you were ever alone with the
President?
A. Yes, he did.
Q. And did you deny that?
A. I think I mentioned that I might have brought the President
papers on occasion, may have had an occasion to be alone with him, but
not--not anything I considered significant.
Q. But that was not true either, was it?
A. No.
Q. And in fact, that--the fact that you brought him papers, that
was part of the cover-up story?
A. Correct.
Q. I'm unclear on a point I want to ask you. Also, did Mr. Carter
ask you about how you perhaps were pulled into this case, and you gave
some answer about knowing Betty Currie and--and Mr. Kaye? Does that
ring bells? You gave that testimony in your deposition.
A. That that's how I got pulled into the case?
Q. Right. Did--
A. May I see that, please?
Q. It's about your denying the relationship with the President, and
you think maybe you got pulled into the case. It's--certainly, it's--
it's in your grand jury--okay. It's--it's in the August 1 interview,
page 9. This was a 302 exam from the FBI.
A. Um--
MR. BRYANT: Let me give that to her. Let me just give it to her to
refresh her memory. I'm not going to put it in evidence, although
it's--it should be there.
[Handing document.]
[Witness perusing document.]
THE WITNESS: I don't think that's an accurate representation of
what I might have said in this interview.
BY MR. BRYANT:
Q. Okay. Would you--how would you have related Walter Kaye in that
interview? How would his name have come up?
A. In this interview or with Mr. Carter?
Q. Well, in the interview with Mr. Carter that I assume was sort of
summarized in that--
A. Right.
Q. --302, but, yes, with Mr. Carter.
A. Uh, I think I mentioned that I was friendly with Betty Currie,
the President's secretary.
Q. And how would Mr. Kaye's name have come up in the conversation?
A. Because of how I met Ms. Currie was through--that's how I came
to know of Ms. Currie and--and first introduced myself to her. Excuse
me.
Q. Let's go back now and resume where we were before the lunch
break. We were talking about the December visit to the White House and
the conversation with the President. You had discussed--well, I think
we're to the point where perhaps you--or I'll ask you to bring up your
discussion with the President about the subpoena and the request for
production.
A. Um, part way into my meeting with the President, I brought up
the concern I had as to how I would have been put--how I might have
been alerted or--not alerted, but how I was put on the witness list and
how I might have been alerted to the Paula Jones attorneys, and that
that was--I was sort of concerned about that. So I discussed that a
little, and then I said, um, that I was concerned about the hatpin. And
to the best of my memory, he said that that had concerned him as well,
and--
Q. Could he have said that bothered him?
A. He--he could have. I--I mean, I don't--I know that sometimes in
the--in my grand jury testimony, they've put quotations around things
when I'm attributing statements to other people, and I didn't
necessarily mean that those were direct quotes. That was the gist of
what I remembered him saying. So, concern, bothered, it doesn't--
Q. Was--was there a discussion at that point as to how someone
might have--may have discovered the--the hatpin and why?
A. Well, he asked me if I had told anybody about it, and I said no.
Q. But the two of you reached no conclusion as to how that hatpin
came--
A. No.
Q. --to appear on the motion?
A. No.
Q. Did he appear at all, I think, probably surprised that--that you
had received a request for production of documents or the--the hatpin
was on that document?
A. I didn't discuss--we didn't discuss documents, request for
documents, but with regard to the hatpin, um, I don't remember him
being surprised.
Q. Mm-hmm. How long did the discussion last about the--this request
for production of--of the items?
A. The topic of the Paula Jones case, maybe 5 minutes. Not very
much.
Q. What else was said about that?
A. About the case?
Q. Yes.
A. There was--then, at some point in this discussion--I think it
was after the hatpin stuff--I had said to him that I was concerned
about the gifts and maybe I should put them away or possibly give them
to Betty, and as I've testified numerously, his response was either
ranging from no response to ``I don't know'' or ``let me think about
it.''
Q. Did the conversation about the--the gifts that you just
mentioned, did that immediately follow and tie into, if you will, the
conversation about the request for production of items, the hatpin and
so forth? Did one lead to the other?
A. I don't remember. I know the gift conversation was subsequent to
the hatpin comment, but I--I don't remember if one led to the other.
Q. What else happened after that?
A. Hmm, I think we went back to sort of--we left that topic, kind
of went back to the visit.
Q. Did--which included exchanging the Christmas gifts?
A. Correct.
Q. Okay.
A. I had already--he had already given me my presents at this
point.
Q. Okay. Did--he gave you some gifts that day, and my question to
you is what went through your mind when he did that, when you knew all
along that you had just received a subpoena to produce gifts. Did that
not concern you?
A. No, it didn't. I was happy to get them.
Q. All right. Why did it--beyond your happiness in receiving them,
why did the subpoena aspect of it not concern you?
A. I think at that moment--I mean, you asked me when he gave me
those gifts. So, at that moment, when I was there, I was happy to be
with him. I was happy to get these Christmas presents. So I was nervous
about the case, but I had made a decision that I wasn't going to get
into it too much--
Q. Well--
A. --with a discussion.
Q. --have you in regards to that--you've testified in the past that
from everything that the President had told you about things like this,
there was never any question that you were going to keep everything
quiet, and turning over all the gifts would prompt the Jones attorneys
to question you. So you had no doubt in your mind, did you not, that
you weren't going to turn these gifts over that he had just given you?
A. Uh, I--I think the latter half of your statement is correct. I
don't know if you're reading from my direct testimony, but--because you
said--your first statement was from everything the President had told
you. So I don't know if that was--if those were my words or not, but
I--no, I was--I--it--I was concerned about the gifts. 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 that you stated.
Q. But the pattern that you had had with the President to conceal
this relationship, it was never a question that, for instance, that
given day that he gave you gifts that you were not going to surrender
those to the Jones attorneys because that would--
A. In my mind, there was never a question, no.
Q. I'm just actually looking at your deposition on page--no, I'm
sorry--your grand jury proceedings of August the 6th, just to be clear,
since you raised that question.
1004 in the book, appendices.
You indicate that in response to a question, ``What do you think
the President is thinking when he is giving you gifts when there is a
subpoena covering gifts. I mean, does he think in any way, shape or
form that you're going to be turning these gifts over?'' And your
answer is, ``You know, I can't answer what he was thinking, but, to me,
it was--there was never a question in my mind, and I--from everything
he said to me, I never questioned him that we were ever going to do
anything but keep this private. So that meant deny it, and that meant
do whatever appropriate--take whatever appropriate steps needed to be
taken, you know, for that to happen, meaning that if--if I had to turn
over every gift--if I had turned over every gift he had given me--first
of all, the point of the affidavit and the point of everything was to
try to avoid a deposition. So where I'd have to sort of--you know, I
wouldn't have to lie as much as I would necessarily in an affidavit how
I saw it,'' and you continue on, just one short paragraph.
A. Right.
Q. ``So, by turning over all of these gifts, it would at best
prompt him to want to question me about what kind of friendship I had
with the President, and they would want to speculate and they'd leak
it, and my name would be trashed and he would be in trouble.''
So you recall giving that testimony?
A. Yes. I accept--I accept what's said here.
Q. Okay.
A. It's a little different from what you said, but very close.
Q. Thank you.
Did the President ever tell you to turn over the gifts?
A. Not that I remember.
Q. Now, is that--does that bring us to the end of this conversation
with the President, or did other things occur?
A. I think that the aspect of where this case is related, yes.
Q. Okay. And then you left, and where did you go when you left the
White House?
A. I think I went home.
Q. This is at--at your apartment?
A. My mother's apartment.
Q. Mother's apartment.
Did you later that day receive a call from Betty Currie?
A. Yes, I did.
Q. Tell us about that.
A. I received a call from--from Betty, and to the best of my
memory, she said something like I understand you have something for me
or I know--I know I've testified to saying that--that I remember her
saying either I know you have something for me or the President said
you have something for me. And to me, it's a--she said--I mean, this is
not a direct quote, but the gist of the conversation was that she was
going to go visit her mom in the hospital and she'd stop by and get
whatever it was.
Q. Did you question Ms. Currie or ask her, what are you talking
about or what do you mean?
A. No.
Q. Why didn't you?
A. Because I assumed that it meant the gifts.
Q. Did--did you have other telephone calls with her that day?
A. Yes.
Q. Okay. What was the purpose of those conversations?
A. I believe I spoke with her a little later to find out when she
was coming, and I think that I might have spoken with her again when
she was either leaving her house or outside or right there, to let me
know to come out.
Q. Do--at that time, did you have the caller identification--
A. Yes, I did.
Q. --on your telephone?
A. Yes.
Q. And did you at least on one occasion see her cell phone number
on your caller-ID that day?
A. Yes, I did.
Q. Now, Ms. Currie has given different versions of what happened
there, but I recall one that she mentioned about Michael Isikoff, that
you had called her and said Michael Isikoff is calling around or called
me--
A. Mm-hmm.
Q. --about some gifts.
Did Mr. Isikoff ever call you about the gifts?
A. No.
Q. Okay. Would there have been--would there have been any reason
for you not to have carried the gifts to Ms. Currie had you wanted
her--had you called her, would you have had her come over to get them
from you, or does that--
A. Probably not.
Q. I mean, is there--is there any doubt in your mind that she
called you to come pick up the gifts?
A. I don't think there is any doubt in my mind.
Q. Okay. Let me ask was--I think you did something special for her,
as I recall, too, or her mother. Did you prepare a plant or something
for her to pick up?
A. Um, no. I just--
Q. To take to her mother?
A. I bought a small plant and a balloon.
Q. Okay. What was your understanding about her mother, and was--
A. Oh, I--I knew her mom was in--was in the hospital and was sick,
and I think this was her second trip to the hospital in several months,
and it had been a tough year.
Q. And was she--was Mrs. Currie coming by your place on her way to
visit her mother in the hospital? Do you know that?
A. That's what I remember her saying.
Q. So you prepared--and you bought a gift for her mother?
A. Correct.
Q. Okay. Do you know what kind of time frame this covered? First of
all, it was the same day, December the 28th, 1997?
A. Seven, yes.
Q. Do you know what kind of time frame it covered?
A. I think it was afternoon. I know I've testified to around 2
o'clock.
Q. Could it have been later?
A. Sure.
Q. So, when Betty Currie came, what--what did you have prepared for
her?
A. I had a box from the Gap with some of the presents the President
had given me, taped up in it.
Q. What happened when she arrived?
A. Uh, I think I walked out to the car and asked her to hold onto
this, and I think we talked about her mom for a few minutes. Um--
Q. Did she call you right before she arrived, or did you just go
wait for her in the building?
A. I think she called me right before she--at some point, I think,
before she--either when she was leaving or she was outside.
Q. Do you know--did you have any indication from Ms. Currie what
she was going to do with that box of gifts?
A. Um, I know I've testified to this. I don't--I don't remember. I
think maybe she said something about putting it in a closet, but
whatever I--I stand by whatever I've said in my testimony about it.
Q. But she was supposed to keep these for you?
A. Well, I had asked her to.
Q. Okay. Did Ms. Currie ask you at any time about what was in the
box?
A. No, or not that I recall, I guess I should say.
Q. What was the--in your mind, what was the purpose of having Ms.
Currie retain these gifts as opposed to another friend of yours?
A. Hmm, I know I've testified to this, and I can't--can I look at
my grand jury--I mean, I don't really remember sitting here right now,
but if I could look at my grand jury testimony, I--or I'd just stand by
it.
Q. We will pass that to you.
A. Okay. Thank you.
[Witness handed documents.]
BY MR. BRYANT:
Q. The answer I'm looking for is--if this refreshes your
recollection is that turning these over was a reassurance to the
President that everything was okay. Is that--
A. Can I read it in context, please?
Q. Sure, sure.
A. Thank you.
[Witness perusing document.]
THE WITNESS: I--I--I stand by this testimony. I mean, I'd just note
that it--what I'm saying here about giving it to the President or the
assurance to the President is how I saw it at that point, not
necessarily how I felt then. So I think you asked me what--why I didn't
at that point, and I'm just--that's what's a little more clear there,
just to be precise. I'm sorry.
BY MR. BRYANT:
Q. Okay. Did you have any later conversations with either Ms.
Currie or the President about these gifts in the box?
A. No.
Q. Let me direct your attention to your meeting with Vernon Jordan
on December the 31st of 1997. Was that to go back and talk about the
job again?
A. Little bit, but the--the--for me, the point of that meeting was
I had gotten to a point where Linda Tripp wasn't returning my phone
calls, and so I felt that I needed to devise some way, that somehow--to
kind of cushion the shock of what would happen if Linda Tripp testified
all the facts about my relationship, since I had never disclosed that
to the President. So that was sort of my intention in meeting with Mr.
Jordan, was hoping that I could give a little information and that
would get passed on.
Q. This was at a meeting for breakfast at the Park Hyatt Hotel?
A. Yes.
Q. Were just the two of you present?
A. Yes.
Q. Did you discuss other things, other than Linda Tripp and your
job search?
A. I think we talked about what each of us were doing New Year's
Eve.
Q. Specifically about some notes that you had at your apartment?
A. Oh, yes. I'm sorry.
Um, well, I mean, that really was in relation to discussing Linda
Tripp. So--
Q. And the Jones lawyers, too. Was that right?
A. Um, I--I don't know that I discussed the Jones lawyers. If I've
testified that I discussed the Jones lawyers, then I did, but--
Q. Okay. Well, tell us about the notes.
A. Well, the--sort of the--I don't know what to call it, but the
story that I gave to Mr. Jordan was that I was trying to sort of alert
to him that, gee, maybe Linda Tripp might be saying these things about
me having a relationship with the President, and right now, I'm
explaining this to you. These aren't the words that I used or how I
said it to him, and that, you know, maybe she had seen drafts of notes,
trying to obviously give an excuse as to how Linda Tripp could possibly
know about my relationship with the President without me having been
the one to have told her. So that's what I said to him.
Q. And what was his response?
A. I think it was something like go home and make sure--oh,
something about a--I think he asked me if they were notes from the
President to me, and I said no. I know I've testified to this. I stand
by that testimony, and I'm just recalling it, that I said no, they were
draft notes or notes that I sent to the President, and then I believe
he said something like, well, go home and make sure they're not there.
Q. And what did you do when you went home?
A. I went home and I searched through some of my papers, and--and
the drafts of notes I found, I sort of--I got rid of some of the notes
that day.
Q. So you threw them away?
A. Mm-hmm.
THE REPORTER: Is that a ``yes''?
THE WITNESS: Yes. Sorry.
BY MR. BRYANT:
Q. On your way home, you were with Mr. Jordan? I mean, he carried--
did he carry you someplace or take you home, drop you off?
A. Yes, he dropped me off.
Q. Okay. On the way home--
A. It wasn't on the way to my home, but--
Q. Okay. Did he--did you tell him that you had had an affair with
the President?
A. Yes.
Q. What was his response?
A. No response.
Q. When was the next time--well, let me direct your attention to
Monday, January the 5th, 1998. You had an occasion to meet with your
lawyer, Mr. Carter, about your case, possible depositions, and so
forth.
Did you have some concern at that point about those depositions and
how you might answer questions in the Paula Jones case?
A. Yes.
Q. Did you reach any sort of determination or resolution of those
concerns by talking to Mr. Carter?
A. No.
Q. What's the status of the affidavit at this point? Is there one?
A. No.
Q. Do you recall any other concerns or questions that either you or
Mr. Carter may have presented to each other during that meeting?
A. I think I--I think it was in that meeting I brought up the
notion of having my family present, if I had to do a deposition, and he
went through what--I believe we discussed--at this point, I think I
probably knew at this point I was going to sign an affidavit, but it
wasn't created yet, and I believe we discussed what--if the affidavit
wasn't, I guess, successful--I don't know how you'd say legally--say
that legally--but what a deposition would be like, sitting at a table.
Q. I'll bet he never told you it would be like this, did he?
A. No.
Q. Did you try to contact the President after you left the meeting
with Mr. Carter?
A. Yes.
Q. And you reached Betty Currie?
A. Yes.
Q. And you told her to pass along to the President that you
wanted--it was important to talk with him?
A. Yes.
Q. You may have mentioned to her something about signing something?
A. Right; I might have.
Q. What response did you get from that telephone call?
A. Uh, Betty called me back, maybe an hour or two later, and put
the President through.
Q. And what was that conversation?
A. I know I've testified to this, and it was sort of two-fold. On
the one hand, I was, uh, upset, so I was sort of in a pissy mood and a
little bit contentious. Uh, but more related to the case, uh, I had
concerns that from questions Mr. Carter had asked me about how I got my
job at the Pentagon and transferred and, and, uh, I was concerned as to
how to answer those questions because those questions involved naming
other people who I thought didn't like me at the White House, and I was
worried that those people might try and--just to get me in trouble
because they didn't like me--so that if they were then--I mean, I had
no concept of what exactly happens in these legal proceedings, and I
thought, well, maybe if I say Joe Schmo helped me get my job, then
they'd go interview Joe Schmo, and so, if Joe Schmo said, ``No, that's
not true,'' because he didn't like me, then I didn't want to get in
trouble. So--
Q. Did there appear to be a question possibly about how you--how
you got the job at the Pentagon? Did you fear for some questions there?
A. Yes. I think I tend to be sort of a detail-oriented person, and
so I think it was, uh, my focusing on the details and thinking
everything had to be a very detailed answer and not being able to kind
of step back and look at how I could say it more generally. So that's
what concerned me.
Q. Mm-hmm. This--
A. Because clearly, I mean, I would have had to say, ``Gee, I was
transferred from the Pentagon because I had this relationship that I'm
not telling you about with the President.'' So there was--there was
that concern for me there.
Q. And what did the President tell you that you could say instead
of saying something like that?
A. That the people in Legislative Affairs helped me get the job--
and that was true.
Q. Okay, but it was also true, to be complete, that they moved you
out into the Pentagon because of the relationship with the President?
A. Right.
Q. Did--did the subject of the affidavit come up with the
President?
A. Yes, towards the end of the conversation.
Q. And how did--tell us how that occurred.
A. I believe I asked him if he wanted to see a copy of it, and he
said no.
Q. Well, I mean, how did you introduce that into the subject--into
the conversation?
A. I don't really remember.
Q. Did he ask you, well, how's the affidavit coming or--
A. No, I don't think so.
Q. But you told him that you had one being prepared, or something?
A. I think I said--I think I said, you know, I'm going to sign an
affidavit, or something like that.
Q. Did he ask you what are you going to say?
A. No.
Q. And this is the time when he said something about 15 other
affidavits?
A. Correct.
Q. And tell us as best as you can recall what--how that--how that
part of the conversation went.
A. I think that was the--sort of the other half of his sentence as,
No, you know, I don't want to see it. I don't need to--or, I've seen 15
others.
It was a little flippant.
Q. In his answer to this proceeding in the Senate, he has indicated
that he thought he had--might have had a way that he could have you--
get you to file a--basically a true affidavit, but yet still skirt
these issues enough that you wouldn't be called as a witness.
Did he offer you any of these suggestions at this time?
A. He didn't discuss the content of my affidavit with me at all,
ever.
Q. But, I mean, he didn't make an offer that, you know, here's what
you can do, or let me send you over something that can maybe keep you
from committing perjury?
A. No. We never discussed perjury.
Q. On--well, how did that conversation end? Did you talk about
anything else?
A. I said goodbye very abruptly.
Q. The next day--well, on January the 6th--I'm not sure exactly
what day we are--1998, did you pick up a draft of the affidavit from
Mr. Carter?
A. Yes, I did.
Q. What did you do with that draft?
A. I read it and went through it.
Q. How did it look?
A. I don't really remember my reaction to it. I know I had some
changes. I know there's a copy of this draft affidavit that's part of
the record, but--
Q. Were portions of it false?
A. Incomplete and misleading.
Q. Did you take that affidavit to Mr. Jordan?
A. I dropped off a copy in his office.
Q. Did you have any conversation with him at that point or some
later point about that affidavit?
A. Yes, I did.
Q. And tell us about that.
A. I had gone through and had, I think, as it's marked--can I maybe
see? Isn't there a copy of the draft?
[Witness handed document.]
[Witness perusing document.]
The WITNESS: Thank you.
SENATOR DeWINE: Mr. Bryant, can you reference for the record at
this point?
MR. BRYANT: Okay.
SENATOR DeWINE: If you can.
MR. BRYANT: It would be--
MR. SCHIPPERS: 1229.
SENATOR DeWINE: 1229?
MR. SCHIPPERS: Yes.
SENATOR DeWINE: All right. Thank you.
BY MR. BRYANT:
Q. Okay. Have you had an opportunity to review the draft of your
affidavit?
A. I--yes.
Q. Okay. What--do you have any comment or response?
A. I received it. I made the suggested changes, and I believe I
spoke with Mr. Jordan about the changes I wanted to make.
Q. Did he have any comment on your proposed changes?
A. I think he said the part about Lewis & Clark College was
irrelevant. I'd have to see the--I don't believe it's in the final copy
in the affidavit, so--but I could be mistaken.
Q. At this point, of course, you had a lawyer, Mr. Carter, who was
representing your interest. Mr. Jordan was--I'm not sure if he--how you
would characterize him, but would it--would it be that you view Mr.
Jordan as, in many ways, Mr.--the President--if Mr. Jordan knew it, the
President knew it, or something of that nature?
A. I think I testified to something similar to that. I felt that, I
guess, that Mr. Jordan might have had the President's best interest at
heart and my best interest at heart, so that that was sort of maybe a--
some sort of a blessing.
Q. I think, to some extent, what you--what you had said was getting
Mr. Jordan's approval was basically the same thing as getting the
President's approval. Would you agree with that?
A. Yeah. I believe that--yes, I believe that's how I testified to
it.
Q. The fact that you assume that Mr. Jordan was in contact with the
President--and I believe the evidence would support that through his
own testimony that he had talked to the President about the signed
affidavit and that he had kept the President updated on the subpoena
issue and the job search--
A. Sir, I'm not sure that I knew he was having contact with the
President about this. I--I think what I said was that I felt that it
was getting his approval. It didn't necessarily mean that I felt he was
going to get a direct approval from the President.
I'm sorry to interrupt you.
Q. Oh, that's fine. At any time you need to clarify a point,
please--please feel free to do so.
Did--did--did you have any indication from Mr. Jordan that he--when
he discussed the signed affidavit with the President, they were
discussing some of the contents of the affidavit? Did you have--
A. Before I signed it or--
Q. No; during the drafting stage.
A. No, absolutely not--either/or. I didn't. No, I did not.
Q. Now, the changes that you had proposed, did Mr. Jordan agree to
those changes?
A. I believe so.
Q. And then you somehow reported those changes back to Mr. Carter
or to someone else?
A. No. I believe I spoke with Mr. Carter the next morning, before I
went in to see him, and that's when I--I believe that's--I dictated the
changes.
Q. Okay. Mr. Jordan did not relay the changes to Mr. Carter--you
did?
A. I know I relayed the changes, these changes to Mr. Carter.
Q. Specifically, the concerns that you had about--about the draft,
what did they include, the changes?
A. I think one of the--I think what concerned me--and I believe
I've testified to this--was--was in Number 6. Even just mentioning that
I might have been alone with the President, I was concerned that that
would give the Jones people enough ammunition to want to talk to me, to
think, oh, well, maybe if she was alone with him that--that he
propositioned me or something like that, because I hadn't--of course, I
mean, you remember that at this point, I had no idea the amount of
knowledge they had about the relationship. So--
Q. Did--Mr. Carter, I assume, made those changes, and then you
subsequently signed the affidavit?
A. We worked on it in his office, and then, yes, I signed the
affidavit.
Q. Is this the same day--
A. Yes.
Q. --at this point?
A. This was the 7th?
Q. Yes.
A. Correct.
Q. Did--did you take the signed--or a copy of the signed affidavit,
I should say--did you take a copy--did you keep a copy?
A. Yes, I did.
Q. Did you give it to anyone or give anyone else a copy?
A. No.
Q. Now, did you, the next day on the 8th, go to New York for some
interviews for jobs?
A. It was--it--I either went later on the 7th or on the 8th, but
around that time, yes.
Q. Was this a place that you had already interviewed?
A. Yes.
Q. And I assume this was at McAndrews and Forbes?
A. Yes.
Q. How did you feel that the interview went?
A. I--I know I characterized it in my grand jury testimony as
having not gone very well.
Q. Okay. I think you also mentioned it went very poorly, too. Does
that sound--does that ring a bell?
A. Sure.
Q. Why? Why would you so characterize it?
A. Well, as I've had a lot of people tell me, I'm a pessimist, but
also I--I wasn't prepared. I was in a waiting room downstairs at
McAndrews and Forbes, and--or at least, I thought it was a waiting
room--and Mr. Durnan walked into the room unannounced, and the
interview began. So I felt that I started on the wrong foot, and I just
didn't feel that I was as articulate as I could have been.
Q. Did you call Mr. Jordan after that?
A. Yes, I did.
Q. Did you express those same concerns?
A. Yes, I did.
Q. What did he say?
A. And this is a little fuzzy for me. I know that I had a few phone
calls with him in that day. I think in this call, he said, you know,
``Don't worry about it.'' I--my testimony is probably more complete on
this. I'm sorry.
Q. What--what other phone calls did you have with him that day?
A. I remember talking to--I know that at some point, he said
something about that he'd call the chairman, and then I think he said
just at some point not to worry. He was always telling me not to worry
because I always--I overreact a little bit.
Q. All total, how many calls did you have with him that day--your
best guess?
A. I have no idea.
Q. More than two?
A. I--I don't know.
Q. Can you think of any other subjects the two of you would have
talked about?
A. I don't think so.
Q. Did he, Mr. Jordan, tell you that he had talked to the chairman,
or Mr. Perelman, whatever his title is?
A. I'm sorry. I know I've testified to this. I don't--I think so.
Q. And you had--did you have additional interviews at this company
or a subsidiary?
A. Yes, I--well, I had with the sort of, I guess, daughter--
daughter company, Revlon. I had an interview with Revlon the next day.
Q. And you were offered a job?
A. Yes, I was.
Q. About the 9th or so? That would have been 2 days after the
affidavit?
A. Oh. Actually, no. I think I was offered a position, whatever
that Friday was. Oh, yes, the 9th. I'm sorry. You're right.
Oh, wait. It was either the 9th or the 13th--or the 12th--the 9th
or the 12th.
Q. Okay. Now, I'm--I was looking away. I'm confused.
A. That's okay. I--my interview was on the 9th, and I don't
remember right now--I know I've testified to this--whether I found out
that afternoon or it was on Monday that I got the informal offer.
Q. Mm-hmm.
A. So, if you want to tell me what I said in my grand jury
testimony, I'll be happy to affirm that.
Q. I think we may be talking about perhaps an informal offer. Does
that--on the 9th?
A. Yes. I know it was--okay. Was it on the--I don't--
Q. Yes.
A. --remember if it was the 9th or the 13th--
A. Okay.
Q. --but I know Ms. Sideman called me to extend an informal offer,
and I accepted.
Q. Okay. Now, in regard to the affidavit--do you still have your
draft in front of you?
A. Yes, sir.
Q. In paragraph number 3, you say: ``I can not fathom any reason--
fathom any reason why--that the plaintiff would seek information from
me for her case.''
A. Yes, sir.
Q. Did Mr. Carter at all go into the gist of the Paula Jones
lawsuit, the sexual harassment part of it, and tell you what it was
about?
A. I think I knew what it was about.
Q. All right. And then you indicated that you didn't like the part
about the doors, being behind closed doors, but on the sexual
relationship, paragraph 8, the first sentence, ``I've never had a
sexual relationship with the President''--
A. Mm-hmm.
Q. --that's not true, is it?
A. No. I haven't had intercourse with the President, but--
Q. Was that the distinction you made when you signed that
affidavit, in your own mind?
A. That was the justification I made to myself, yes.
Q. Let me send you the final affidavit. It might be a little easier
to work from--
A. Okay.
Q. --than the--than the original.
MR. BRYANT: Do we have all the--1235.
[Witness handed document.]
SENATOR DeWINE: Congressman?
MR. BRYANT: Yes.
SENATOR DeWINE: We're down to 3 minutes on the tape. Would now be a
good time to have him switch tapes and then we'll go right back in?
MR. BRYANT: Okay, that would be fine.
SENATOR DeWINE: I think we'll hold right at the table, and we'll
get the tapes switched.
THE VIDEOGRAPHER: Okay, we will do that now.
This marks the end of Videotape Number 2 in the deposition of
Monica S. Lewinsky.
We are going off the record at 14:31 hours.
[Recess.]
THE VIDEOGRAPHER: This marks the beginning of Videotape Number 3 in
the deposition of Monica S. Lewinsky. The time is 14:44 hours.
SENATOR DeWINE: We are back on the record.
Let me advise counsel that you have used 3 hours and 2 minutes.
Congressman Bryant, you may continue.
MR. BRYANT: Thank you, sir.
BY MR. BRYANT:
Q. Ms. Lewinsky, let me just follow up on some points here, and
then I'll move toward the conclusion of my direct examination very,
very quickly, I hope.
In regard to the affidavit--I think you still have it in front of
you--the final copy of the affidavit--I wanted to revisit your answer
about paragraph 8--
A. Yes, sir.
Q. --and also refer you to your grand jury testimony of August the
6th. This begins on--actually, it is on page 1013 of the--it should be
the Senate record, in the appendices, but it's your August 6th, 1998,
grand jury testimony.
And it's similar to the--my question about paragraph 8 about the
sexual relationship-- and I notice you--you now carve out an exception
to that by saying you didn't have intercourse, but I would direct your
attention to a previous answer and ask if you can recall being asked
this question in your grand jury testimony and ask--giving the answer--
the question is: ``All right. Let me ask you a straightforward
question. Paragraph 8, at the start, says, quote, 'I have never had a
sexual relationship with the President,' unquote. Is that true?,'' and
your answer is, ``No.''
Now, do you have any comment about why your answer still would not
be no, that that is not a true statement in paragraph 8?
A. I think I was asked a different question.
Q. Okay.
A. My recollection, sir, was that you asked me if that was a lie,
if paragraph 8 was--I--I'm not trying to--
Q. Okay. Well, if--if I ask you today the same question that was
asked in your grand jury, is your statement, quote, ``I have never had
a sexual relationship with the President,'' unquote, is that a true
statement?
A. No.
Q. Okay, that's good.
Now, also in paragraph 8, you mention that there were occasions
after you left--I think it looks like the--the last sentence in
paragraph 8, ``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 United States Department of
Defense, where I was working at the time,'' period--actually the last
sentence, ``There were other people present on those occasions.'' Now,
that also is not a truthful statement; is that correct?
A. It--I think I testified that this was misleading. It's
incomplete--
Q. Okay. It's not a truthful statement?
A. --and therefore, misleading.
Well, it--it is true; it's not complete.
Q. Okay. All right. Now, I will accept that.
A. Okay. Thank you.
Q. Thank you.
Going back to the gift retrieval of December the 28th, I want to be
clear that we're on the same sheet of music on this one. As I
understand, there's no doubt in your mind that Betty Currie called you,
initiated the call to you to pick up the gifts? She--
A. That's how I remember this event.
Q. And you went through that process, and at the very end, you were
sitting out in the car with her, with a box of gifts, and it was only
at that time that you asked her to keep these gifts for you?
A. I don't think I said ``gifts.'' I don't--
Q. Or keep this package?
A. I think I said--gosh, was it in the car that I said that or on
the phone? I think it was in the car. I--I'm--I don't know if that
makes a difference.
Q. But this was at the end of a process that Betty Currie had
initiated by telephone earlier that day to come pick up something that
you have for her?
A. Yes.
Q. Okay. Now, were you ever under the impression from anything that
the President said that you should turn over all the gifts to the Jones
lawyers?
A. No, but where this is a little tricky--and I think I might have
even mentioned this last weekend--was that I had an occasion in an
interview with one of the--with the OIC--where I was asked a series of
statements, if the President had made those, and there was one
statement that Agent Phalen said to me--I--there were--other people,
they asked me these statements--this is after the President testified
and they asked me some statements, did you say this, did you say this,
and I said, no, no, no. And Agent Phalen said something, and I think it
was, ``Well, you have to turn over whatever you have.'' And I said to
you, ``You know, that sounds a little bit familiar to me.''
So that's what I can tell you on that.
Q. That's in the 302 exam?
A. I don't know if it's in the 302 or not, but that's what
happened.
Q. Uh-huh.
A. Or, that's how I remember what happened.
Q. Okay. And your response to the question in the deposition that I
just asked you--were you ever under the impression from anything the
President said that you should have--that you should turn over all the
gifts to the Jones lawyers--your answer in that deposition was no.
A. And which date was that, please?
Q. The deposition was August the 26th.
A. Oh, the 26th.
Q. Yes.
A. It might have been after that, or maybe it was--I don't--
Q. Okay. I wanted to ask you, too, about a couple of other things
in terms of your testimony. Regarding the affidavit--and this appears
to be, again, grand jury testimony--
A. Sir, do you have a copy that I could look at if you're going
to--
Q. Sure. August, the August 6th--233--it's the--it's this page
here.
While we're looking at that, let me ask you a couple other things
here. I wanted to ask you--I talked to you a little bit about the
President today and your feelings today that persist that you think
he's a good President, and I assume you think he's a very intelligent
man?
A. I think he's an intelligent President.
[Laughter.]
MR. BRYANT: Okay. Thank goodness, this is confidential; otherwise,
that might be the quote of the day. I know we won't see that in the
paper, will we?
BY MR. BRYANT:
Q. Referring to January the 18th, 1998, the President had a
conversation with Betty Currie, and he made five statements to her. One
was that ``I was never really alone with Monica; right?'' That's one.
That's not true, is it, that ``I was never alone with''--
A. Sir, I was not present for that conversation. I don't feel
comfortable--
Q. Let me ask you, though--I realize none of us were there--but
that statement, ``I was never really alone with Monica; right?''--that
was not--he was alone with you on many occasions, was he not?
A. I--I'm not trying to be difficult, but I feel very uncomfortable
making judgments on what someone else's statement when they're defining
things however they want to define it. So if you--if you ask me,
Monica, were you alone with the President, I will say yes, but I'm not
comfortable characterizing what someone else says--
Q. Okay.
A. --passing judgment on it. I'm sorry.
Q. Were you--was Betty Currie always with you when the President
was with you?
A. Betty Currie was always at the White House when I went to see
the President at the White House after I left working at the White
House.
Q. But was--at all times when you were alone with the President,
was Betty Currie always there with you?
A. Not there in the room.
Q. Okay. Did--did--did you come on to the President, and did he
never touch you physically?
A. I guess those are two separate questions, right?
Q. Yes, they are.
A. Did I come on to him? Maybe on some occasions.
Q. Okay.
A. Not initially.
Q. Okay. Not initially.
A. I--
Q. Did he ever--did he ever touch you?
A. Yes.
Q. Okay. Could Betty Currie see and hear everything that went on
between the two of you all the time?
A. I can't answer that. I'm sorry.
Q. As far as you know, could she see and hear everything that went
on between the two of you?
A. Well, if I was in the room, I couldn't--I--I couldn't be in the
room and being able to see if Betty Currie could see and hear what
was--
Q. I think I--
MR. STEIN: Wouldn't it be a little speedier--if I may make this
observation, you have her testimony; you have the evidence of--
SENATOR DeWINE: Counsel, is this an objection?
MR. STEIN: I just would ask him to draw whatever inferences there
were to speed this up.
SENATOR DeWINE: I'll ask him to rephrase the question.
MR. BRYANT: I would just stop at that point. I think, uh, that's
enough of that.
BY MR. BRYANT:
Q. The President also had conversations with Mr. Blumenthal on
January the 21st, 1998, and indicated that you came on to the President
and made a sexual demand. At the initial part of this, did you come on
to the President and make a sexual demand on the President?
A. No.
Q. At the initial meeting on November the 15th, 1995, did he ever
rebuff you from these advances, or from any kind of--
A. On November 15th?
Q. November 15th. Did he rebuff you?
A. No.
Q. Did you threaten him on November 15th, 1995?
A. No.
Q. On January 23rd, 1998, the President told John Podesta that--
many things. I'll--I'll withdraw that. Let me go--kind of wind this
down. I'd like to save some time for redirect.
You've indicated that with regard to the affidavit and telling the
truth, there is some testimony I'd like to read you from your
deposition that we started out--August the 6th--I'm sorry--the grand
jury, August 6th, 1998--
MS. MILLS: What internal page number?
MR. SCHIPPERS: 1021 internal, 233.
MR. BRYANT: Okay, we need to get her a copy.
MR. SCHIPPERS: Do you have the August 6th still over there?
THE WITNESS: I can share with Sydney--if you don't mind.
[Witness perusing document.]
BY MR. BRYANT:
Q. Beginning--do you have page 233--
A. Uh-huh.
Q. --okay--beginning at line 6--
A. Okay.
Q. --it reads--would you prefer to read that? Why don't you read--
A. Out loud?
Q. Would you read it out loud?
A. Okay.
Q. Through line 16--6 through 16. This is your answer.
A. ``Sure. Gosh. I think to me that if--if the President had not
said the Betty and letters cover, let's just say, if we refer to that,
which I'm talking about in paragraph 4, page 4, I would have known to
use that. So to me, encouraging or asking me to lie would have--you
know, if the President had said, Now, listen, you'd better not say
anything about this relationship, you'd better not tell them the truth,
you'd better not--for me, the best way to explain how I feel what
happened was, you know, no one asked or encouraged me to lie, but no
one discouraged me, either.''
Q. Okay. That--that statement, is that consistent in your view with
what you've testified to today?
A. Yes.
Q. Okay. Look at page 234, which is right below there.
A. Okay. [Perusing document.]
Q. Beginning with the--your answer on line 4, and read down, if you
could, to line 14--4 through 14.
A. ``Yes and no. I mean, I think I also said that Monday that it
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 be humiliated in front of the
entire world about what we've done, which I would have fought him on,
probably. That was different. And by him not calling me and saying
that, you know, I knew what that meant. So I, I don't see any
disconnect between paragraph 10 and paragraph 4 on the page. Does that
answer your question?''
Q. Okay. Now, has that--has your testimony today been consistent
with that provision?
A. I--I think so.
Q. Okay.
A. I've intended for my testimony to be consistent with my grand
jury testimony.
Q. Okay. And one final read just below that, line 16 through 24.
A. ``Did you understand all along that he would deny the
relationship also?''
``Mm-hmm, yes.''
Q. And 19 through 24--the rest of that.
A. Oh, sorry.
``And when you say you understood what it meant when he didn't say,
Oh, you know you must tell the truth, what did you understand that to
mean?''
``That, that, as we had on every other occasion and in every other
instance of this relationship, we would deny it.''
MR. BRYANT: Okay.
Could we have just--go off the record here a minute?
SENATOR DeWINE: Sure. Let's go off the record at this point.
THE VIDEOGRAPHER: We're going off the record at 1459 hours.
[Recess.]
THE VIDEOGRAPHER: We're going back on the record at 1504 hours.
SENATOR DeWINE: Manager Bryant, you may proceed.
MR. BRYANT: Thank you, Senator.
BY MR. BRYANT:
Q. Ms. Lewinsky, I have just a few more questions here.
With regard to the false affidavit, you do admit that you filed an
untruthful affidavit with the court in the Jones case; is that correct?
A. I think I--I--yes--I mean, it was incomplete and misleading,
and--
Q. Okay. With regard to the cover stories, on December the 6th, you
and the President went over cover stories, and in the same conversation
he encouraged you to file an affidavit in the Jones case; is that
correct?
A. No.
MS. SELIGMAN: I think that misstates the record.
BY MR. BRYANT:
Q. All right. On December the 17th. Let's try December 17; all
right?
A. Okay.
Q. You and the President went over cover stories--that's the
telephone conversation--
A. Okay--I'm sorry--can you repeat the question?
Q. Okay. On December 17th, you and the President went over cover
stories in a telephone conversation.
A. Correct.
Q. And in that same telephone conversation, he encouraged you to
file an affidavit in the Jones case?
A. He suggested I could file an affidavit.
Q. Okay. With regard to the job, between your meeting with Mr.
Jordan in early November and December the 5th when you met with Mr.
Jordan again, you did not feel that Mr. Jordan was doing much to help
you get a job; is that correct?
MS. SELIGMAN: Objection. Misstates the record.
BY MR. BRYANT:
Q. Okay. You can answer that.
A. It--
Q. Let me repeat it. Between your meeting with Mr. Jordan in early
November and December the 5th when you met with Mr. Jordan again, you
did not feel that Mr. Jordan was doing much to help you get a job; is
that correct?
MS. SELIGMAN: Same objection.
THE WITNESS: Do you mean when I met with him again on December
11th? I don't--
MR. BRYANT: The--
THE WITNESS: --I didn't meet with Mr. Jordan on December 5th. I'm
sorry--
MR. BRYANT: Okay.
THE WITNESS: --am I misunderstanding something?
MR. BRYANT: We're getting our numbers wrong here.
THE WITNESS: Okay.
BY MR. BRYANT:
Q. Between your meeting with Mr. Jordan in early November and
December the 11th when you met with Mr. Jordan again, you did not feel
that Mr. Jordan was doing much to help you get a job; is that correct?
A. I hadn't seen any progress.
Q. Okay. After you met with Mr. Jordan in early December, you began
to interview in New York and were much more active in your job search;
correct?
A. Yes.
Q. In early January, you received a job offer from Revlon with the
help of Vernon Jordan; is that correct?
A. Yes.
Q. Okay. With regard to gifts, regarding the gifts that were
subpoenaed in the Jones case, you are certain that Ms. Currie called
you and that she understood you had something to give her; is that
correct?
A. That's my recollection.
Q. You never told Ms. Currie to come pick up the gifts or that
Michael Isikoff had called about them; is that correct?
A. I don't recall that.
Q. Regarding stalking, you never stalked the President; is that
correct?
A. I--I don't believe so.
Q. Okay. You and the President had an emotional relationship as
well as a physical one; is that right?
A. That's how I'd characterize it.
Q. Okay. He never rebuffed you?
A. I--I think that gets into some of the intimate details of--no,
then, that's not true. There were occasions when he did.
Q. Uh-huh. Okay. But he never rebuffed you initially on that first
day, November the 15th, 1995?
A. No, sir.
Law Offices of
Plato Cacheris,
Washington, DC, February 2, 1999.
Re February 1, 1999, Monica S. Lewinsky deposition transcript.
Dear Ms. Jardim and Mr. Bitsko: Upon our review of the videotape
and transcript of Monica S. Lewinsky's deposition transcript, we have
noted the following errors or omissions:
------------------------------------------------------------------------
Page Line Corrections
------------------------------------------------------------------------
19 14 The oath and affirmation are not transcribed.
24 9 ``second . . .'' should replace ``2d''
44 6 Comments by counsel are not transcribed.
61 11-13 Delete quotation marks. These are not direct quotes
in this instance.
62 23 ``town'' should replace ``down''
63 17 ``called'' should replace ``found''
63 23 ``after Thanksgiving'' should follow ``back.''
63 24 Insert following line 23:
A: Yes I did.
Q: What did he tell you then?
65 21 ``tchotchke'' should replace ``chochki''
65 24 ``on'' should replace ``home''
66 20 The line should read:
``see if I could see the President. I apologize,''
not
``see if I could see the President and apologize.''
75 1 ``needed'' should replace ``need''
90 5 ``the'' should replace ``some''
116 16 ``said'' should precede ``list''
128 9 ``that's'' should replace ``of''
154 5 Delete quotation marks.
156 6 ``Seidman'' should replace ``Sideman''
161 15 ``Fallon'' should replace ``Phalen''
------------------------------------------------------------------------
Provided these changes are made, we will waive signature on behalf
of Ms. Lewinsky.
We understand from Senate Legal Counsel that copies of this letter
will be made available to the parties and Senate.
Thank you for your assistance.
Sincerely,
Plato Cacheris.
Preston Burton.
Sydney Hoffmann.
______
In the Senate of the United States Sitting for the Trial of the
Impeachment of William Jefferson Clinton, President of the United
States
excerpts of video deposition of vernon e. jordan, jr.
(Tuesday, February 2, 1999, Washington, D.C.)
SENATOR THOMPSON: All right. If there are no further questions from
the parties or counsel for the witness, I'll now swear in the witness.
Mr. Jordan, will you please raise your right hand?
Do you, Vernon E. Jordan, Jr., swear that the evidence you shall
give in this case now pending between the United States and William
Jefferson Clinton, President of the United States, shall be the truth,
the whole truth, and nothing but the truth, so help you, God?
THE WITNESS: I do.
Whereupon, VERNON E. JORDAN, JR., was called as a witness and,
after having been first duly sworn by Senator Fred Thompson, was
examined and testified as follows:
SENATOR THOMPSON: All right. The House Managers may begin their
questioning of the witness.
MR. HUTCHINSON: Thank you, Senator Thompson and Senator Dodd.
examination by house managers
BY MR. HUTCHINSON:
Q. Good morning, Mr. Jordan. For the record, would you state your
name, please?
A. Good morning, Congressman. My name is Vernon E. Jordan, Jr.
Q. And, Mr. Jordan, we have not had the opportunity to meet
previously, is that correct?
A. That is correct.
Q. And I do appreciate--I have met your counsel, Mr. Hundley, in
his office, and so I've looked forward to this opportunity to meet you.
Now, you have--
A. I can't say that the feeling is mutual.
[Laughter.]
BY MR. HUTCHINSON:
Q. I certainly understand.
You have testified, I believe, five times previously before the
Federal grand jury?
A. That is correct.
Q. And so 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.
Prior to coming in today, though, have you had the opportunity to
review your prior testimony in those five appearances before the grand
jury?
A. I have done some preparation, Congressman.
Q. And let me start with the fact that the oath that you took today
is the same as the oath that you took before the Federal grand jury?
A. I believe that's correct.
Q. And, Mr. Jordan, what is your profession?
A. I am a lawyer.
Q. And where do you practice your profession?
A. I am a senior partner at the law firm of Akin, Gump, Strauss,
Hauer & Feld, here in Washington, D.C., with offices in Texas,
California, Pennsylvania and New York, three offices in Europe, London,
Brussels and Moscow.
Q. And how long have you been a senior partner?
A. I have been a senior partner--well, I didn't start out as a
senior partner. I started out as a partner, and at some point--I don't
know when, but not long thereafter I was elevated to this position of
senior partner.
Q. And what type of law do you practice?
A. I am a corporate international generalist at Akin, Gump.
Q. And does Akin, Gump have about 800 lawyers?
A. We have about 800 lawyers, yes.
Q. Which is an incredible number for lawyers from someone who
practiced law in Arkansas.
How do all of those lawyers--
A. We have some members of our law firm who are from Arkansas, so
it's not unusual for them.
Q. And how is it that you are able to obtain enough business for
800 lawyers?
A. I don't think that's my entire responsibility. I'm just one of
800 lawyers, and that is what I do in part, but I'm not alone in that
process of making rain.
Q. When you say ``making rain,'' that's the terminology of being a
rainmaker?
A. I think even in Arkansas, you understand what rainmaking is.
Q. We've read Grisham books.
And so, when you say making rain or being a rainmaker, that is to
bring in business so that you can keep the lawyers busy practicing law?
A. Well, that is--that is part and parcel of the practice of law.
Q. And do you bill by the hour?
A. I do not.
Q. And I understand you used to, but you do not anymore?
A. I graduated.
Q. A fortunate graduation.
And when the--when you did bill by the hour, what was your billable
rate the last time you had to do that?
A. I believe my billable rate at the last time was somewhere
between 450 and 500 an hour.
Q. Now, would you describe--
A. Not bad for a Georgia boy. I'm from Georgia. You've heard of
that State, I'm sure.
Q. It's probably not bad from Washington standards.
Would you describe the nature of your relationship with President
Clinton?
A. President Clinton has been a friend of mine since approximately
1973, when I came to your State, Arkansas, to make a speech as
president of the National Urban League about race and equal opportunity
in our Nation, and we met then and there, and our friendship has grown
and developed and matured and he is my friend and will continue to be
my friend.
Q. And just to further elaborate on that friendship, it's my
understanding that he and his--and the First Lady has had Christmas Eve
dinner with you and your family for a number of years?
A. Every year since his Presidency, the Jordan family has been
privileged to entertain the Clinton family on Christmas Eve.
Q. And has there been any exceptions in recent years to that?
A. Every year that he has been President, he has had, he and his
family, Christmas Eve with my family.
Q. And have you vacationed together with the Clinton family?
A. Yes. I think you have seen reels of us playing golf and having
fun at Martha's Vineyard.
Q. And so you vacation together, you play golf together on a semi-
regular basis?
A. Whenever we can. We've not been doing it recently, for reasons
that I think are probably very obvious to you, Counsel.
Q. Well, explain that to me.
A. Just what I said, for a time, I was going before the grand jury,
and under the advice of counsel and I'm sure under advice of the
President's counsel, it was thought best that we not play golf
together.
So, from the time that I first went to the grand jury, I don't
think--we have not played golf this year, unfortunately, together.
Q. Since you--I think your first appearance at the grand jury was
March 3 of '98. Then you went March 5, and then in May, I believe you
were two times before the grand jury and then one in June of '98.
Since your last testimony before the grand jury in June of '98,
have you been in contact with the President of the United States?
A. Yes, I have.
Q. And are these social occasions or for business purposes?
A. Social occasions. I was invited to the Korean State Dinner. I
forget when that was. I think that was the first time I was in the
White House since Martin Luther King Day of last year.
I saw the President at Martha's Vineyard. I was there when he got
off Air Force One to greet him and welcome him to--to the Vineyard, and
I was at the White House for one of the performances about music. The
Morgan State Choir sang, and so I've been to the White House only for
social occasions in the last year since Martin Luther King's birthday,
I believe.
Q. Have you had any private conversations with the President?
A. Yes, I have, as a matter of fact.
Q. And has this been on the telephone or in person?
A. I've talked to him on the telephone, and I talked to him at the
Vineyard. He was at my house on Christmas Eve. There were a lot of
people around, but, yes, I've talked to the President.
Q. And did you discuss your testimony before the grand jury or his
testimony before the grand jury?
A. I did not.
Q. There was one reference that he made in his Federal grand jury
testimony, and I'll refer counsel, if they would like. It was on page
77 of the President's testimony in his appearance before the grand jury
on August 17th.
And he referenced discussions with you, and he said, ``I think I
may have been confused in my memory because I've also talked to him on
the phone about what he said, about whether he had talked to her or met
with her. That's all I can tell you,'' and I believe the ``her'' is a
reference to Ms. Lewinsky.
And it appeared to me from reading that, that there might have been
some conversations with you by the President, perhaps in reference to
your grand jury testimony or your knowledge of when and how you talked
to Ms. Lewinsky.
A. If I understand your question about whether or not the President
of the United States and I talked about my testimony before the grand
jury or his testimony before the grand jury, I can say to you
unequivocally that the President of the United States and I have not
discussed our testimony. I was advised by my counsel, Mr. Hundley, not
to discuss that testimony, and I have learned in this process, Mr.
Hutchinson, to--to take the advice of counsel.
Q. I would certainly agree that that is good counsel to take, but
going back to the question--and I will try to rephrase it because it
was a very wordy question that I asked you--and it's clear from your
testimony that you have not discussed your grand jury testimony--
A. That is correct.
Q. --but did you, subsequent to your last testimony before the
grand jury, talk to the President in which you discussed conversation
that you have had with Monica Lewinsky?
A. I have not discussed a conversation that I have had with Monica
Lewinsky with the President of the United States.
Q. And have you had any discussions about Monica Lewinsky with the
President of the United States since your last testimony before the
grand jury?
A. I have not.
Q. Now, going back to your relationship with the President, you
have been described as a friend and advisor to the President. Is that a
fair terminology?
A. I think that's fair.
Q. And in the advisor capacity, had you served as co-chairman of
the Clinton-Gore transition team in 1992?
A. I believe I was chairman.
Q. That is an important distinction.
And have you served in any other official or semi-official
capacities for this administration?
A. I have not, except that I was asked by the President to lead the
American delegation to the inauguration of President Li in Taiwan, and
that was about as official as you can get, but beyond that, I have
not--not had any official capacity.
For a very brief moment, very early in the administration, I was
appointed to the Foreign Intelligence Advisory Committee, and I went to
one meeting and stayed half that meeting, went across the street and
told Bruce Lindsey that that was not for me.
Q. Now, let's move on. After we've established to a certain degree
your relationship with the President, let's move on to January 20th of
1998, and just to put that in clearer terms, this is a Tuesday after
the January 17 deposition of President Clinton in the Paula Jones civil
rights case. Do you recall that time frame?
A. [Nodding head up and down.]
Q. This is in the afternoon of January 20th, again, after the
President's deposition. You contacted Mr. Howard Gittis, who I believe
is General Counsel of McAndrews & Forbes Holdings?
A. Howard Gittis is Vice Chairman of McAndrews, Forbes, and he is
not the General Counsel. He is a lawyer, but he is not the General
Counsel.
Q. And what was the purpose of you contacting Mr. Howard Gittis on
January 20th?
A. If I talked to Howard Gittis on the 20th, I don't recall exactly
what my conversation with Howard Gittis was about. I think it was a
telephone call, maybe.
Q. And that's difficult. Let me see if I can't help you in that
regard.
A. Right.
Q. Was the purpose of that call with Mr. Gittis to arrange
breakfast the next morning on January 21st?
A. Yeah. I was in New York, and I did call Mr. Gittis and say--and
as I remember, I had breakfast with him on the 21st, I believe. Yes, I
did.
Q. And this is a breakfast that you had set up?
A. Yes.
Q. And what was the reason you made the decision to request a
breakfast meeting with Mr. Gittis?
A. Yes. As I remember, I had gotten a telephone call from David
Bloom at 1 o'clock in the morning at the St. Regis Hotel about the
matter that was about to break having to do with the entire Lewinsky
matter, and I had not at any time discussed the Lewinsky matter with--
with Howard Gittis. And so I had breakfast with him to tell him that
reporters were calling, that this would obviously involve Revlon, which
had responded to my--my efforts to find Ms. Lewinsky employment, and so
Howard Gittis is a friend of mine. Howard Gittis is a fellow board
member with me at Revlon. He is the Vice Chairman of McAndrews &
Forbes, and I thought it--I thought I had--it was incumbent upon me to
stop and say, ``Listen, there's trouble a-brewing.''
Q. And just--you've mentioned McAndrews & Forbes and Revlon.
McAndrews & Forbes, am I correct, is the parent company of--
A. It's the holding company.
Q. The holding company of Revlon and presumably other companies.
And you sit on the board of McAndrews & Forbes?
A. I do not. I sit on the board of Revlon.
Q. All right. And that is a position that brings you an annual
salary--
A. There is a director's fee.
Q. You receive a director's fee, and in addition, your law firm
receives--from business from--
A. We do--
Q. --Revlon?
A. We do. We do business. We've represented Revlon, and we
represented Revlon before I was elected a director.
Q. And you mention that things were breaking that you felt like you
needed to advise Mr. Gittis concerning. At the time that you made the
arrangements for the breakfast on January 21st, had you become aware of
the Drudge Report?
A. Yes, I had.
Q. And you had had lunch with Bruce Lindsey on January 20th?
A. No. I don't think it was on January--it was on Sunday. No, that
was not the 20th.
Q. And during that luncheon, did you become aware of the Drudge
Report--
A. That is correct.
Q. --and receive a copy of it?
A. That is correct.
Q. And that was from Bruce Lindsey?
A. That is correct.
Q. And that Drudge Report, did it mention your name?
A. I don't think so, but I don't remember.
Q. Was there some news stories that had mentioned your name in
reference to Ms. Lewinsky and the President?
A. I believe that my name has been an integral part of this process
from the beginning.
Q. And did you in fact have the breakfast meeting with Mr. Gittis?
A. Yes, I did.
Q. And what information did you convey to Mr. Gittis concerning Ms.
Lewinsky at that breakfast meeting?
A. I just simply said that the press was calling about Ms.
Lewinsky; that while I had not dealt with him, I had dealt with Richard
Halperin, I had dealt with Ronald Perelman. I had not dealt with him,
but that he ought to know and that I was sorry about this.
And I also said that it would probably be even more complicated
because early on I had referred Webb Hubbell to them to be hired as
counsel.
Q. And I want to get to that in just a moment, but you indicated
that you said you were sorry. Were you referring to the problems that
this might create for the company?
A. Well, I was obviously concerned. I am a director. I am their
counsel. They're my friends. And publicity was breaking. I thought I
had some responsibility to them to give them a heads-up as to what was
going on.
Q. Now, is it true that your efforts to find a job for Ms. Lewinsky
that you referenced in that meeting with Mr. Gittis--were your efforts
carried out at the request of the President of the United States?
A. There is no question but that through Betty Currie, I was acting
on behalf of the President to get Ms. Lewinsky a job. I think that's
clear from my grand jury testimony.
Q. Okay. And I just want to make sure that that's firmly
established. And in reference to your previous grand jury testimony,
you indicated, I believe, on May 28th, 1998, at page 61, that ``She''--
referring to Betty Currie--''was the one that called me at the behest
of the President.''
A. That is correct, and I think, Congressman, if in fact the
President of the United States' secretary calls and asks for a request
that you try to do the best you can to make it happen.
Q. And you received that request as a request coming from the
President?
A. I--I interpreted it as a request from the President.
Q. And then, later on in June of '98 in the grand jury testimony at
page 45, did you not reference or testify that ``The President asked me
to get Monica Lewinsky a job''?
A. There was no--there was no question but that he asked me to help
and that he asked others to help. I think that is clear from
everybody's grand jury testimony.
Q. And just one more point in that regard. In the same grand jury
testimony, is it correct that you testified that ``He''--referring to
the President--''was the source of it coming to my attention in the
first place''?
A. I may--if that is--if you--if it's in the--
Q. It's at page 58 of the grand jury--
A. I stand on my grand jury testimony.
Q. All right. Now, during your efforts to secure a job for Ms.
Lewinsky, I think you mentioned that you talked to Mr. Richard
Halperin.
A. Yes.
Q. And he is with McAndrews & Forbes?
A. Yes.
Q. And you also at one point talked to Mr. Ron Perelman; is that
correct?
A. I made a call to Mr. Perelman, I believe, on the 8th of January.
Q. And he is the--
A. He is the chairman/CEO of McAndrews Forbes. He is a majority
shareholder in McAndrews Forbes. This is his business.
Q. Now, at the time that you requested assistance in obtaining Ms.
Lewinsky a job, did you advise Mr. Perelman or Mr. Halperin of the fact
that the request was being carried out at the request of the President
of the United States?
A. I don't think so. I may have.
Q. Well, the first answer you gave was ``I don't think so.'' Now,
in fact, you did not advise either Mr. Perelman or Mr. Halperin of that
fact because am I correct that Mr. Perelman--or, excuse me, Mr.
Gittis--expressed some concern that Revlon was never advised of that
fact?
A. Then, uh, I cannot say, I guess, precisely that I told that ``I
am doing this for the President of the United States.''
I do believe, on the other hand, that given the fact that she was
in the White House, given the fact that she had been a White House
intern, I would not be surprised if that was their understanding.
Q. Well, in your conversation with Mr. Halperin.
A. Yes--I'm certain I did not say that to Richard Halperin.
Q. Okay. So there's no question that you did not tell Mr. Halperin
that you were acting at the request of the President?
A. I'm fairly certain I did not.
Q. And in your conversation with Mr. Perelman, did you indicate to
him that you were calling--or you were seeking--employment for Ms.
Lewinsky at the request of the President?
A. Yes--I don't think that I, that I made that explicit in my
conversation with Mr. Perelman, and I'm not sure I thought it necessary
to say ``This is for the President of the United States.''
By the same token, I would have had no hesitance in doing that.
Q. Now, at the time that you had called Mr. Perelman, which I
believe you testified was in January of '98--
A. That's right.
Q. --I think you said January 8th--
A. Right.
Q. --you were aware at that time, were you not, that Ms. Lewinsky
had received a subpoena to give a deposition in the Jones versus
Clinton case?
A. That is correct.
Q. At the time that you talked to Mr. Perelman requesting his
assistance for Monica Lewinsky, did you advise Mr. Perelman of the fact
that Ms. Lewinsky was under subpoena in the Jones case?
A. I did not.
Q. And when you--did Mr. Perelman, Mr. Gittis or Mr. Halperin ever
express to you disappointment that they were not told of two facts--
either of these two facts--one, that Ms. Lewinsky was being helped at
the request of the President; and secondly, that she was known by you
and the President to be under subpoena in that case?
A. No.
Q. Now, you are on the board of directors of Revlon.
A. I am.
Q. And how long have you been on the board of Revlon?
A. I forget. Ten years, maybe.
Q. And as a member of the board of directors, do you not have a
fiduciary responsibility to the company?
A. I do.
Q. And how would you define a fiduciary responsibility?
A. I define my fiduciary responsibility to the company about
company matters.
Q. And how would you define fiduciary responsibility in reference
to company matters?
A. Anything that has to do with the company, that I believe in the
interest of the company, I have some fiduciary responsibility to
protect the company, to help the company in any way that I--that is
possible.
Q. And is fiduciary responsibility sometimes considered a trust
relationship in which you owe a degree of trust and responsibility to
someone else?
A. I think--I think that ``trust'' and ``fiduciary'' are probably
synonymous.
Q. Okay. Do you believe that you were acting in the company's
interest or the President's interest when you were trying to secure a
job for Ms. Lewinsky?
A. Well, what I knew was that the company would take care of its
own interest. This is not the first time that I referred somebody, and
what I know is, is that if a person being referred does not meet the
standards required for that company, I have no question but that that
person will not be hired. And so the referral is an easy thing to do;
the judgment about employment is not a judgment as a person referring
that I make. But I do have confidence in all of the companies on whose
boards that I sit that, regardless of my reference, that as to their
needs and as to their expectations for their employees that they will
make the right decisions, as happened in the American Express
situation.
American Express called and said: We will not hire Ms. Lewinsky. I
did not question it, I did not challenge it, because they understood
their needs and their needs in comparison to her qualifications. They
made a judgment. Revlon, on the other hand, made another judgment.
I am not the employer, I am the referrer, and there is a major
difference.
Q. Now, going back to what you knew as far as information and what
you conveyed to Revlon, you indicated that you did not tell Mr.
Halperin that you were making this request or referral at the request
of the President of the United States.
A. Yes, and I didn't see any need to do that.
Q. And then, when you talked to Mr.--
A. Nor do I believe not saying that, Counselor, was a breach of
some fiduciary relationship.
Q. And when you had your conversation with Mr. Perelman--
A. Right.
Q. --at a later time--
A. Right.
Q. --you do not remember whether you told him--you do not believe
you told him you were calling for the President--
A. I believe that I did not tell him.
Q. --but you assumed that he knew?
A. No. I did not make any assumptions, let me say. I said: Ronald,
here is a young lady who has been interviewed. She thinks the interview
has not gone well. See what you can do to make sure that she is
properly interviewed and evaluated--in essence.
Q. And did you reference her as a former White House intern?
A. Probably. I do not have a recollection of whether I described
her as a White House intern, whether I described her as a person who
had worked for the Pentagon. I said this is a person that I have
referred.
I think, Mr. Hutchinson, that I have sufficient, uh, influence,
shall we say, sufficient character, shall we say, that people have been
throughout my career able to take my word at face value.
Q. And so you didn't need to reference the President. The fact that
you were calling Mr. Perelman--
A. That was sufficient.
Q. --and asking for a second interview for Ms. Lewinsky, that that
should be sufficient?
A. I thought it was sufficient, and obviously, Mr. Perelman thought
it was sufficient.
Q. And so there is no reason, based on what you told him, for him
to think that you were calling at the request of the President of the
United States?
A. I think that's about right.
Q. And so, at least with the conversation with Mr. Halperin and Mr.
Perelman, you did not reference that you were acting in behalf of the
President of the United States. Was there anyone else that you talked
to at Revlon in which they might have acquired that information?
A. The only persons that I talked to in this process, as I
explained to you, was Mr. Halperin and Mr. Perelman about this process.
And it was Mr. Halperin who put the--who got the process started.
Q. So those are the only two you talked about, and you made no
reference that you were acting in behalf of the President?
A. Right.
Q. Now, the second piece of information was the fact that you knew
and the President knew that Ms. Lewinsky was under subpoena in the
Jones case, and that information was not provided to either Mr.
Halperin or to Mr. Perelman; is that correct?
A. That's correct.
Q. Now, I wanted to read you a question and answer of Mr. Howard
Gittis in his grand jury testimony of April 23, 1998.
The question was: ``Now, you had mentioned before that one of the
responsibilities of director is to have a fiduciary duty to the
company. If it was the case that Ms. Lewinsky had been noticed as a
witness in the Paula Jones case, and Vernon Jordan had known that, is
that something that you believe as a person who works for McAndrews &
Forbes, is that something that you believe that Mr. Jordan should have
told you, or someone in the company, not necessarily you, but someone
in the company, when you referred her for employment?''
His answer was ``Yes.''
Do you disagree with Mr. Gittis'' conclusion that that was
important information for McAndrews & Forbes?
A. I obviously didn't think it was important at the time, and I
didn't do it.
Q. Now, in your previous answers, you reference the fact that you--
--
A. I think, on the other hand, that had she been a defendant in a
murder case and I knew that, then I probably wouldn't have referenced
her. But her being a witness in a civil case I did not think important.
Q. Despite the fact that you were acting at the request of the
President, and this witness was potentially adverse to the President's
interest in that case?
A. I didn't know that. I mean, I don't--I don't know what her
position was or whether it was adverse or not.
Q. All right. Mr. Jordan, prior to you answering that, did you get
an answer from your attorney?
A. My attorney mumbled something in my ear, but I didn't hear him.
MR. HUNDLEY: It was a spontaneous remark. I'll try to refrain.
MR. HUTCHINSON: I know that--
THE WITNESS: He does have a right to mumble in my ear, I think.
MR. HUNDLEY: I mumble too loud because I don't hear too well
myself.
BY MR. HUTCHINSON:
Q. Now, going back to a complicating factor in your conversation
with Mr. Gittis and this embarrassing situation of the Lewinsky job,
the complicating fact was that you had also helped Webb Hubbell get a
job or consulting contracts with the same company; is that--
A. Yes. You use the word ``complicated.'' I did not view it as a
complication. I viewed it as a, as another something that happened, and
that that caused some embarrassment to the company, and here again, we
were back for another embarrassment for the company, and I thought I
had a responsibility to say that.
Q. Would you explain how you helped Webb Hubbell secure a job or a
contract with Revlon?
A. Yes. Webb Hubbell came to me after his resignation from the
Justice Department. Webb and I got to be friends during the transition,
and Webb came to me and he said, ``I'm leaving the Justice
Department,'' or ``I've left the Justice Department''--I'm not sure
which--and he said, ``I really need work.''
And I said, ``Webb, I will do what I can to help you.''
I called New York, made arrangements. I took Webb Hubbell to New
York. We had lunch. I took him the headquarters of McAndrews & Forbes
at 62nd Street. I introduced him to Howard Gittis, Ronald Perelman, and
I left.
Q. And did, subsequently, Mr. Hubbell obtain consulting contracts
with Revlon?
A. Subsequently, Mr. Hubbell was hired, as I understand it, as
outside counsel to McAndrews & Forbes, or Revlon, or some entity within
the Perelman empire.
Q. And was that consulting contracts of about $100,000 a year?
A. I--I think so, I think so.
Q. And did you make other contacts with other companies in which
you had friends for assistance for Webb Hubbell?
A. I did not.
Q. And was the effort to assist Mr. Webb Hubbell during this time--
was it after he left the Department of Justice and prior to the time
that he pled guilty to criminal charges?
A. That is correct.
Q. And at the time you assisted Webb Hubbell by securing a job with
Revlon for him, was he a potential adverse witness to the President in
the ongoing investigation by the Independent Counsel?
A. I don't know whether he was an adverse witness or not. What he
was was my friend who had just resigned from the Justice Department,
and he was out of work, and he asked for help, and I happily helped
him.
Q. And did you know at the time that he was a potential witness in
the investigation by the OIC?
A. I don't know whether I knew whether he was a potential witness
or not. I simply responded to Webb Hubbell who was a friend in trouble
and needing work.
Q. Now, let's backtrack to the time when you first had any contact
with Ms. Lewinsky. We've talked about this January 20-21st meeting with
Mr. Gittis and covered a little bit of the tail end of this entire
episode. Now I would like to go back in time to your first meetings
with Ms. Lewinsky.
Now, when was the first time that you recall that you met with
Monica Lewinsky?
A. If you've read my grand jury testimony--
Q. I have.
A. --and I'm sure that you have--there is testimony in the grant
jury that she came to see me on or about the 5th of November. I have no
recollection of that. It was not on my calendar, and I just have no
recollection of her visit. There is a letter here that you have in
evidence, and I have to assume that in fact that happened. But as I
said in my grand jury testimony, I'm not aware of it, I don't remember
it--but I do not deny that it happened.
Q. And Ms. Lewinsky has made reference to a meeting that occurred
in your office on November 5, and that's the meeting that you have no
recollection of?
A. That is correct. We have no record of it in my office, and I
just have no recollection of it.
Q. And in your first grand jury appearance, you were firm, shall I
say, that the first time you met with Ms. Lewinsky, that it was on
December 11th?
A. Yes. It was firm based on what my calendar told me, and
subsequently to that, there has been a refreshing of my recollection,
and I do not deny that it happened. By the same token, I will tell you,
as I said in my grand jury testimony, that I did not remember that I
had met with her.
Q. And in fact today, the fact that you do not dispute that that
meeting occurred is not based upon your recollection but is simply
based upon you've seen the records, and it appears that that meeting
occurred?
A. That is correct.
Q. Okay. And you've made reference to my first exhibit there, which
is front of you, and I would refer you to this at this time, which is
Exhibit 86.
Now, this is captioned as a ``Letter from Ms. Lewinsky to Mr.
Vernon Jordan dated November 6, 1997,'' and it appears that this letter
thanks you for meeting with her in reference to her job search. And do
you recall this--
MR. KENDALL: Mr. Hutchinson, excuse me. May I ask--this is an
unsigned copy. Do you have a signed copy of this letter?
MR. HUTCHINSON: Let me go through my questions if I might.
BY MR. HUTCHINSON:
Q. Do you recall receiving this letter?
A. I do not.
Q. Do you ever recall seeing this letter before?
A. The first time I saw this letter was when I was before the grand
jury.
Q. And am I correct that it's your testimony that the first time
you ever recall hearing the name ``Monica Lewinsky'' was in early
December of '97?
A. That's correct. I--I may have heard the name before, but the
first time I remember seeing her and having her in my presence was
then.
Q. Well, regardless of whether you met with her in November or not,
the fact is you did not do anything in November to secure a job for Ms.
Lewinsky until your activities on December 11 of '97?
A. I think that's correct.
Q. And on December 11, I think you made some calls for Ms. Lewinsky
on that particular day?
A. I believe I did. I have some--it's all right for me to refresh
my recollection?
Q. Certainly.
A. Thank you. [Perusing documents.] I did make calls for her on the
11th, yes.
Q. And may I just ask what you're referring to?
A. I'm referring here to telephone logs prepared by counsel here
for me to refresh my recollection about calls.
MR. HUNDLEY: You are welcome to have a copy of that.
THE WITNESS: You are welcome to see it.
MR. HUTCHINSON: Do you have an extra copy?
THE WITNESS: Yes--in anticipation.
MR. HUNDLEY: There are a few calls.
SENATOR THOMPSON: Might this be a good time to take a 5-minute
break?
MR. HUTCHINSON: Certainly.
SENATOR THOMPSON: All right. Let's adjourn for 5 minutes.
THE VIDEOGRAPHER: We are going off the record at 10:03 a.m.
[Recess.]
THE VIDEOGRAPHER: We're going back on the record at 10:16 a.m.
SENATOR THOMPSON: All right. Counsel has consumed 38 minutes.
Counsel, would you proceed?
MR. HUTCHINSON: Thank you, Senator Thompson.
At this time, I would offer as Jordan Deposition Exhibit 86, if you
don't mind me going by that numerology--
SENATOR THOMPSON: Would it be better to do that or make it Jordan
Exhibit Number 1? Does counsel have any preference on that--is that--
MR. HUTCHINSON: One is fine.
SENATOR THOMPSON: Let's do it that way. It will be made a part of
the record, Jordan Deposition Number 1.
[Jordan Deposition Exhibit No. 1 marked for identification.]
BY MR. HUTCHINSON:
Q. Mr. Jordan, let me go back to that meeting on December 11th. I
believe we were discussing that. My question would be: How did the
meeting on December 11 of 1997 with Ms. Lewinsky come about?
A. Ms. Lewinsky called my office and asked if she could come to see
me.
Q. And was that preceded by a call from Betty Currie?
A. At some point in time, Betty Currie had called me, and Ms.
Lewinsky followed up on that call, and she came to my office, and we
had a visit.
Q. Ms. Lewinsky called, set up a meeting, and at some point sent
you a resume, I believe.
A. I believe so.
Q. And did you receive that prior to the meeting on December 11th?
A. I--I have to assume that I did, but I--I do not know whether she
brought it with her or whether--it was at some point that she brought
with her or sent to me--somehow it came into my possession--a list of
various companies in New York with which she had--which were here
preferences, by the way--most of which I did not know well enough to
make any calls for.
Q. All right. And I want to come back to that, but I believe--would
you dispute if the record shows that you received the resume of Ms.
Lewinsky on December 8th?
A. I would not.
Q. And presumably, the meeting on December 11th was set up
somewhere around December 8th by the call from Ms. Lewinsky?
A. I--I would not dispute that, sir.
Q. All right. Now, you mentioned that she had sent you a--I guess
some people refer to it--a wish list, or a list of jobs that she--
A. Not jobs--companies.
Q. --companies that she would be interested in seeking employment
with.
A. That's correct.
Q. And you looked at that, and you determined that you wanted to go
with your own list of friends and companies that you had better
contacts with.
A. I'm sure, Congressman, that you too have been in this business,
and you do know that you can only call people that you know or feel
comfortable in calling.
Q. Absolutely. No question about it. And let me just comment and
ask you response to this, but many times I will be listed as a
reference, and they can take that to any company. You might be listed
as a reference and the name ``Vernon Jordan'' would be a good reference
anywhere, would it not?
A. I would hope so.
Q. And so, even though it was a company that you might not have the
best contact with, you could have been helpful in that regard?
A. Well, the fact is I was running the job search, not Ms.
Lewinsky, and therefore, the companies that she brought or listed were
not of interest to me. I knew where I would need to call.
Q. And that is exactly the point, that you looked at getting Ms.
Lewinsky a job as an assignment rather than just something that you
were going to be a reference for.
A. I don't know whether I looked upon it as an assignment. Getting
jobs for people is not unusual for me, so I don't view it as an
assignment. I just view it as something that is part of what I do.
Q. You're acting in behalf of the President when you are trying to
get Ms. Lewinsky a job, and you were in control of the job search?
A. Yes.
Q. Now, going back--going to your meeting that we're talking about
on December 11th, prior to the meeting did you make any calls to
prospective employers in behalf of Ms. Lewinsky?
A. I don't think so. I think not. I think I wanted to see her
before I made any calls.
Q. And so if they were not before, after you met with her, you made
some calls on December 11th?
A. I--I believe that's correct.
Q. And you called Mr. Richard Halperin of McAndrews & Forbes?
A. That's right.
Q. You called Mr. Peter--
A. Georgescu.
Q. --Georgescu. And he is with what company?
A. He is chairman and chief executive officer of Young & Rubicam, a
leading advertising agency on Madison Avenue.
Q. And did you make one other call?
A. Yes. I called Ursie Fairbairn, who runs Human Resources at
American Express, at the American Express Company, where I am the
senior director.
Q. All right. And so you made three calls on December 11th. You
believe that they were after you met with Ms. Lewinsky--
A. I doubt very seriously if I would have made the calls in advance
of meeting her.
Q. And why is that?
A. You sort of have to know what you're talking about, who you're
talking about.
Q. And what did you basically communicate to each of these
officials in behalf of Ms. Lewinsky?
A. I essentially said that you're going to hear from Ms. Lewinsky,
and I hope that you will afford her an opportunity to come in and be
interviewed and look favorably upon her if she meets your
qualifications and your needs for work.
Q. Okay. And at what level did you try to communicate this
information?
A. By--what do you mean by ``what level''?
Q. In the company that you were calling, did you call the chairman
of human resources, did you call the CEO--who did you call, or what
level were you seeking to talk to?
A. Richard Halperin is sort of the utility man; he does everything
at McAndrews & Forbes. He is very close to the chairman, he is very
close to Mr. Gittis. And so at McAndrews & Forbes, I called Halperin.
As I said to you, and as my grand jury testimony shows, I called
Young & Rubicam, Peter Georgescu as its chairman and CEO. I have had a
long-term relationship with Young & Rubicam going back to three of its
CEOs, the first being Edward Ney, who was chairman of Young & Rubicam
when I was head of the United Negro College Fund, and it was during
that time that we developed the great theme, ``A mind is a terrible
thing to waste.'' So I have had a long-term relationship with Young &
Rubicam and with Peter Georgescu, so I called the chairman in that
instance.
At American Express, I called Ms. Ursie Fairbairn who is, as I said
before, in charge of Human Resources.
So that is the level--in one instance, the chairman; in one
instance a utilitarian person; and in another instance, the head of the
Human Resources Department.
Q. And the utilitarian connection, Mr. Richard Halperin, was sort
of an assistant to Mr. Ron Perelman?
A. That's correct. He's a lawyer.
Q. Now, going to your meeting on December 11th with Ms. Lewinsky,
about how long of a meeting was that?
A. I don't--I don't remember. You have a record of it, Congressman.
Q. And actually, I think you've testified it was about 15 to 20
minutes, but don't hold me to that, either.
During the course of the meeting with Ms. Lewinsky, what did you
learn about her?
A. Uh, enthusiastic, quite taken with herself and her experience,
uh, bubbly, effervescent, bouncy, confident, uh--actually, I sort of
had the same impression that you House Managers had of her when you met
with her. You came out and said she was impressive, and so we come out
about the same place.
Q. And did she relate to you the fact that she liked being an
intern because it put her close to the President?
A. I have never seen a White House intern who did not like being a
White House intern, and so her enthusiasm for being a White House
intern was about like the enthusiasm of White House interns--they liked
it.
She was not happy about not being there anymore--she did not like
being at the Defense Department--and I think she actually had some
desire to go back. But when she actually talked to me, she wanted to go
to New York for a job in the private sector, and she thought that I
could be helpful in that process.
Q. Did she make reference to someone in the White House being
uncomfortable when she was an intern, and she thought that people did
not want her there?
A. She felt unwanted--there is no question about that. As to who
did not want her there and why they did not want her there, that was
not my business.
Q. And she related that--
A. She talked about it.
Q. --experience or feeling to you?
A. Yes.
Q. Now, your meeting with Ms. Lewinsky was on December 11th, and I
believe that Ms. Lewinsky has testified that she met with the President
on December 5--excuse me, on December 6--at the White House and
complained that her job search was not going anywhere, and the
President then talked to Mr. Jordan.
Do you recall the President talking to you about that after that
meeting?
A. I do not have a specific recollection of the President saying to
me anything about having met with Ms. Lewinsky. The President has never
told me that he met with Ms. Lewinsky, as best as I can recollect. I--I
am aware that she was in a state of anxiety about going to work. She
was in a state of anxiety in addition because her lease at Watergate,
at the Watergate, was to expire December 31st. And there was a part of
Ms. Lewinsky, I think, that thought that because she was coming to me,
that she could come today and that she would have a job tomorrow. That
is not an unusual misapprehension, and it's not limited to White House
interns.
Q. I mentioned her meeting with the President on the same day,
December 6th. I believe the record shows the President met with his
lawyers and learned that Ms. Lewinsky was on the Jones witness list.
Now, did you subsequently meet with the President on the next day,
December 7th?
A. I may have met with the President. I'd have to--I mean, I'd have
to look. I'd have to look. I don't know whether I did or not.
Q. If you would like to confer--I believe the record shows that,
but I'd like to establish that through your testimony.
MS. WALDEN: Yes.
THE WITNESS: Yes.
BY MR. HUTCHINSON:
Q. All right. So you met with the President on December 7th. And
was it the next day after that, December 8th, that Ms. Lewinsky called
to set up the job meeting with you on December 11th?
A. I believe that is correct.
Q. And sometime after your meeting on December 11th with Ms.
Lewinsky, did you have another conversation with the President?
A. Uh, you do understand that conversations between me and the
President, uh, was not an unusual circumstance.
Q. And I understand that--
A. All right.
Q. --and so let me be more specific. I believe your previous
testimony has been that sometime after the 11th, you spoke with the
President about Ms. Lewinsky.
A. I stand on that testimony.
Q. All right. And so there's two conversations after the witness
list came out--one that you had with the President on December 7th, and
then a subsequent conversation with him after you met with Ms. Lewinsky
on the 11th.
Now, in your subsequent conversation after the 11th, did you
discuss with the President of the United States Monica Lewinsky, and if
so, can you tell us what that discussion was?
A. If there was a discussion subsequent to Monica Lewinsky's visit
to me on December the 11th with the President of the United States, it
was about the job search.
Q. All right. And during that, did he indicate that he knew about
the fact that she had lost her job in the White House, and she wanted
to get a job in New York?
A. He was aware that--he was obviously aware that she had lost her
job in the White House, because she was working at the Pentagon. He was
also aware that she wanted to work in New York, in the private sector,
and understood that that is why she was having conversations with me.
There is no doubt about that.
Q. And he thanked you for helping her?
A. There's no question about that, either.
Q. And on either of these conversations that I've referenced that
you had with the President after the witness list came out, your
conversation on December 7th, and your conversation sometime after the
11th, did the President tell you that Ms. Monica Lewinsky was on the
witness list in the Jones case?
A. He did not.
Q. And did you consider this information to be important in your
efforts to be helpful to Ms. Lewinsky?
A. I never thought about it.
Q. Was there a time that you became aware that Ms. Lewinsky had
been subpoenaed to give a deposition in the Jones versus Clinton case?
A. On December 19th when she came to my office with the subpoena--I
think it's the 19th.
Q. That's right. Now, you indicated you never thought about it,
because of course, at that point, you didn't know that she was on the
witness list, according to your testimony.
A. [Nodding head up and down.]
Q. Now, you said that she came to see you on December 19th--I'm
sorry. I've been informed you didn't respond out loud, so--
A. Well, if you'd ask the question, I'd be happy to respond.
Q. I was afraid you would ask me to ask the question again.
Well, let's go to the December 19th meeting.
A. Fine.
Q. How did it come about that you met with Ms. Lewinsky on December
19th?
A. Ms. Lewinsky called me in a rather high emotional state and said
that she needed to see me, and she came to see me.
Q. And she called you on the telephone on December 19th, in which
she indicated she had received a subpoena?
A. That's right, and was emotional about it and asked, and so I
said come over.
Q. And what was your reaction to her having received a subpoena in
the Jones case?
A. Surprise, number one; number two, quite taken with her emotional
state.
Q. And did you see that she had a problem?
A. She obviously had a problem--she thought--
THE VIDEOGRAPHER: We have to go off the record.
SENATOR THOMPSON: Off the record.
[Recess due to power failure.]
THE VIDEOGRAPHER: We're going back on the record at 10:49 a.m.
SENATOR THOMPSON: All right, let the record reflect that we've been
down for 20 to 25 minutes due to a power failure, but we are ready to
proceed now, counsel.
MR. HUTCHINSON: Thank you, Senator Thompson.
And Mr. Jordan, before we go back to my line of questioning, I have
been informed that we have that question in which we did not get an
audible response, and so I'm going to ask the court reporter to read
that question back.
[The court reporter read back the requested portion of the record.]
THE WITNESS: I did not know that she was on the witness list,
Congressman. And let me say parenthetically here that our side had
nothing to do with the power outage.
[Laughter.]
THE WITNESS: As desirable as that may have been.
[Laughter.]
BY MR. HUTCHINSON:
Q. Thank you, Mr. Jordan. And again, we're talking about the fact
you never thought about the President not telling you that Ms. Lewinsky
was on the witness list because you didn't know it at the time.
A. I--I did not know it.
Q. All right. Now, before we go back to December 19th, I've also
been informed that I've been neglectful, and sometimes you will give a
nod of the head, and I've not asked you to give an audible response. So
I'm going to try to be mindful of that, but at the same time, Mr.
Jordan, if you can try to give an audible response to a question rather
than what we sometimes do in private conversation, which is a nod of
the head. Fair enough?
A. I'm happy to comply.
Q. Now, we're talking about December 19th, that you had received a
call from Monica Lewinsky; she had been subpoenaed in the Jones case.
She was upset. You said, Come to my office.
Now, when she got to the office, I asked you, actually, before
that, what was your reaction to her having this subpoena, and she had a
problem because of the subpoena.
A. Yes.
Q. And I believe you previously indicated that any time a witness
gets a subpoena, they've got a problem that they would likely need
legal assistance.
A. That's been my experience.
Q. And in fact she did subsequently come to see you at the office
on that December 19th, is that correct?
A. That's correct.
Q. And what happened at that meeting in your office with Ms.
Lewinsky on the 19th?
A. She, uh, as I said, was quite emotional. She was--she was
disturbed about the subpoena. She was disturbed about not having, in
her words, heard from the President or talked to the President.
It was also in that meeting that it became clear to me that the--
that her eyes were wide and that she, uh, that--let me--for lack of a
better way to put it, that she had a ``thing'' for the President.
Q. And how long was that meeting?
A. I don't know, uh, but it's in the record.
MR. HUNDLEY: You testified 45 minutes.
THE WITNESS: Forty-five minutes. Thank you.
MR. HUTCHINSON: Thank you.
MR. HUNDLEY: Is that okay if I--
MR. HUTCHINSON: That's all right, and that's helpful, Mr. Hundley.
MR. HUNDLEY: Thank you. I'm trying to be helpful.
BY MR. HUTCHINSON:
Q. And during this meeting, did she in fact show you the subpoena
that she had received in the Jones litigation?
A. I'm sure she showed me the subpoena.
Q. And the subpoena that was presented to you asked her to give a
deposition, is that correct?
A. As I recollect.
Q. But did it also ask Ms. Lewinsky or direct her to produce
certain documents and tangible objects?
A. I think, if I'm correct in my recollection, it asked that she
produce gifts.
Q. Gifts, and some of those gifts were specifically enumerated.
A. I don't remember that. I do remember gifts.
Q. And did you discuss any of the items requested under the
subpoena?
A. I did not. What I said to her was that she needed counsel.
Q. Now, just to help you in reference to your previous grand jury
testimony of March 3, '98--and if you would like to refer to that, page
121, but I believe it was your testimony that you asked her if there
had been any gifts after you looked at the subpoena.
A. I may have done that, and if I--if that's in my testimony, I
stand by it.
Q. And did she--from your conversation with her, did you determine
that in your opinion, there was a fascination on her part with the
President?
A. No question about that.
Q. And I think you previously described it that she had a ``thing''
for the President?
A. ``Thing,'' yes.
Q. And did you make any specific inquiry as to the nature of the
relationship that she had with the President?
A. Yes. At some point during that conversation, I asked her
directly if she had had sexual relationships with the President.
Q. And is this not an extraordinary question to ask a 24-year-old
intern, whether she had sexual relations with the President of the
United States?
A. Not if you see--not if you had witnessed her emotional state and
this ``thing,'' as I say. It was not.
Q. And her emotional state and what she expressed to you about her
feelings for the President is what prompted you to ask that question?
A. That, plus the question of whether or not the President at the
end of his term would leave the First Lady; and that was alarming and
stunning to me.
Q. And she related that question to you in that meeting on December
19th?
A. That's correct.
Q. Now, going back to the question in which you asked her if she
had had a sexual relationship with the President, what was her
response?
A. No.
Q. And I'm sure that that was not an idle question on your part,
and I presume that you needed to know the answer for some purpose.
A. I wanted to know the answer based on what I had seen in her
expression; obviously, based on the fact that this was a subpoena about
her relationship with the President.
Q. And so you felt like you needed to know the answer to that
question to determine how you were going to handle the situation?
A. No. I thought it was a factual data that I needed to know, and I
asked the question.
Q. And why did you need to know the answer to that question?
A. I am referring this lady, Ms. Lewinsky, to various companies for
jobs, and it seemed to me that it was important for me to know in that
process whether or not there had been something going on with the
President based on what I saw and based on what I heard.
Q. And also based upon your years of experience--I mean your--
A. I don't understand that question.
Q. Well, you have children?
A. I have four children; six grandchildren.
Q. And you've raised kids, you've had a lot of experiences in life,
and do you not apply that knowledge and experience and wisdom to
circumstances such as this?
A. Yes. I've been around, and I've seen young people, both men and
women, overly excited about older, mature, successful individuals, yes.
Q. Now, let me just go back as to what signals that you might have
had at this particular point that there was a sexual relationship
between Ms. Lewinsky and the President. Was one of those the fact that
she indicated that she had a fascination with the President?
A. Yes.
Q. And did she relate that ``He doesn't call me enough''?
A. Yes.
Q. And was the fact that there was an exchange of gifts a factor in
your consideration?
A. Well, I was not aware that there had been an exchange of gifts.
I thought it a tad unusual that there would be an exchange of gifts,
uh, but it was just clear that there was a fixation by this young woman
on the President of the United States.
Q. And was it also a factor that she had been issued a subpoena in
a case that was rooted in sexual harassment?
A. Well, it certainly helped.
Q. And that was an ingredient that you factored in and decided this
is a question that needed to be asked?
A. There's no question about that.
Q. Now, heretofore, the questions or the discussions with Ms.
Lewinsky had simply been about a job?
A. Had been about a job.
Q. And I think you indicated that you didn't have to be an Einstein
to know that this was a question that needed to be asked after what you
learned on this meeting?
A. Yes, based on my own judgment, that is correct.
Q. Now, at this point, you're assisting the President in obtaining
a job for a former intern, Monica Lewinsky?
A. Right.
Q. It comes to your attention from Ms. Lewinsky that she has a
subpoena in a civil rights case against the President. And did this
make you consider whether it was appropriate for you to continue
seeking a job for Ms. Lewinsky?
A. Never gave it a thought.
Q. Despite the fact that you were seeking the job for Ms. Lewinsky
at the request of the President when she is under subpoena in a case
adverse to the President?
A. I--I did not give it a thought. I had committed that I was going
to help her, and I was going to--and I kept my commitment.
Q. And so, however she would have answered that question, you would
have still prevailed upon your friends in industry to get a job for
her?
A. Congressman, that is a hypothetical question, and I'm not going
to answer a hypothetical question.
Q. Well, I thought you had answered it before, but if--so you don't
know whether it would have made a difference or not, then?
A. I asked her whether or not she had had sexual relationships with
the President. Ms. Lewinsky told me no.
MR. HUNDLEY: I'd just like to interject. My recollection,
Congressman, is that in the grand jury, he gave basically the same
answer, that it was a hypothetical question, and that he really didn't
know what he would have done had the answer been different. You could
double-check it if you want, but I'm sure I'm right.
BY MR. HUTCHINSON:
Q. Okay, I'm not asking you a hypothetical question. I want to ask
it in this phrase, in this way. Did her answer make you consider
whether it was appropriate for you to continue seeking a job for Ms.
Lewinsky at the request of the President?
A. I did not see any reason why I should not continue to help her
in her job search.
Q. Now, was the fact that she was under subpoena important
information to you?
A. It was additional information, certainly.
Q. If you were trying to get Ms. Lewinsky a job, did you expect her
to tell you if she had any reason to believe she might be a witness in
the Jones case?
A. She did in fact tell me by showing me the subpoena. I had no
expectations one way or the other.
Q. Well, I refer you to your grand jury testimony of March 3, '98
at page 96. Do you recall the answer: ``I just think that as a matter
of openness and full disclosure that she would have done that.''
A. And she did.
Q. Precisely. She disclosed to you, of course, when she received
the subpoena, and that's information that you expected to know and to
be disclosed to you?
A. Fine.
Q. Is--
A. Yes. Fine.
Q. And in fact, if Ms. Currie--I'm talking about Betty Currie--if
she had known that Ms. Lewinsky was under subpoena, you would have
expected her to tell you that information as well since you were
seeking employment for Ms. Lewinsky?
A. Well, it would have been fine had she told me. I do make a
distinction between being a witness on the one hand and being a
defendant in some sort of criminal action on the other. She was a
witness in the civil case, and I don't believe witnesses in civil cases
don't have a right for--to employment.
Q. Okay. I refer you to page 95 of your grand jury testimony, in
which you said: ``I believe that had Ms. Currie known, that she would
have told me.''
And the next question: ``Let me ask the question again, though.
Would you have expected her to tell you if she knew?''
And do you recall your answer?
A. I don't.
Q. ``Yes, sure.''
A. I stand by that answer.
Q. And so it's your testimony that if Ms. Currie had known that Ms.
Lewinsky was under subpoena, you would have expected her to tell you
that information?
A. It would have been helpful.
Q. And likewise, would you have expected the President to tell you
if he had any reason to believe that Ms. Lewinsky would be called as a
witness in the Paula Jones case?
A. That would have been helpful, too.
Q. And that was your expectation, that he would have done that in
your conversations?
A. It--it would certainly have been helpful, but it would not have
changed my mind.
Q. Well, being helpful and that being your expectation is a little
bit different, and so I want to go back again to your testimony on
March 3, page 95, when the question is asked to you--question: ``If the
President had any reason to believe that Ms. Lewinsky could be called a
witness in the Paula Jones case, would you have expected him to tell
you that when you spoke with him between the 11th and the 19th about
her?''
And your answer: ``And I think he would have.''
A. My answer was yes in the grand jury testimony, and my answer is
yes today.
Q. All right. So it would have been helpful, and it was something
you would have expected?
A. Yes.
Q. And yet, according to your testimony, the President did not so
advise you of that fact in the conversations that he had with you on
December 7th and December 11th after he learned that Ms. Lewinsky was
on the witness list?
A. As I testified--
MR. KENDALL: Objection. Misstates the record with regard to
December 11th.
MR. HUTCHINSON: I--I will restate the question. I believe it
accurately reflects the record, and I'll ask the question.
BY MR. HUTCHINSON:
Q. And yet, according to your testimony, the President did not so
advise you of the fact that Ms. Lewinsky was on the witness list
despite the fact that he had conversations with you on two occasions,
on December 7th and December 11th?
A. I have no recollection of the President telling me about the
witness list.
Q. And during this meeting with Ms. Lewinsky on the 11th, did you
take some action as a result of what she told you?
A. On the 11th or the 18th?
Q. Excuse me. I'm sorry. Let me go to the 19th.
A. Nineteenth.
Q. Thank you for that correction.
Did you refer her to an attorney?
A. Yes, I did.
Q. Okay, and who was the attorney that you referred her to?
A. Frank Carter, a very able local attorney here.
Q. And did you give her two or three attorneys to select from, or
did you just give her one recommendation?
A. I made a recommendation of Frank Carter. That was the only
recommendation.
Q. Now, let me go to I believe it's the next three exhibits that
are in front of you, if you'd just turn that first page, and I believe
they are marked 29, 31, 32 and 33. And these are, I believe, exhibits
that you have seen before and are summaries and documents relating to
telephone conversations on this particular day of December 19th.
[Witness perusing documents.]
SENATOR DODD: How are these going to be marked--as Jordan
Deposition Exhibits--
MR. HUTCHINSON: These should be marked as Exhibits 2, 3, and 4.
SENATOR DODD: Okay.
MR. KENDALL: Excuse me, Mr. Manager. Are you offering these in
evidence?
MR. HUTCHINSON: Not at this time.
I guess it's 2, 3, 4 and 5.
SENATOR THOMPSON: Are we referring to the next four exhibits in the
package here?
MR. HUTCHINSON: Yes, sir.
SENATOR THOMPSON: Well, we'll just--identify them one at a time,
and we'll--
MR. HUTCHINSON: All right.
BY MR. HUTCHINSON:
Q. Let's go to Exhibit 29 as it's marked, but for our purpose,
we're going to refer to it as Deposition Exhibit 2.
SENATOR THOMPSON: All right. For identification for right now,
we'll call that Jordan Exhibit Number 2 for identification, which is
marked as, I assume, Grand Jury Exhibit Number 29.
[Jordan Deposition Exhibit No. 2 marked for identification.]
BY MR. HUTCHINSON:
Q. And from this record, would you agree that you received a call
from Ms. Lewinsky at 1:47 p.m.?
A. For 11 seconds.
Q. All right. And subsequent to that, you placed a call to talk to
the President at 3:51 p.m. and talked to Deborah Schiff?
A. Yes.
Q. And what was the purpose of that call to Deborah Schiff?
A. I--I'm certain that I did not call Deborah Schiff. I had no
reason to call Deborah Schiff. My suspicion was that if I in fact
called 1414, that somehow Deborah Schiff was answering the telephone.
Q. Were you trying to get hold of the President?
A. I think maybe I was.
Q. All right. And then, subsequent to that, Ms. Lewinsky arrived in
your office at 4:47 p.m.--and I believe that would be reflected on
Exhibit 3--excuse me--Exhibit 4.
MR. HUNDLEY: Four.
THE WITNESS: Yes.
BY MR. HUTCHINSON:
Q. And does it also reflect, going back to the call records, that
you talked to the President during the course of your meeting with Ms.
Lewinsky at approximately 5:01 p.m.?
A. I beg your pardon?
MR. HUTCHINSON: This would be Exhibit 5.
SENATOR THOMPSON: All right. Let's mark these for identification
purposes.
We have already identified Deposition Exhibit Number 29 as Exhibit
Number 2 for identification in Mr. Jordan's deposition.
The next one would be Grand Jury Exhibit Number 31, and we will
mark that as Exhibit Number 3 for identification purposes. Following
that will be Grand Jury Exhibit Number 32, that we will identify as
Exhibit Number 4 to Mr. Jordan's deposition for identification
purposes; and Grand Jury Exhibit Number 33 will be Exhibit Number 5 to
Mr. Jordan's deposition for identification purposes.
Now, do we need to go any further at this time?
MR. HUTCHINSON: No. Thank you.
SENATOR THOMPSON: All right.
[Jordan Deposition Exhibit Nos. 3, 4 and 5 marked for
identification.]
BY MR. HUTCHINSON:
Q. Mr. Jordan--
A. Yes.
Q. --under Exhibit--
A. Yes.
Q. --according to these records, specifically Exhibit 5, does it
reflect that you talked to the President during the course of your
meeting with Ms. Lewinsky at approximately 5:01 p.m.?
MR. KENDALL: Object to the form of the question.
MR. HUTCHINSON: You may answer.
THE WITNESS: I'm confused.
MR. HUTCHINSON: There's an objection as to the form of the
question.
THE WITNESS: Oh.
SENATOR THOMPSON: We can resolve it.
MR. KENDALL: The question was do these records indicate this. If he
offers Number 2, I'm going to object to it. It's not the best evidence.
It's a chart. I don't know who prepared it--
SENATOR THOMPSON: He's referring to 5 now, I believe, isn't he?
MR. HUTCHINSON: Yes.
SENATOR THOMPSON: I believe this had to do with 5.
MR. HUTCHINSON: All right.
THE WITNESS: Would you ask your question?
BY MR. HUTCHINSON:
Q. Mr. Jordan, I'm simply trying to establish, and using Exhibit 5
to refresh your recollection--
MR. KENDALL: I withdraw the objection, I withdraw the objection.
SENATOR THOMPSON: All right, sir; very fine.
MR. HUTCHINSON: Thank you.
BY MR. HUTCHINSON:
Q. --that this record, Exhibit 5, reflects that you talked to the
President during the course of your meeting with Ms. Lewinsky at
approximately 5:01 p.m.
A. Yes. I--I have never had a conversation with the President while
Ms. Lewinsky was present. The wave-in sheet from my office said that
she came in at 5:47--
Q. Four forty-seven.
A. --4:47. She may have been in the reception area, or she may have
been outside my office, but Ms. Lewinsky was not in my office during
the time that I had a conversation with the President.
Q. And the other alternative would be that she came into your
office, and then you excused her while you received a call from the
President?
A. That's a possibility, too--
Q. All right.
A. --but she was not present in my office proper during the time
that I was having a conversation with the President.
Q. Absolutely, and that is clear.
Now, because we got a little bogged down in the records, let me
just go back for a moment. Is it your understanding, based upon the
records and recollection, that you received a call from Ms. Lewinsky
about 1:47; you talked to Deborah Schiff trying to get hold of the
President about 3:51 that afternoon; Ms. Lewinsky arrived at about 4:47
p.m.
A. Yes.
Q. Am I correct so far?
A. Yes.
Q. And then you received a call from the President at about 5:01
p.m.?
A. That's correct.
MR. HUTCHINSON: I want to say ``Your Honor''--I've wanted to do
this all day, Senator--I would offer these Exhibits 2, 3, 4 and 5 at
this time.
MR. KENDALL: I would object to the admission of Exhibit Number 2.
SENATOR THOMPSON: Mr. Hutchinson, could you identify what this
exhibit is from?
MR. HUTCHINSON: Well, this exhibit is a summary exhibited based
upon the original records that establish this. Now, we've established
it clearly through the testimony, so it's not of earth-shattering
significance whether this is in the record or not, because the witness
has established it.
SENATOR THOMPSON: All right. But this is a compilation of what you
contend--
MR. HUTCHINSON: Yes.
SENATOR THOMPSON: --is otherwise in the record?
MR. HUTCHINSON: Yes.
SENATOR THOMPSON: Counsel, do we really have a problem with that?
MR. KENDALL: Senator Thompson, I don't know who prepared this or
what records it's based on. I have not objected to any of the original
records, and I'll continue my objection.
SENATOR THOMPSON: I think in light of that we will sustain it, if
Mr. Hutchinson thinks it's otherwise in the record anyway, and not make
an issue out of that.
So we will, then, make as a part of the record Exhibits Numbers 3,
4 and 5 that have previously been introduced for identification
purposes; they will now be made a part of the record.
MR. HUTCHINSON: Thank you, Senator.
[Jordan Deposition Exhibit Nos. 3, 4 and 5 received in evidence.]
BY MR. HUTCHINSON:
Q. Now, Mr. Jordan, you indicated you had this conversation with
the President at about 5:01 p.m. out of the presence of Ms. Lewinsky.
Now, during this conversation with the President, what did you tell the
President in that conversation?
A. That Lewinsky--I'm sure I told him that Ms. Lewinsky was in my
office, in the reception area, that she had a subpoena and that I was
going to visit with her.
Q. And did you advise the President as well that you were going to
recommend Frank Carter as an attorney?
A. I may have.
Q. And why was it necessary to tell the President these facts?
A. I don't know why it was not unnecessary to tell him these facts.
I was keeping him informed about what was going on, and so I told him.
Q. Why did you make the judgment that you should call the President
and advise him of these facts?
A. I just thought he ought to know. He was interested it--he was
obviously interested in it--and I felt some responsibility to tell him,
and I did.
Q. All right. And what was the President's response?
A. He said thank you.
Q. Subsequent to your conversation with the President about Monica
Lewinsky, did you advise Ms. Lewinsky of this conversation with the
President?
A. I doubt it.
Q. And if she indicates that she was not aware of that
conversation, would you dispute her testimony in that regard?
A. I would not.
Q. And you say that you doubt it. Was there a reason that you would
not disclose to her the fact that you talked to the President when she
was the subject of that conversation?
A. No. I--I didn't feel any particular obligation to tell her or
not to tell her, but I did not tell her.
Q. Now, we have discussed to a limited extent the gifts that were
mentioned in the subpoena in this discussion that you had with Ms.
Lewinsky. Did she in fact tell you about the gifts she had received
from the President?
A. I think she told me that she had received gifts from the
President.
Q. Did she also indicate that there had been an exchange of gifts?
A. She did.
Q. And did you think that it was somewhat unusual that there had
been an exchange of gifts?
A. Uh, a tad unusual, I thought.
Q. These--
A. Which again occasioned the question.
Q. Pardon?
A. Which again occasioned the ultimate question.
Q. On--on whether there was a sexual relationship?
A. That is correct.
Q. And so that was a significant fact in determining whether that
question should be asked?
A. It was an additional fact.
Q. Now, the subpoena also references ``documents constituting or
containing communications between you''--which would have been Ms.
Lewinsky under the subpoena--``and the Defendant Clinton, including
letters, cards, notes, et cetera.''
Did you ask Ms. Lewinsky at all whether there were any kinds of
cards or communications between them?
A. Uh, I did not, but she may have volunteered that.
Q. And did she tell you about telephone conversations with the
President?
A. She did tell me that she and the President talked on the
telephone.
Q. And did she express it in a way that it was frustrating because
the President didn't call her sufficiently?
A. Well, that--that is correct, and she was disappointed, uh, and
disapproving of the fact that she was not hearing from the President of
the United States on a regular basis.
Q. During this conversation with Ms. Lewinsky, she also made
reference to the First Lady?
A. Yes.
Q. And that was another question of concern when she asked if you
thought that the President would leave the First Lady at the end of his
term?
A. That is correct.
Q. And what was your reaction to this statement?
A. My reaction to the statement after I got over it was that--no
way.
Q. Did it send off alarm bells in your mind as to her relationship
with the President?
A. I think it's safe to say that she was not happy.
Q. You're speaking of Ms. Lewinsky?
A. That's the only person we're talking about, Congressman.
Q. Now, based upon all of this, was it your conclusion the subpoena
meant trouble?
A. Beg your pardon?
Q. Based upon all of these facts and your conversation with Ms.
Lewinsky, was it your conclusion that the subpoena meant trouble?
A. Well, I always, based on my experience with the grand jury,
believe that subpoenas are trouble.
Q. I think you've used the language, ``ipso facto'' meant trouble?
A. Yes, yes, right.
Q. Now, subsequent to your meeting with Ms. Lewinsky on this
occasion, did you in fact set up an appointment with Mr. Frank Carter?
A. Yes--for the 22nd, I believe.
Q. Which I believe would have been the first part of the next week?
A. That's right.
Q. And still on December 19th, after your meeting with Ms.
Lewinsky, did you subsequently see the President of the United States
later that evening?
A. I did.
Q. And is this when you went to the White House and saw the
President?
A. Yes.
Q. At the time that Ms. Lewinsky came to see you on December 19th,
did you have any plans to attend any social function at the White House
that evening?
A. I did not.
Q. And in fact there was a social invitation that you had at the
White House that you declined?
A. I had--I had declined it; that's right.
Q. And subsequent to Ms. Lewinsky visiting you, did you change your
mind and go see the President that evening?
A. After the--a social engagement that Mrs. Jordan and I had, we
went to the White House for two reasons. We went to the White House to
see some friends who were there, two of whom were staying in the White
House; and secondly, I wanted to have a conversation with the
President.
Q. And this conversation that you wanted to have with the President
was one that you wanted to have with him alone?
A. That is correct.
Q. And did you let him know in advance that you were coming and
wanted to talk to him?
A. I told him I would see him sometime that night after dinner.
Q. Did you tell him why you wanted to see him?
A. No.
Q. Now, was this--once you told him that you wanted to see him, did
it occur the same time that you talked to him while Ms. Lewinsky was
waiting outside?
A. It could be. I made it clear that I would come by after dinner,
and he said fine.
Q. Now, let me backtrack for just a moment, because whenever you
talked to the President, Ms. Lewinsky was not inside the room--
A. That's correct.
Q. --and therefore, you did not know the details about her
questions on the President might leave the First Lady and those
questions that set off all of these alarm bells.
A. [Nodding head up and down.]
Q. And so you were having--is the answer yes?
A. That's correct.
Q. And so you were having this discussion with the President not
knowing the extent of Ms. Lewinsky's fixation?
A. Uh--
Q. Is that correct?
A. Correct.
Q. And, regardless, you wanted to see the President that night, and
so you went to see him. And was he expecting you?
A. I believe he was.
Q. And did you have a conversation with him alone?
A. I did.
Q. No one else around?
A. No one else around.
Q. And I know that's a redundant question.
A. It's okay.
Q. Now, would you describe your conversation with the President?
A. We were upstairs, uh, in the White House. Mrs. Jordan--we came
in by way of the Southwest Gate into the Diplomatic Entrance--we left
the car there. I took the elevator up to the residence, and Mrs. Jordan
went and visited at the party. And the President was already upstairs--
I had ascertained that from the usher--and I went up, and I raised with
him the whole question of Monica Lewinsky and asked him directly if he
had had sexual relations with Monica Lewinsky, and the President said,
``No, never.''
Q. All right. Now, during that conversation, did you tell the
President again that Monica Lewinsky had been subpoenaed?
A. Well, we had established that.
Q. All right. And did you tell him that you were concerned about
her fascination?
A. I did.
Q. And did you describe her as being emotional in your meeting that
day?
A. I did.
Q. And did you relate to the President that Ms. Lewinsky asked
about whether he was going to leave the First Lady at the end of the
term?
A. I did.
Q. And as--and then, you concluded that with the question as to
whether he had had sexual relations with Ms. Lewinsky?
A. And he said he had not, and I was satisfied--end of
conversation.
Q. Now, once again, just as I asked the question in reference to
Ms. Lewinsky, it appears to me that this is an extraordinary question
to ask the President of the United States. What led you to ask this
question to the President?
A. Well, first of all, I'm asking the question of my friend who
happens to be the President of the United States.
Q. And did you expect your friend, the President of the United
States, to give you a truthful answer?
A. I did.
Q. Did you rely upon the President's answer in your decision to
continue your efforts to seek Ms. Lewinsky a job?
A. I believed him, and I continued to do what I had been asked to
do.
Q. Well, my question was more did you rely upon the President's
answer in your decision to continue your efforts to seek Ms. Lewinsky a
job.
A. I did not rely on his answer. I was going to pursue the job in
any event. But I got the answer to the question that I had asked Ms.
Lewinsky earlier from her, and I got the answer from him that night as
to the sexual relationships, and he said no.
Q. It would appear to me that there's two options. One, you asked
the question in terms of idle conversation, and that does not seem
logical in view of the fact that you made a point to go and visit the
President about this alone.
A. Yes. I never said that--I never talked about options. I told you
I went to ask him that question.
Q. Well, was it idle conversation, or was there a purpose in you
asking him that question?
A. It obviously, Congressman, was not idle conversation.
Q. All right.
A. For him nor for me.
Q. There was a purpose in it--and would you describe it as being
important, the question that you asked to him?
A. I wanted to satisfy myself, based on my visit with her, that
there had been no sexual relationships, and he said no, as she had said
no.
Q. And why was it important to you to satisfy yourself on that
particular point?
A. I had seen this young lady, and I had seen her reaction, uh, and
it raised a presumption, uh, and I wanted to satisfy myself, as I had
done with her, that there had been no sexual relationship between them.
Q. If you had--
A. And I did satisfy myself.
Q. And if you had--well, let me rephrase it. If you believed the
presumption, or if you had evidence that Ms. Lewinsky did have sexual
relations with the President, would this have affected your decision to
act in the President's interest in locating her a job when she had been
subpoenaed in a case adverse to the President?
A. I do not think it would have affected my decision.
Q. Now, you mentioned that you set up an appointment for Ms.
Lewinsky at the office of Frank Carter for December 22nd.
A. Right.
Q. Prior to that appointment with Mr. Carter, did Ms. Lewinsky come
to see you in your office?
A. I took Ms. Lewinsky from my office, in my Akin Gump, chauffeur-
driven car, to Frank Carter's office.
Q. And when she arrived at your office, did you have a discussion
with her?
A. I think I got my coat, she got her--she had on her coat--and we
left.
Q. While in your office before going to see Mr. Carter, did Ms.
Lewinsky ask about her job?
A. Every conversation that I had with Ms. Lewinsky had at some
point to do with pending employment.
Q. And I take that as a ``yes'' answer, but I would also refer you
to page 184 of your previous testimony in which that answer was
``yes.''
A. Yes.
Q. And so prior to going to see Mr. Carter, you met with Ms.
Lewinsky and--where she asked about her job?
A. Well, as I'm putting on my coat, I mean, we did not sit down and
have a conference. We had an appointment.
Q. Now, you last testified before the grand jury in June of 1998,
and you have not had the opportunity to address some issues that Ms.
Lewinsky raised when she testified before the grand jury in August of
1998, and I would like to--there will be a number of questions as we go
through this today relating to some things that she testified to,
because it's important that we hear your responses to it, and so I'd
like to ask you about a couple of these particular areas.
During this meeting--and you say it was a short meeting, that you
really didn't sit down--but during this time, did Ms. Lewinsky ask if
you had told the President that she had been subpoenaed in the Jones
case?
A. She may have, and--and if she did, I answered yes.
Q. Even though you did not tell her about the conversation on
December 19th that you had with the President in which you told the
President she had been subpoenaed?
A. If she had asked, I would have told her. If she asked me on the
22nd, I answered yes.
Q. And did Ms. Lewinsky show you any gifts that she was bringing to
Mr. Frank Carter?
A. Yeah--I'm not aware that Ms. Lewinsky showed me any gifts. I
have no--I have no recollection of her having shown me gifts given her
by the President. And my best recollection is that she came to my
office, I got myself together, and that we left. I have no recollection
of her showing me gifts given her by the President.
Q. Would you dispute if she in fact had gifts with her on that
occasion?
A. I don't know whether she had gifts with her or not. I do have--I
have no recollection of her showing me, saying, ``This is a gift given
me by the President of the United States.''
Q. And if she testifies that she showed you the gifts she was
bringing Mr. Carter, you would dispute that testimony?
A. I have not any recollection of her showing me any gifts.
Q. And I take that as not denying it--
MR. KENDALL: Objection to form.
BY MR. HUTCHINSON:
Q. --but that you have no recollection.
A. Uh, I don't know how else to say it to you, Mr. Congressman.
Q. Well--
A. I have no recollection of Ms. Lewinsky coming to my office and
showing me gifts given her by the President of the United States.
Q. Let me go on. Did Ms. Lewinsky tell you that she and the
President had had phone sex?
A. I think Ms.--I know Ms. Lewinsky told me about, uh, telephone
conversations with the President. If Ms. Lewinsky had told me something
about phone sex, I think I would have remembered that.
Q. And therefore, if she testifies that she told you that Ms.
Lewinsky and the President had phone sex, then you'd simply deny her
testimony in that regard?
A. I--
MR. KENDALL: Object to the form.
THE WITNESS: I have no recollection, Congressman, of Ms. Lewinsky
telling me about phone sex--but given my age, I would probably have
been interested in what that was all about.
SENATOR THOMPSON: We'll overrule the objection. It's a leading
question, but I think that it will be permissible for these purposes.
MR. HUTCHINSON: It's my understanding, Senator, that under the
Senate rule, that the witness would be considered an adverse witness.
SENATOR THOMPSON: That's correct.
BY MR. HUTCHINSON:
Q. Well, I don't mean to engage in disputes over fine points, but I
guess--
A. Well, you obviously, Congressman, have Ms. Lewinsky saying one
thing and me saying another. I stand by what I said.
Q. Which is that you have no recollection of that discussion taking
place.
A. But I do think that I would have remembered it had it happened.
Q. All right. Now, after your brief encounter or meeting with Ms.
Lewinsky in your office, did you take Ms. Lewinsky in your vehicle to
Mr. Carter's office?
A. Yes.
Q. And when you arrived at Mr. Carter's office, did you meet with
Mr. Carter in advance, while Ms. Lewinsky waited outside?
A. I said a brief hello to him. We talked about lunch. I never took
off my coat. I did take off my hat, because it was inside. And I left
them, and I got a piece of his candy.
Q. Now, I was looking at the testimony of Mr. Carter. Now, do you
recall a meeting with Mr. Carter in his office while Ms. Lewinsky
waited outside, even if it might have been a brief meeting?
A. Yes, I think maybe I went in. I just don't know--I was there for
a very short time.
Q. Did you explain to Mr. Carter that you were seeking Ms. Lewinsky
a job at the request of the President?
A. No, I did not, but I think he knew that.
Q. And why do you think he knew that?
A. I must have told him.
Q. So at some point, you believe that you told Mr. Carter that you
were seeking Ms. Lewinsky a job at the request of the President?
A. I think I may have done that.
Q. Now, you have referred other clients to Mr. Carter during your
course of practice here in Washington, D.C.?
A. Yes, I have.
Q. About how many have you referred to him?
A. Oh, I don't know. Maggie Williams is one client that I--I
remember very definitely.
I like Frank Carter a lot. He's a very able young lawyer. He's a
first-class person, a first-class lawyer, and he's one of my new
acquaintances amongst lawyers in town, and I like being around him. We
have lunch, and he's a friend.
Q. And is it true, though, that when you've referred other clients
to Mr. Carter that you never personally delivered and presented that
client to him in his office?
A. But I delivered Maggie Williams to him in my office. I had
Maggie Williams to come to my office, and it was in my office that I
introduced, uh, Maggie Williams to Mr. Carter, and she chose other
counsel. I would have happily taken Maggie Williams to his office.
Q. But this is the only occasion that you took your Akin, Gump-
chauffeured vehicle and delivered the client to Mr. Carter in his
office?
A. It was.
Q. Now, we're not going to go through, probably to your relief,
each day's phone calls, but is it safe to say that Ms. Lewinsky called
you regularly, both keeping you posted on her interviews and contacts,
but also asking you what you knew about her job desires?
A. That is correct.
Q. And it is also true that during this process, you kept the
President informed?
A. That, too, is correct.
Q. And did the President ever give you any other instruction other
than to find Ms. Lewinsky a job in New York?
A. I do not view the President as giving me instructions. The
President is a friend of mine, and I don't believe friends instruct
friends. Our friendship is one of parity and equality.
Q. Let me rephrase it, and that's--
A. Thank you.
Q. That's a fair comment that you certainly made.
Did you ever receive any other request from the President in
reference to your dealing with Monica Lewinsky other than the request
to find her a job in New York?
A. That is correct.
MR. HUTCHINSON: I've been informed that there's a few minutes left
on the tape. Do you want to break?
THE VIDEOGRAPHER: Yes.
SENATOR THOMPSON: All right. Let's take a 5-minute break at this
point.
Also, if it's not objectionable to anyone, let's move a little
closer to 1 o'clock, after all, for lunch, if that's okay. We have a
conference that that will coincide with a little better, but for right
now, let's take a 5-minute break.
SENATOR DODD: Just before we do, just to make it--and the
admonition about these--these--this matter being in--confidential.
SENATOR THOMPSON: Right.
SENATOR DODD: And I'm going to restate that over and over again
today, so that people understand the rules under which we're operating
here, and this is confidential and no one is to reveal anything they
hear, except to the people that was listed in Senator Thompson's
opening remarks.
SENATOR THOMPSON: Absolutely.
We'll be in recess.
THE VIDEOGRAPHER: This marks the end of Videotape Number 1 in the
deposition of Vernon E. Jordan, Jr. We are going off the record at
11:35 a.m.
[Recess.]
THE VIDEOGRAPHER: This marks the beginning of Videotape Number 2 in
the deposition of Vernon E. Jordan, Jr. We are going back on the record
at 11:49 a.m.
SENATOR THOMPSON: All right, Mr. Hutchinson, and you have consumed
an hour and 40 minutes.
MR. HUTCHINSON: Thank you, Senator Thompson.
BY MR. HUTCHINSON:
Q. Mr. Jordan, I was reminded that the last question I asked you
received an answer that I didn't, at least, understand, so I'm going to
reask that question, and the question that I had asked, I believe, was:
Did you ever receive any other request from the President in reference
to your dealings with Ms. Lewinsky other than the request to find her a
job in New York? And I think your answer was: That's correct. And that
confuses me a little bit, so let me rephrase the question.
Did you ever receive--not rephrase it, but restate the question.
Did you ever receive any other request from the President in reference
to your dealings with Monica Lewinsky other than the request to find
her a job in New York?
A. I did not.
Q. Now, let me go to December 31, 1997, in reference to another
issue that Ms. Lewinsky has testified about in her August grand jury
appearance and in which you have not had the opportunity to discuss in
detail.
Ms. Lewinsky has testified that she met you for breakfast at the
Park Hyatt--
MR. HUNDLEY: Excuse me. I think you misspoke yourself. You said
'97.
MR. HUTCHINSON: This is '97, right?
MR. HUNDLEY: It is? I apologize.
MR. HUTCHINSON: Okay. Thank you, Mr. Hundley. The years are
confusing, but I believe this is December 31, 1997.
BY MR. HUTCHINSON:
Q. And Ms. Lewinsky has testified that she met you for breakfast at
the Park Hyatt, and even specifically as to what she had for breakfast
on that particular occasion when she met with you and as to the
conversation that she had.
And I want to show you, in order to hopefully refresh your
recollection, an exhibit which I'm going to mark as the next exhibit
number, which will be 6, I believe?
SENATOR THOMPSON: Yes. What--
MR. HUTCHINSON: And it's in the binder as Exhibit 42. It is not
there, but it is in the binder as Exhibit 42.
SENATOR THOMPSON: Let's take a moment so everyone can refer to
that.
BY MR. HUTCHINSON:
Q. Have you located that, Mr. Jordan?
A. [Nodding head up and down.]
Q. And this receipt, is this a receipt for a charge that you had at
the Park Hyatt on December 31st?
A. That's an American Express receipt for breakfast.
Q. And is the date December 31st?
A. That is correct.
Q. And does it reflect the items that were consumed at that
breakfast?
A. It reflects the items that were paid for at that breakfast.
[Laughter.]
BY MR. HUTCHINSON:
Q. Does it appear to you that this is a breakfast for two people?
A. The price suggests that it was a breakfast for two people.
Q. All right. And the fact that there's two coffees, there is one
omelet, one English muffin, one hot cereal, and can you identify from
that what you ordinarily eat at breakfast?
A. What I ordinarily eat at breakfast varies. This morning, it was
fish and grits.
Q. All right. Now, Ms. Lewinsky in her testimony, I think,
referenced as to what she ate, which I believe would be confirmed in
this record.
Do you recall a meeting with Ms. Lewinsky at the Park Hyatt on
December 31st of--
A. If you--
Q. --1997?
A. If you would refer to my testimony before the grand jury when
asked about a breakfast with Ms. Lewinsky on December 31st, I testified
that I did not have breakfast with Ms. Lewinsky on December 31st
because I did not remember having had breakfast with Ms. Lewinsky on
December 31st. It was not on my calendar. It was New Year's Eve. I have
breakfast at the Park Hyatt Hotel three or four times a week if I am in
town, and so I really did not remember having breakfast with Ms.
Lewinsky. And that's an honest statement, I did not remember, and I
told that to the grand jury.
It is clear, based on the evidence here, that I was at the Park
Hyatt on December 31st. So I do not deny, despite my testimony before
the grand jury, that on December 31st that I was there with Ms.
Lewinsky, but I did testify before the grand jury that I did not
remember having a breakfast with her on that date, and that was the
truth.
My recollection has subsequently been refreshed, and--and so it
is--it is undeniable that there was a breakfast in my usual breakfast
place, in the corner at the Park Hyatt. I'm there all the time.
Q. All right. And so--and that would be with Ms. Lewinsky?
A. Yes.
Q. And so the--so your memory has been refreshed, and I appreciate
the statement that you just made.
Let me go to that meeting with her and ask whether during this
occasion that you met her for breakfast that there was a discussion
about Ms. Linda Tripp and Ms. Lewinsky's relationship with her and
conversations with her.
A. I also testified in my grand jury testimony that I never heard
the name ``Linda Tripp'' until such time that I saw the Drudge Report.
I did not have a conversation with Ms. Lewinsky at the breakfast at the
Park Hyatt Hotel on December 31st about Linda Tripp. I never heard the
name ``Linda Tripp,'' knew nothing about Linda Tripp until I read the
Drudge Report.
Q. All right. And do you recall a discussion with Ms. Lewinsky at
the Park Hyatt on this occasion in which there were notes discussed
that she had written to the President?
A. I am certain that Ms. Lewinsky talked to me about notes.
Q. On this occasion?
A. Yes.
Q. And would these have been notes that she would have sent to the
President?
A. I think that there was--these notes had to do with
correspondence between Ms. Lewinsky and the President.
Q. And would have she mentioned the retention or copies of some of
that correspondence on her computer in her apartment?
A. She may have done that.
Q. And did you ask her a question, were these notes from the
President to you?
A. I understood from our conversation that she and the President
had correspondence that went back and forth.
Q. And did you make a statement to her, ``Go home and make sure
they're not there''?
A. Mr. Hutchinson, I'm a lawyer and I'm a loyal friend, but I'm not
a fool, and the notion that I would suggest to anybody that they
destroy anything just defies anything that I know about myself. So the
notion that I said to her go home and destroy notes is ridiculous.
Q. Well, I appreciate that reminder of ethical responsibilities. It
was--
A. No, it had nothing to do with ethics, as much as it's just good
common sense, mother wit. You remember that in the South.
Q. And so--and let me read a statement that she made to the grand
jury on August 6th, 1998. This is the testimony of Ms. Lewinsky,
referring to a conversation with you at the Park Hyatt that, ``She,''
referring to Linda Tripp, ``was my friend. I didn't really trust her. I
used to trust her, but I didn't trust her anymore, and I was a little
bit concerned because she had spent the night at my home a few times,
and I thought--I told Mr. Jordan. I said, `Well, maybe she's heard
some'--you know, I mean, maybe she saw some notes lying around, and Mr.
Jordan said, `Notes from the President to you?,' and I said, `No. Notes
from me to the President,' and he said, `Go home and make sure they're
not there.' ''
A. And, Mr. Hutchinson, I'm saying to you that I never heard the
name ``Linda Tripp'' until I read the Judge--Drudge Report.
Secondly, let me say to you that I, too, have read Ms. Lewinsky's
testimony about that breakfast, and I can say to you, without fear of
contradiction on my part, maybe on her part, that the notion that I
told her to go home and destroy notes is just out of the question.
Q. And so this is not a matter of you not recalling whether that
occurred or not--
A. I am telling you--
Q. Well, let me--
A. --emphatically--
Q. Mr. Jordan, let me finish the question.
A. Okay, all right.
Q. Please, sir.
A. Okay.
Q. It's sort of important for the record.
This is a statement by Ms. Lewinsky that you flatly and
categorically deny?
A. Absolutely.
Q. Now, you talked about ``mother wit,'' I think it was; that you
knew at the time that you had this discussion with Ms. Lewinsky that
these notes would have been covered by the subpoena based upon your
discussion of that on December 19th?
A. Ask that question again.
Q. All right. This is a meeting on December 31st at the Park Hyatt.
A. Right.
Q. A discussion about the notes, correspondence between Ms.
Lewinsky and the President.
A. Right.
Q. You are aware, based upon your discussion of the subpoena on
December 19th, that these were covered under the subpoena?
A. Yes.
Q. And did you tell Ms. Lewinsky that you need to make sure you
tell your attorney, Mr. Carter, and that these are turned over under
the subpoena?
A. What I did not tell her was to destroy the notes. Whether I told
her to give them to Mr. Carter or not, I have no recollection of that.
Q. But you knew at the time that these notes were a matter of
evidence?
A. I think that's a valid assumption.
Q. But you knew that?
A. It's a valid assumption.
Q. Now, during this meeting at the Park Hyatt, did Ms. Lewinsky
also make it clear to you that she was in love with the President?
A. That, I had already concluded.
Q. And if Ms.--now, was there anything else at the Park Hyatt at
this meeting on December 31st that you recall discussing with Ms.
Lewinsky?
A. Job, work, in New York, in the private sector.
Q. And that was the--was this a meeting that was set up at her
request or your request?
A. I'm certain it was at her request. I am fairly certain that I
did not call Ms. Lewinsky and say will you join me at the Park Hyatt
for breakfast on December 31st, on New Year's Eve.
Q. All right. And did you also talk about her situation under the
subpoena and the fact that she was going to have to give testimony, it
looked like?
A. I am not Ms. Lewinsky's lawyer, and I did not view it as my
responsibility to give Ms. Lewinsky advice and counsel.
I had found her very able, competent counsel.
Q. Respectfully, I am simply asking whether that was discussed.
A. And I am simply saying to you, I did not provide her legal
counsel.
Q. Okay. Was it discussed in--not in terms of legal representation,
but in terms of Mr. Jordan to Monica Lewinsky about any emotional
concerns she might have about pending testimony?
A. I have no recollection of talking to her about pending
testimony.
Q. Fair enough. Now, let's go back to Mr. Carter's representation
of Ms. Lewinsky that you referred to. Were you aware that Mr. Carter
was preparing an affidavit for Ms. Lewinsky to sign in the Jones case?
A. Yes.
Q. And on or about the 6th or 7th of January, did you become aware
that she in fact had signed the affidavit and that Mr. Carter had filed
a motion to quash her subpoena in the case?
A. She told me that she had signed the affidavit.
Q. And did in fact Mr. Carter also relate to you that that had
occurred?
A. Yes.
Q. And I think you made a statement in your March grand jury
testimony that there was no reason for accountability, that he
reassured me that he had things under control?
A. That is correct. I stand by that testimony.
Q. And now, if you would, look at the next exhibit, which is in
that stapled bunch of exhibits that have been provided to you.
MR. HUTCHINSON: This will be Exhibit No. 7, we'll mark for your
deposition.
And, Senator, did we put Exhibit No. 6 in?
SENATOR THOMPSON: No, we didn't.
MR. HUTCHINSON: I would like to offer that as an exhibit to this
deposition.
SENATOR THOMPSON: It will be made a part of the record.
[Jordan Deposition Exhibit Nos. 6 and 7 marked for identification.]
[Witness perusing document.]
SENATOR DODD: That is Number 6?
MR. HUTCHINSON: Six. That's the Park Hyatt.
SENATOR DODD: Oh, that is going to be Number 6, the Park Hyatt, not
the--
MR. HUTCHINSON: Yes.
SENATOR THOMPSON: Now, what is 7?
MR. HUTCHINSON: Now, 7 is the affidavit of Jane Doe Number 6, which
in the--I think everybody has found that in the book.
SENATOR THOMPSON: What is the grand jury number?
MR. HUTCHINSON: It's 85, the grand jury number.
This will be Deposition Exhibit Number 7.
BY MR. HUTCHINSON:
Q. Now, Mr. Jordan, I think you're reviewing that.
This affidavit bears the signature on the last page of Monica S.
Lewinsky, is that correct?
A. Yes.
Q. And have you ever seen this signed affidavit before?
A. I don't think so.
Q. Do you not recall that Ms. Lewinsky brought this in and showed
it to you?
A. She may have.
Q. And I'd be glad to refresh you. I know that some of this--
A. Yeah, if it's in the testimony, Congressman.
Q. Page 192 of your previous grand jury testimony. Is it your
recollection that she showed this to you in a meeting in your office
after she had signed it?
A. I stand by that testimony.
Q. And so the date of that signature of Ms. Lewinsky, is that
January 7?
A. January 7th, 1998.
Q. All right. Now, whenever she presented this signed affidavit to
you, did you read it sufficiently to know that it stated that Ms.
Lewinsky did not have a sexual relationship with the President?
A. I was aware that that was in the affidavit.
Q. And I believe you previously testified that you're a quick
reader and you skimmed it and familiarized yourself with it?
A. Skimmed it.
Q. And prior to seeing the signed affidavit that she brought to
you, the day after it was signed, was there a time that Ms. Lewinsky
called you concerning the affidavit and said that she had some
questions about the draft of the affidavit?
A. Yes. I do recollect her calling me and asking me about the
affidavit, and I said to her that she should talk to the--talk to Frank
Carter, her counsel, about the affidavit and not to me.
Q. And if I could go into, again, some areas that had not been
previously asked to you, and since Ms. Lewinsky testified to the grand
jury on August 6th.
Ms. Lewinsky has testified that she dropped a copy of the affidavit
to you, and that you--and that you and she had a telephone conversation
in which you discussed changes to the affidavit. Does this refresh your
recollection, and do you agree with Ms. Lewinsky's recollection of a
discussion on changes in the affidavit?
A. I do agree with the assumption--I mean, I do agree with the
statement that Ms. Lewinsky dropped the affidavit off and called me up
about the affidavit and was quite verbose about it, and I sort of
listened and said to her, ``You need to talk to Frank Carter.''
She was not satisfied with that, and so she kept talking and I kept
doodling and listening as she went on in sort of a, for lack of a
better word, babble about this--about this thing, but it was not my job
to advise her about an affidavit. I don't do affidavits.
Q. Now, if I may show you, which would be Exhibit--
MR. HUTCHINSON: First, let me go ahead and offer 7.
SENATOR THOMPSON: It's made a part of the record.
[Jordan Deposition Exhibit No. 7 received in evidence.]
MR. HUTCHINSON: It's part of the record.
And then go to Exhibit 8, which was marked as Exhibit 39 as your
previous grand jury testimony.
[Jordan Deposition Exhibit No. 8 marked for identification.]
[Witness perusing document.]
BY MR. HUTCHINSON:
Q. Now, Exhibit 8 is a summary of telephone calls on January 6th,
which would be the day before the affidavit was signed by Ms. Lewinsky
on the 7th.
Now, you can reflect on that for a moment, but in reviewing these
calls, it appears that Mr. Carter was paging Ms. Lewinsky early on in
the day, 11:32 a.m., and then at 3:26, you had a telephone call with
Mr. Carter for 6 minutes and 42 seconds.
And then there was--call number 6 was to Ms. Lewinsky, which was
obviously a 24-second short call, and then a subsequent call for almost
6 minutes at 3:49 p.m. to Ms. Lewinsky.
Was this last call for 5 minutes to Ms. Lewinsky the call that you
just referenced in which the draft affidavit was discussed?
A. I think that is correct. The 24-second call, I think, was voice
mail.
Q. Was--was--pardon?
A. Voice mail.
Q. Certainly.
And subsequent to your conversation with Ms. Lewinsky for 5 minutes
and 54 seconds, did you have two calls to Mr. Carter, which would be
No. 9 and 10?
[Witness perusing document.]
THE WITNESS: Yes.
BY MR. HUTCHINSON:
Q. Do you know why you would have been calling Mr. Carter on three
occasions, the day before the affidavit was signed?
A. Yeah. I--my recollection is--is that I was exchanging or sharing
with Mr. Carter what had gone on, what she had asked me to do, what I
refused to do, reaffirming to him that he was the lawyer and I was not
the lawyer. I mean, it would be so presumptuous of me to try to advise
Frank Carter as to how to practice law.
Q. Would you have been relating to Mr. Carter your conversations
with Ms. Lewinsky?
A. I may have.
Q. And if Ms. Lewinsky expressed to you any concerns about the
affidavit, would you have relayed those to Mr. Carter?
A. Yes.
Q. And if Mr. Carter was a good attorney that was concerned about
the economics of law practice, he would have likely billed Ms. Lewinsky
for some of those telephone calls?
A. You have to talk to Mr. Carter about his billing.
Q. It wouldn't surprise you if his billing did reflect a--a charge
for a telephone conversation with Mr. Jordan?
A. Keep in mind that Mr. Carter spent most of his time in being a
legal services lawyer. I think his concentration is primarily on
service, rather than billing.
Q. But, again, based upon the conversations you had with him, which
sounds like conversations of substance in reference to the affidavit,
that it would be consistent with the practice of law if he charged for
those conversations?
A. That's a question you'd have to ask Mr. Carter.
Q. They were conversations of substance with Mr. Carter concerning
the affidavit?
A. And they were likely conversations about more than Ms. Lewinsky.
Q. But the answer was yes, that they were conversations of
substance in reference to the affidavit?
A. Or at least a portion of them.
Q. In other words, other things might have been discussed?
A. Yes.
Q. In your conversation with Ms. Lewinsky prior to the affidavit
being signed, did you in fact talk to her about both the job and her
concerns about parts of the affidavit?
A. I have never in any conversation with Ms. Lewinsky talked to her
about the job, on one hand, or job being interrelated with the
conversation about the affidavit. The affidavit was over here. The job
was over here.
Q. But the--in the same conversations, both her interest in a job
and her discussions about the affidavit were contained in the same
conversation?
A. As I said to you before, Counselor, she was always interested in
the job.
Q. Okay. And she was always interested in the job, and so, if she
brought up the affidavit, very likely it was in the same conversation?
A. No doubt.
Q. And that would be consistent with your previous grand jury
testimony when you expressed that you talked to her both about the job
and her concerns about parts of the affidavit?
A. That is correct.
Q. Now, on January 7th, the affidavit was signed. Subsequent to
this, did you notify anyone in the White House that the affidavit in
the Jones case had been signed by Ms. Lewinsky?
A. Yeah. I'm certain I told Betty Currie, and I'm fairly certain
that I told the President.
Q. And why did you tell Betty Currie?
A. I'm--I kept them informed about everybody else that was--
everything else. There was no reason not to tell them about that she
had signed the affidavit.
Q. And why did you tell the President?
A. The President was obviously interested in her job search. We had
talked about the affidavit. He knew that she had a lawyer. It was in
the due course of a conversation. I would say, ``Mr. President, she
signed the affidavit. She signed the affidavit.''
Q. And what was his response when you informed him that she had
signed the affidavit?
A. ``Thank you very much.''
Q. All right. And would you also have been giving him a report on
the status of the job search at the same time?
A. He may have asked about that, and--and part of her problem was
that, you know, she was--there was a great deal of anxiety about the
job. She wanted the job. She was unemployed, and she wanted to work.
Q. Now, I think you indicated that he was obviously concerned
about--was it her representation and the affidavit?
A. I told him that I had found counsel for her, and I told him that
she had signed the affidavit.
Q. Okay. You indicated that he was concerned, obviously, about
something. What was he obviously concerned about in your conversations
with him?
A. Throughout, he had been concerned about her getting employment
in New York, period.
Q. And he was also concerned about the affidavit?
A. I don't know that that was concern. I did tell him that the
affidavit was signed. He knew that she had counsel, and he knew that I
had arranged the counsel.
Q. Do you know whether or not the President of the United States
ever talked to her counsel, Mr. Carter?
A. I have--I have no knowledge of that.
Q. Did you ever relate to Mr. Carter that you were having
discussions with the President concerning his representation of Ms.
Lewinsky and whether she had signed the affidavit?
A. I don't know whether I told him that she had--he had--I don't
know whether I told Mr. Carter that I told the President he had signed
the affidavit. It is--it is not beyond reasonableness.
Q. Now let's go on. After the affidavit was signed, were you
ultimately successful in obtaining Ms. Lewinsky a job?
A. Yes.
Q. And in fact, the day after Ms. Lewinsky signed the affidavit,
you placed a personal call to Mr. Ron Perelman of Revlon, encouraging
him to take a second look at Ms. Lewinsky?
A. That is correct, based on the fact that Ms. Lewinsky thought
that her interview had not gone well, when in fact it had gone well.
Q. Okay. And in fact, Ms. Lewinsky had called you on a couple of
occasions after the interview and finally got a hold of you and told
you she thought the interview went poorly?
A. That's correct.
Q. And as a response to that information, you did not call Mr.
Halperin back, who you had previously talked to about the issue, but
you called Mr. Perelman?
A. That's right.
Q. Was there a reason that you called Mr. Perelman in contrast to
Mr. Halperin?
A. Well, the same reason I would have called you about a committee
if you were chairman of it, as opposed to calling to a member of the
committee.
Q. All right. You wanted to go to the top?
A. When it's necessary.
Q. And I remember a phrase you used. I might not have it exactly
right, but you don't get any richer or more powerful than Mr. Perelman?
A. Certainly not much richer.
Q. Okay. And--and so you had a conversation with Mr. Perelman, and
did you tell him something like, make it happen if it can happen?
A. I said, ``This young lady''--I mean, I think I said, ``This
young lady has been interviewed. She thinks it did not go well. Would
you look into it?''
Q. And what was his response?
A. That he would look into it.
Q. Now I'd like to show you the next exhibit, and before I do that,
I would go back and offer Number 7.
SENATOR THOMPSON: Seven is the last.
This would be Number 8 that you--that you have been discussing. The
compilation of the telephone call record?
MR. HUTCHINSON: Yes.
MR. KENDALL: I object. Same ground as before. It's not best
evidence. We don't know who compiled these. These are not primary
records.
SENATOR THOMPSON: Mr. Jordan has verified several of these items,
but I do notice there are some items here that do not have to do with
Mr. Jordan, that we could not expect him to be able to verify.
So I would ask counsel, if he needs to identify any more of these
conversations and use this to reflect Mr. Jordan's memory, he's free to
do so, but as an exhibit, I think the objection is probably well taken.
MR. HUTCHINSON: Let me just state, Senator, that this is a
compilation of calls based upon the records that have been in the
Senate record, and this has been--this compilation has been in there
some time.
Now, I, quite frankly, understand the objection, and it might have
meritorious if this was being introduced into evidence in the actual
trial, and so I would suggest perhaps, since he's identified most of
the calls already, that this could be referenced as a deposition
exhibit because he's referred to it and that's helpful, without--
obviously, there might in a more--it might not be entered into evidence
as such.
SENATOR THOMPSON: Could I ask you if it's been in the record as a
compilation?
MR. HUTCHINSON: Yes, it has.
SENATOR THOMPSON: In this form? I notice that it has a grand jury--
MR. HUTCHINSON: It's--Senator, it's Volume III of the Senate
record, page 161, and so it's all in there, anyway.
SENATOR THOMPSON: I notice in the record here, counsel is informing
me that it is in the record, but there are several redactions. Is that
correct?
MR. HUTCHINSON: That is correct, and for that reason--in fact, a
number of these summaries are not redacted in our form and they're
redacted in the record, and we'd like to have the opportunity to redact
it in the form of taking out the personal telephone numbers.
MR. KENDALL: Senator Thompson, if I may be heard, my objection is--
to this is a summary. We don't know who did it. We don't know what it's
based on.
The witness has testified, and his testimony is in the record, so
far as his recollection is refreshed.
I have no objection to original phone records, but I do object to
the summary.
SENATOR THOMPSON: Counsel, could I suggest that maybe you just make
a reference specifically to where it is in the existing record? I think
it would serve your same purpose and to keep you from having--
MR. HUTCHINSON: Sure.
SENATOR THOMPSON: --to go through and redact everything. Would that
be satisfactory?
MR. HUTCHINSON: I think that would be satisfactory, and what I can
do is that I can withdraw this exhibit and reference in the transcript
of this deposition that the exhibit is found in Table 35 of Senate
record, Volume III, at page 161.
SENATOR DODD: Let me just ask the House Manager, if I can as well.
Are these from the Senate record? I'm told that some of these are not
from the Senate record, and we're kind of confined to the Senate
record, as I understand it.
MR. HUTCHINSON: Well, other than the redactions, this summary
itself is in the Senate record.
SENATOR THOMPSON: Yes.
Counsel informs me, it's already in. It refers to evidentiary
record Volume IV.
MS. BOGART: Is it IV or III?
SENATOR THOMPSON: It says IV here, Part 2 of--Part 2 of 3.
So, for the record, this would be pages 1884 and 1885 of the
evidentiary record, Volume IV, Part 2 of 3, all right?
MR. HUTCHINSON: Thank you.
SENATOR THOMPSON: All right. So the record will be--the objection
will be sustained, and reference has been made.
SENATOR DODD: And can we just--because I presume you may have more
of these coming along, and it seems to me you might want to have staff
or others begin to work so we don't go through this every time,
particularly with the unredacted material that may be included in here,
which is not part of the Senate record.
The unredacted information comes out of the House record, as I
understand, and that is a distinction.
MR. HUNDLEY: I would just add that Mr. Jordan--the last 3 days of
his grand jury testimony, they asked him about every phone call, and if
you want to use those, you know, go to his grand jury testimony, you
know, I think it would move things along.
There isn't a phone call. We produced like a telephone book of
phone calls that Mr. Jordan made, and they called them all out, after
they got through asking about who's that, who's that and who's the--
you've got a pretty good record of calls that might have some relevance
in this.
SENATOR THOMPSON: All right, sir. All right.
SENATOR DODD: Let me also just suggest on the earlier--Senator
Thompson, in the earlier objection raised by Counsel Kendall, sustained
the objection, but had made reference to the fact that since this
material had been brought into the record that those--if any
documentation is included there, that we--we do use the Senate
documents with the redacted information, rather than the House records
for the purposes of this deposition.
SENATOR THOMPSON: All right, sir.
MR. HUTCHINSON: Thank you.
SENATOR THOMPSON: Proceed.
BY MR. HUTCHINSON:
Q. And I will handle it this way, Mr. Jordan, and let me say that I
was sort of constructing my questioning, so as not to get bogged down
in an extraordinary number of telephone calls, but let me go to the
chart in front of you which is Grand Jury Exhibit 44, which is marked
for our purposes as Exhibit 9 for identification purposes.
[Jordan Deposition Exhibit No. 9 marked for identification.]
[Witness perusing document.]
BY MR. HUTCHINSON:
Q. And I'm going to--I'd like for you to refer that--refer you to
that for purposes of putting this particular day, January 8th, in
context and asking you some questions about some of those telephone
calls.
SENATOR THOMPSON: I'm sorry. What was the question? Are you making
reference for identification purposes?
MR. HUTCHINSON: Yes. This is Exhibit 9, which is Grand Jury Exhibit
44.
SENATOR THOMPSON: All right, for identification purposes.
MR. HUTCHINSON: Yes.
SENATOR THOMPSON: All right.
BY MR. HUTCHINSON:
Q. Now, this is the day, January 8th, which is the day that Ms.
Lewinsky felt like she had a poor job interview. Does this reflect
calls from the Peter Strauss residence to your office?
A. I see a call number 3, 11:50 a.m., Peter Strauss residence. The
number is here to my office.
Q. All right.
A. And it says length of call, one minute.
Q. All right. And, in fact, calls 3, 4 and 5 and 9 are calls from
the Peter Strauss residence to your office?
A. That is correct.
Q. And Peter Strauss is the residence in which Ms. Lewinsky was
staying while in New York?
A. I just know that Peter Strauss, my old friend, is Monica
Lewinsky's stepfather.
MR. HUNDLEY: But he wasn't there.
THE WITNESS: You know, where she was and all of that, I don't know.
I'm just--
BY MR. HUTCHINSON:
Q. You received calls from Ms. Lewinsky on this particular day?
A. From this number, according to this piece of paper.
Q. And does this time reference coincide with your recollection as
to when you received calls from Ms. Lewinsky on this particular day?
A. Yes.
Q. And during these calls is when she related the difficulty of the
job interview; is that correct?
A. I believe so--that it had not gone well.
Q. All right. And then, subsequently, you put in a call to Mr.
Perelman at Revlon?
A. Yes.
Q. And that was to encourage him to take a second look. Is that
call number 6 on this summary?
A. Call number 6; it lasted one minute and 42 seconds.
Q. And is that the call that you placed to Mr. Perelman?
A. I believe that is correct.
Q. And this was subsequent to the calls that you received from Ms.
Lewinsky?
A. That is correct.
Q. And then you let Ms. Lewinsky know that you had called Mr.
Perelman; and do you recall what you would have told her at that time?
A. I think I told her that I had spoken with, uh--with, uh, Mr.
Perelman, the chairman, and that I was hopeful that things would work
out.
Q. All right. And, in fact, they did work out because the next day
you were informed that a temporary job--or a preliminary job offer had
been made to Ms. Lewinsky?
A. That's right.
Q. So she was able to secure the job based upon your call to Mr.
Perelman?
A. Based upon my call, from the time that I called Halperin through
to Mr. Perelman.
Q. All right.
A. I take credit for that.
Q. All right. Now, in fact, you've used terms like ``the Jordan
magic worked''?
A. It--it has from time to time.
Q. And it did on this occasion?
A. I believe so.
Q. And then, you also informed Ms. Betty Currie that the mission
was accomplished?
A. Yes.
Q. And after securing the job for Ms. Lewinsky, you did inform
Betty Currie of that fact?
A. And the President.
Q. All right. And was the purpose of letting Betty Currie know so
that she could tell the President?
A. She saw the President much more often that I did.
Q. And--but you wanted to inform the President personally that you
were successful in getting Ms. Lewinsky a job?
A. Yes.
Q. And you did that, uh--was it on the--what, the day after she
secured the job or the day--the day that she secured the job?
A. I don't know the answer to that.
Q. Well, shortly thereafter is it fair to say that you informed the
President personally?
A. I certainly told him.
Q. All right. Now, at this point, you had successfully obtained a
job for Ms. Lewinsky at the request of the President, and you had been
successful in obtaining an attorney for Ms. Lewinsky. Did you see your
responsibilities in regard to Ms. Lewinsky as continuing or completed?
A. I don't know, uh, that I saw them as, uh, necessary completed.
There is--as you know from your own experience in helping young people
with work, there tends to be some sense of responsibility to follow
through, that they get to work on time, that they work hard, and that
they succeed. So I don't think that I felt that my responsibility had
terminated. I felt like I had a continuing responsibility to just make
sure that it happened and that she--that it worked out all right. But I
don't think I acted on that responsibility.
Q. Well, this is--the job was completed--I believe it was January
8th when she secured the job?
A. That was the day that I called Ronald Perelman.
Q. Okay, so it would have been the 9th that she would have been
informed that she had the job.
A. That's right.
Q. So this is the 9th of January, and that mission had been
accomplished. Now, I want you to recall your testimony of May 28th
before the grand jury in which the question was asked to you--and this
is at page 81; the question begins at the bottom of page 80.
Question: ``When you introduced Monica Lewinsky to Frank Carter on
December 22, 1997, what further involvement did you expect to have with
Monica Lewinsky and Frank Carter?''
Answer: ``Beyond getting her the job, I thought it was finished,
done''--and what's that last word you used?
A. ``Fini.''
Q. ``Fini.'' And so that was the basis on the question, was your
previous testimony that after you got Ms. Lewinsky a job and after you
secured her attorney, there was really no other need for involvement or
continued meetings with her?
A. That is correct. That does not mean, on the other hand, that,
uh, if you go to a meeting at the board, that you don't stop in and see
how--how people are doing. In this circumstance, that process was
short-circuited very quickly.
Q. I'm sorry?
A. She never ended up working there. You--you--you do remember
that.
Q. Now, but you had described your frequent telephone calls from
Ms. Lewinsky as being bordering on annoyance, I think. Is that a fair
characterization?
A. That's a fair characterization.
Q. And you're a busy man. You stopped billing at $450 an hour.
You're having calls from Ms. Lewinsky. Were you glad at this point to
have this ``bordering on annoyance'' situation completed?
A. ``Glad'' is probably the wrong word. ``Relieved'' is maybe a
better word.
Q. All right. Now, during the time that you were helping Ms.
Lewinsky secure a job, this was widely known at the White House, is
that correct?
A. I--I don't know the extent to which it was widely known. I dealt
with Ms. Currie and with the President.
Q. In fact, Ms. Cheryl Mills, sitting here at counsel table, knew
that you were helping Ms. Lewinsky?
A. I believe that's true.
Q. And Betty Currie knew that you were helping Ms. Lewinsky?
A. Yes.
Q. The President knew it?
A. Yes.
Q. And you presumed that Bruce Lindsey knew it?
A. I presumed that. That's a very small number, given the number of
people who work at the White House.
Q. Now, after that December 19 meeting--and I'm backtracking a
little bit--the meeting that you had with Ms. Lewinsky in which she
covered with you the fact that she had been subpoenaed, after that, you
had numerous conversations with Ms. Betty Currie; is that correct?
A. I'm not sure I had numerous conversations with Ms. Betty Currie,
but I have always during this administration been in touch with Ms.
Currie.
Q. And during those conversations with Ms. Betty Currie, did you
let her know that Ms. Lewinsky had been subpoenaed?
A. I think I've testified to that.
Q. All right, and so would that have been fairly shortly after the
meeting on December 19th with Ms. Lewinsky that you notified Betty
Currie that Ms. Lewinsky had in fact been subpoenaed?
A. I--I think that's safe to say, Counselor.
MR. HUTCHINSON: Senator, I--this would be a good time for a break,
if that would meet with your approval, for lunch.
SENATOR THOMPSON: All right, sir.
MR. HUTCHINSON: And I'm--it's hard to estimate, and you probably
don't trust lawyers when they tell you how long it's going to take
after lunch, but--
SENATOR THOMPSON: Try your best. Do you want to make an estimate,
or you'd rather not?
MR. HUTCHINSON: Oh, I think it would be less than an hour that I
would have remaining, and most likely much shorter than that.
SENATOR THOMPSON: All right, sir.
THE WITNESS: May I make a suggestion? It's 25 minutes to 1. Do you
want to go to 1 o'clock?
MR. HUTCHINSON: I think a break would be helpful.
THE WITNESS: To you or to me?
[Laughter.]
SENATOR THOMPSON: I think some of us have some scheduling issues,
and I do understand that, so I'm open to any suggestions, Senator Dodd
or anyone else, as to how long we want to take. Yesterday, they took an
hour. I'm not--we have a conference and I could use a little extra
time, I suppose, in addition to the hour, but it's not of major concern
to me.
I assume you want to get back as soon as possible.
THE WITNESS: I'm prepared to forgo lunch and stay here as long as
need be so we can finish. And we don't have to have lunch; we can just
keep going, if it's all right with counsel.
SENATOR THOMPSON: Well, we've got some scheduling issues that we
are going to have to take care of. So let's just make it--let's just
make it--
SENATOR DODD: That clock is a little fast, I think.
SENATOR THOMPSON: Is it?
SENATOR DODD: Is that right? It's about 12:30?
THE VIDEOGRAPHER: It's 12:35.
SENATOR DODD: So an hour and 15 minutes. Is that--
SENATOR THOMPSON: What about--what about--let's come back at 1:45.
That will be about, what--that's an hour and 10 minutes, isn't it, or 8
minutes, something like that?
All right. Without objection, then--
SERGEANT-AT-ARMS: Senator, we have lunch outside here. It's
sandwiches--
SENATOR DODD: Can we go off the record?
SENATOR THOMPSON: Are we off the record? Let's go off the record.
THE VIDEOGRAPHER: We're going off the record now at 12:33 p.m.
[Whereupon, at 12:33 p.m., a luncheon recess was taken.]
afternoon session
THE VIDEOGRAPHER: We are going back on the record at 1349 hours.
SENATOR THOMPSON: All right. Mr. Hutchinson?
MR. HUTCHINSON: Thank you, Senators.
direct examination by house managers--resumed
BY MR. HUTCHINSON:
Q. Mr. Jordan, good afternoon.
A. Good afternoon.
Q. You testified very clearly earlier today that you were a close
friend of the President. Would you also describe yourself as a friend
of Mr. Kendall, sitting to my left, one of the attorneys for the
President?
A. Not only is Mr. Kendall my friend, Mr. Kendall has,
unfortunately, the distinction of graduating from Wabash College, a
little, small town in Indiana, and I'm a graduate of DePauw University,
and we have a 100-year rivalry. And Mr. Kendall and I bet.
Mr. Hutchinson, I am pleased to tell you that Mr. Kendall is in
debt to me for 2 years because DePauw--
MR. KENDALL: May I object?
[Laughter.]
THE WITNESS: --because DePauw University has defeated Wabash
College two times in succession. And so, yes, we are very good friends.
I have great respect for him as a person, as a lawyer, and despite his
undergraduate degree from Wabash, I respect his intellect.
BY MR. HUTCHINSON:
Q. May I assume from that answer that the answer to my question is
yes?
A. The answer--the answer to your question is, indubitably, yes.
Q. Now I am going to ask another question in similar vein. You can
answer yes or no. Do you consider yourself a friend of Cheryl Mills?
A. That requires more than just a ``yes'' answer.
Q. I do not want to shortchange her, but I know that--in fact, I
think you might have, to a certain extent, mentored her. Is that a fair
description?
A. And vice versa.
Q. All right. And Bruce Lindsey, is he also a friend of yours?
A. Yes.
Q. Now--so when was the last time that you met with any member of
the President's defense team?
A. I have not had a meeting with a member of the President's
defense team. They were right nextdoor to me just a few minutes ago,
and we said hello, but we have not had a meeting. And maybe if you'd
tell me about what, I can be more specific.
Q. Well--and that's a good point. Certainly, we're lawyers, and we
have casual conversations, and we visit and we exchange pleasantries,
and that's the way life should be.
I guess I was more specifically going to the question as to whether
you have discussed with the President's defense team any matter of
substance relating to the present proceedings in the United States
Senate.
A. Any matter of substance relating to these proceedings here in
the United States Senate have been handled very ably by my lawyer, Mr.
William Hundley.
Q. And I understand that, but my question is--despite your able
representation by Mr. Hundley--my question is--is whether you had any
meetings or discussions with the President's defense team in regard to
these proceedings.
A. The answer is no.
Q. Thank you.
And has anyone briefed you other than your attorney, Mr. Hundley,
on yesterday's deposition of Ms. Lewinsky?
A. The answer is no.
Q. Now, you know Greg Craig?
A. I do know Greg Craig.
Q. And he's a member of the President's defense team as well?
A. Yes.
Q. And you have not had any meetings of substance with him in
regard to the present proceedings?
A. I have not.
Q. And have you had any meetings with any of the President's
defense team in regard to not just the present proceedings, but prior
proceedings related to your testimony before the grand jury or the
investigation by the OIC?
A. I have had conversations with the President's lawyer, Mr.
Bennett, and a conversation or two with Mr. Kendall on the issue of
settlement of the Paula Jones case, and I believe I testified to that
before the grand jury.
Q. All right. Thank you, Mr. Jordan, and now let me move to another
area.
Do you recall an occasion in which Ms. Betty Currie came to see you
in your office a few days before the President's deposition in the
Jones case on January 17th?
A. Yes, I do.
Q. And I believe you have previously indicated that it was on a
Thursday or Friday, which would have been around the 15th or 16th?
A. Yeah. I've testified to that specifically as to the date in my
grand jury testimony, and I stand on that testimony.
Q. Certainly. But in general fashion, it would have been a couple
of days before the President's testimony on January 17th?
A. I believe that is correct, sir.
Q. And did--was this meeting with Betty Currie originated by a
telephone call with Ms. Betty Currie?
A. Ms. Currie called me.
Q. And did she explain to you why she needed to see you?
A. Yes, she did.
Q. And was that that she had a call from Michael Isikoff of
Newsweek magazine?
A. That is correct.
Q. And what did she say about that that caused her to call you?
A. She had said that Mr. Isikoff had called her and wanted to
interview her, having something to do with Monica Lewinsky, and I said
to her, why don't you come to see me.
Q. And why did you ask her to come see you, rather than just
talking to her about it over the telephone?
A. I felt more comfortable doing that, and I think she felt
comfortable or more comfortable doing that, rather than doing it on the
telephone. And so I asked her to come to my office, and she did.
Q. Did you consider--or did she seem upset at the time that she
called?
A. I think she was concerned.
Q. And as--you did in fact meet with her in your office?
A. I did.
Q. And what did she relate to you in your office?
A. That Michael Isikoff was a friend of hers, and that Michael
Isikoff had called to--pursuant to a story that he was about to write
having to do with Ms. Lewinsky, and she--she was concerned about what
to do. And I suggested to her that she talk to Bruce Lindsey and to
Mike McCurry as to what she should do, Bruce Lindsey on the legal side
and Mike McCurry on the communications side.
Q. Did she explain to you what it was specifically that Mr. Isikoff
was inquiring about in reference to Ms. Lewinsky?
A. No. I don't remember the exact nature of Isikoff's inquiry. What
I do remember is that Isikoff, a Newsweek magazine reporter, had called
and was making these inquiries, and she was at a loss as to where to
turn or to what to do, and I think that stemmed from the fact of some
White House policy saying that before you talk to anybody in the media,
you check it out.
Q. And did she explain to you that she had already seen Bruce
Lindsey about it before she came to see you?
A. She did not.
Q. And so you were basically telling her to see Bruce Lindsey, and
if she had already seen that, then that might have not been that
helpful?
A. I don't know whether I was being helpful or not. I responded to
her, and I gave her the advice to call Bruce Lindsey and to call Mike
McCurry.
Q. Let me refer you to the testimony of Ms. Betty Currie, and
perhaps that will help refresh you, and if not, perhaps you can respond
to it.
A. Sure.
Q. And for reference purposes, I'm referring to the grand jury
testimony of Ms. Betty Currie on May 6th, 1998, at page 122.
MR. HUTCHINSON: Is there a way I--
MR. HUNDLEY: We don't have that. If you want to--if you want us to
read along or just--
THE WITNESS: Wait a minute. I might have it right here. What page?
MR. HUTCHINSON: What's the exhibit number?
MR. HUNDLEY: How long is it, Mr. Hutchinson?
MR. HUTCHINSON: This would just be some short question-and-answers.
MR. HUNDLEY: Why don't you just read it? We don't--go ahead.
THE WITNESS: Oh, fine.
BY MR. HUTCHINSON:
Q. I'm going to read it, and if there's--it's at page 122, but this
just puts it in context.
The question: ``Ms. Currie, if I'm not mistaken, if I could ask you
a couple of questions. When you found out Mr. Isikoff was curious about
the courier receipts, you were concerned enough to go visit Vernon
Jordan?''
The answer is: ``Correct.''
And I'm skipping on down. I'm trying to point to a couple of things
that are of interest.
And question: ``And you went to Bruce Lindsey because you said you
knew that he was working on the matter?''
And question: ``What did Bruce tell you after you told him this?''
And answer: ``He told me not to call him back, referring to Mr.
Isikoff, make him work for the story. I remember that.''
And then she refers to going to see Mr. Jordan.
Why did you tell him, or, ``Why did you call Mr. Jordan?''
Answer: ``Because I had a comfort level with Vernon, and I wanted
to see what he had to say about it.''
MR. KENDALL: Counsel, excuse me. I object to your reading of that,
but my understanding that the conversation with Bruce Lindsey occurred
later. Are you representing that it occurred before the visit to Mr.
Jordan? I don't have the transcript in front of me.
MR. HUTCHINSON: Well, I'm--I'm not making a representation one way
or the other. I'm just representing what Ms. Currie testified to, and
that is the context of it, that the visit to Mr. Lindsey was prior to
going to see Mr. Jordan. And that is at page 122 through 130 of Betty
Currie's transcript of May 6th, 1998.
BY MR. HUTCHINSON:
Q. But the first question, Mr. Jordan, is that she refers to
courier receipts. I believe that was referring to courier records of
gifts from Ms. Lewinsky to the President.
Did Ms. Currie come to you and say specifically that Mr. Isikoff
was inquiring about courier records on gifts from Ms. Lewinsky to the
President?
A. I have no recollection of her telling me about the specific
inquiry that Isikoff was making. The issue for her was whether or not
she should see him, and I said to her, before she made any decision
about that, that she should talk to these two particular people on the
White House staff.
Q. Well, again, if Ms. Currie refers to the courier receipts on
gifts, would that be in conflict in any way with your recollection as
to what Mr. Isikoff was inquiring about, what Ms. Currie told you?
A. I stand on what I've just said to you.
Q. Now, you followed this case, and, of course--
SENATOR THOMPSON: While we're on that subject, does counsel need
any additional time to look over that? I don't want to leave an
objection on the record. If you feel like you need to press it--
SENATOR DODD: Do you have a copy of the document?
MR. KENDALL: Senator Thompson, we don't have the full copy of the
Currie transcript. This was not--
SENATOR THOMPSON: Why don't we reserve this, then, and you can be
looking at it, and then we'll--we'll take it up a little later.
MR. KENDALL: We're still actually missing some pages of the
transcript. I don't know if somebody has that.
SENATOR DODD: Why don't you see if you can't get them for them?
SENATOR THOMPSON: Okay.
SENATOR DODD: All right?
SENATOR THOMPSON: We'll let them be doing that, if that's okay with
everyone and--
SENATOR DODD: And you'll withdraw your objection as of right now,
or--
MR. KENDALL: Yes. I'll withdraw it until I can scrutinize the
pages, but I may then renew it.
SENATOR THOMPSON: All right, sir.
BY MR. HUTCHINSON:
Q. On--there's been some testimony in this case by Ms. Lewinsky
that on December 28th, there was a gift exchange with the President;
that subsequent to that, Ms. Currie went out and picked up gifts from
Ms. Lewinsky, and she put those gifts under Ms. Currie's bed. Are you
familiar with that basic scenario?
A. I read about it and heard about it. I do not know that because
that was told to me by Ms. Lewinsky or by Ms. Currie.
Q. Certainly, and I'm just setting that forth as a backdrop for my
questioning.
Now, you know, I guess it's--it might be difficult to understand a
great deal of concern about a news media call, but if that news media
call was about gifts or evidence that was in fact under Ms. Currie's
bed or involved in that exchange, then that would be a little
heightened concern.
A. Yes.
Q. Would that seem fair?
A. I do not, as I've said to you, know specifically the nature of
Mr. Isikoff's inquiry to Ms. Currie, and I know nothing at that
particular time about Mr. Isikoff making an inquiry about gifts under
the bed.
Q. All right. I refer you to your grand jury testimony of March 5,
1998, at page 73, when the question was asked of you about Ms. Currie's
visit to you, ``What exactly did she tell you?'' and your answer: ``She
told me that she had a call from Isikoff from Newsweek magazine, who
was calling to make inquiries about Monica Lewinsky and some taped
conversations, and I said you have to talk to Mike McCurry and you have
to talk to Bruce Lindsey.''
And so, despite your statement today that you have no recollection
as to what she told you, going back to your March testimony, you
referred to her relating Isikoff inquiring about taped conversations.
A. And that's what it says, ``taped conversations,'' and I stand by
that.
What was taped, I don't know.
Q. Well, I don't think you previously today mentioned taped
conversations.
MR. HUNDLEY: Well, I don't really think your question would have
called for that response, but I'm not going to object.
MR. HUTCHINSON: Thank you, Mr. Hundley.
BY MR. HUTCHINSON:
Q. I'm trying to get to the heart of the matter. Ms. Currie is
concerned enough that she leaves the White House and goes to see Mr.
Vernon Jordan, and she raises an issue with you and, according to your
testimony, you told her simply, you need to go see Mike McCurry or
Bruce Lindsey.
A. That is correct.
Q. And it's your testimony that she never raised with you any issue
concerning the--Mr. Isikoff inquiring about gifts and records of gifts
by Ms. Lewinsky?
A. I stand by what I--what you just read to me about--from my
testimony about tapes conversations. I have no recollection about gifts
or gifts under the bed.
Q. Okay. Are you saying it did not happen, or you have no
recollection?
A. I certainly have no recollection of it.
Q. Well, do you have a specific recollection that it did not
happen, that she never raised the issue of gifts with you?
A. It is my judgment that it did not happen.
Q. Did she seem satisfied with your advice to go see Mr. Bruce
Lindsey, who she presumably had already seen?
A. I assumed that she took my advice.
Q. Did she discuss in any way with you the incident on December
28th when she retrieved the gifts--
A. She did not.
Q. --from Ms. Lewinsky?
A. She did not.
Q. Now, a few days later, the President of the United States
testified before the grand jury in the--excuse me--testified in his
deposition in the Jones case.
After the President's deposition, did he have a conversation with
you on that day?
A. Yes. I'm sure we talked.
Q. And then, on the next day, and without getting into the entire
record of telephone calls, there was, is it fair to say, a flurry of
telephone calls in which everyone was trying to locate Ms. Monica
Lewinsky?
A. The next day being which day?
Q. The next day would have been--well, January 18th.
A. That's Sunday.
Q. Correct.
MR. HUNDLEY: I think it's the 19th.
THE WITNESS: I think it's the 19th when there was a flurry of
calls.
MR. HUTCHINSON: I think you're absolutely correct.
THE WITNESS: We'll be glad to be helpful to you in any way we can.
MR. HUNDLEY: We're even now. I was wrong on one. You were wrong.
MR. HUTCHINSON: That's fair enough, fair enough.
BY MR. HUTCHINSON:
Q. And on the 19th--of course, the 18th is in the record where the
President visited with Ms. Betty Currie at the White House--on the
19th, which would have been Monday, was there on that day a flurry of
activity in which there were numerous telephone calls, trying to locate
Monica Lewinsky?
A. Yes. And you have a record of those telephone calls, and those
telephone calls, Congressman, were driven by two events--first, the
Drudge Report; and later in the afternoon, driven by the fact that, uh,
I had been informed by Frank Carter, counsel to Ms. Lewinsky, that he
had been relieved of his responsibilities as her counsel. And that is
the basis for these numerous telephone calls.
Q. And you yourself were engaged in some of those telephone calls
trying to locate Ms. Lewinsky?
A. Oh, yes, to ask her--I mean, I had just found out that she had
been involved in these conversations with this person called Linda
Tripp, and that was of some curiosity and concern to me.
Q. And you had heard Ms. Tripp's name previously on December 31st
at the Park Hyatt?
A. I've testified already that I never heard the name ``Linda
Tripp'' until I saw the Drudge Report. I did not testify that I heard
the name ``Linda Tripp'' on December 31st.
Q. So the first time you heard Ms. Tripp's name was on January 19th
when the Drudge Report came out?
A. That is correct.
Q. And you had already secured a--
A. The 18th, I believe it was.
MR. HUNDLEY: Eighteenth.
THE WITNESS: Not the 19th.
BY MR. HUTCHINSON:
Q. Thank you.
You had already secured a job for Ms. Lewinsky?
A. That is correct.
Q. And you--
A. Found a lawyer.
Q. And a lawyer. And, as you had said at one point, job finished--
fini. Why is it that you felt like you needed to join in the search for
Ms. Lewinsky?
A. If you had been sitting where I was, and all of a sudden you
found out, after getting her a job and after getting her a lawyer, that
there's a report that says that she's been--she's been taped by some
person named Linda Tripp, I think just, mother wit, common sense,
judgment, would have suggested that you would be interested in what
that was about.
Q. And were you trying to provide assistance to the President of
the United States in trying to locate Ms. Lewinsky?
A. I was not trying to help the President of the United States. At
that point, I was trying to satisfy myself as to what had gone on with
this person for whom I had gotten both a job and a lawyer.
Q. Now, subsequent to this, you felt it necessary to make a public
statement on January 22 in front of the Park Hyatt Hotel?
A. I did make a public statement on January 22nd at the Park Hyatt
Hotel.
Q. And what was the reason that you gave this public statement?
A. I gave the public statement because I was being rebuked and
scorned and talked about, sure as you're born, and I felt some need to
explain to the public what had happened.
MR. HUTCHINSON: All right. And I have a copy of that public
statement that is marked as Grand Jury Exhibit 87, but we will mark it
as Exhibit--
SENATOR THOMPSON: Seven, I believe.
SENATOR DODD: We've gone through 9, haven't we? You're marking it.
If you're only marking it, I think we--
SENATOR THOMPSON: We have six exhibits, didn't we?
SENATOR DODD: We've done more than that, haven't we?
MR. HUTCHINSON: I have nine.
SENATOR DODD: Nine. Did you enter 9, or did you just note it?
SENATOR THOMPSON: Six were entered, two were sustained, I think.
MS. MILLS: I have seven.
SENATOR DODD: Nine, you have here, but we didn't--I don't know if
you--you don't have 9 as an exhibit, or just noted?
MR. GRIFFITH: Nine was Grand Jury 44.
MR. HUTCHINSON: We just noted it, I believe.
SENATOR DODD: You didn't ask that it be entered in the record?
MR. HUTCHINSON: I believe that's correct.
SENATOR DODD: Yes.
SENATOR THOMPSON: How about those we sustained objections to? That
doesn't count.
SENATOR DODD: Well, they're still marked.
SENATOR THOMPSON: They were marked?
SENATOR DODD: So which one should this be? Ten?
SENATOR THOMPSON: This will be 10?
SENATOR DODD: This is 10, then.
MR. HUTCHINSON: All right, Number 10.
[Jordan Deposition Exhibit No. 10 marked for identification.]
BY MR. HUTCHINSON:
Q. Do you have a copy of that, Mr. Jordan?
A. I have a copy of it. Thank you.
Q. Thank you. Now, prior to making this public statement, did you
consult with the President's attorney, Mr. Bob Bennett?
A. I did not, not about this statement.
Q. Did you consult with the President's attorney, Mr. Bob Bennett?
A. I did not consult with him. Mr. Bennett came to my office and
met with me and my attorney, Mr. Hundley, in my office.
Q. All right. And that was sometime prior to making this statement?
A. That is correct.
Q. And it would be--and it would have been between the 19th and the
22nd?
A. That is correct.
Q. It would have been after all of the public issues--
A. It was after--
Q. --came up?
A. --I returned from Washington, and it may have been--from New
York--and it may have been, I think, Wednesday afternoon.
Q. Now, in this statement, you indicated that you referred Ms.
Lewinsky for interviews at American Express and at Revlon.
A. That is correct, and Young & Rubicam.
Q. And in fact, as your testimony today indicates, you did more
than refer her for interviews, did you not?
A. Explain what you mean, and I'll be happy to answer.
Q. Well, in fact, when the interview went poorly, according to Ms.
Lewinsky, you made calls to get her a second interview and to make it
happen.
A. That is safe to say.
Q. All right. And I think you've also described your involvement in
the job search as running the job search?
A. Yes.
Q. And so it was a little bit more than simply referring her for
interviews. Is that a fair statement?
That's a fair statement.
Q. And then, in this statement, you also indicate that ``Ms.
Lewinsky was referred to me by Ms. Betty Currie''----
A. Yes.
Q. --is that correct?
A. That is correct.
Q. And in fact, you were acting, as you stated, at the behest of
the President?
A. Through Ms. Currie. I'm satisfied with this statement as
correct.
Q. So--but you were acting in the job search at the behest of the
President, as you have previously testified?
A. I've testified to that.
MR. HUTCHINSON: Now, we would offer this as Exhibit No. 10.
SENATOR THOMPSON: Without objection, it will be made a part of the
record.
[Jordan Deposition Exhibit No. 10 received in evidence.]
MR. HUNDLEY: The only problem with this line of questioning is I
think I wrote that thing.
[Laughter.]
BY MR. HUTCHINSON:
Q. After you--after you last testified before the grand jury in
June of '98, since then, the President testified before the grand jury
in August, and prior to his testimony before the grand jury in August,
he made his statement to the Nation in which he--I believe the language
was admitted to ``an inappropriate relationship with Ms. Lewinsky.''
Now, at the time that you testified in June of '98, you did not
have this information, did you?
A. He had not made that statement on the 17th of August, that's for
sure.
Q. And was he in fact, to your knowledge, still denying the
existence of that relationship?
A. I think, as I remember the statement, he said he misled the
American people.
Q. And subsequent to this admission, did you talk to your friend,
the President of the United States, about his false statements to you?
A. I have not spoken to him about any false statements, one way or
the other.
Q. Now, you have testified that you in the job search were acting
at the behest of the President of the United States; is that correct?
A. I stand on that.
Q. And there is no question but that Ms. Monica Lewinsky understood
that?
A. I have to assume that she understood that.
Q. Okay. And in the law, there is the rule of agency and apparent
authority. Is it safe to assume that Ms. Lewinsky believed that you had
apparent authority on behalf of the President of the United States?
A. I think I know enough about the law to say that the law of
agency is not applicable in this situation where there was a potential
romance and not a work situation. I think the law of agency has to do
with a work situation and an employment situation and not having to do
with some sort of romance. I think that's right.
Q. Well, let me take it out of the legal realm.
A. You raised it--I didn't.
Q. And let's put it in the realm of mother wit. Ms. Lewinsky is
looking to you as a friend of the President of the United States,
knowing that you're acting at the behest of the President of the United
States. Is it not reasonable to assume that when she communicates
something to you or she hears something from you, that it's as if she
is talking to someone who is acting for the President?
A. No. When she's talking to me, she's talking to me, and I can
only speak for me and act for me.
MR. HUTCHINSON: Could I have just a moment?
SENATOR THOMPSON: Yes.
MR. HUTCHINSON: At this time, Your Honors, the House Managers would
reserve the balance of its time.
SENATOR THOMPSON: Counsel?
MR. HUNDLEY: Fine.
SENATOR THOMPSON: All right.
MR. HUTCHINSON: Thank you, Mr. Jordan.
THE WITNESS: Thank you, Mr. Hutchinson.
SENATOR THOMPSON: Mr. Kendall?
examination by counsel for the president by mr. kendall
Q. Mr. Jordan, is there anything you think it appropriate to add to
the record?
A. Mr. Hutchinson, I'd just like to----
MR. HUTCHINSON: I'm going to object to the form of that question. I
think that even though--and that's not even a leading question; that's
an open-ended question that calls for a narrative response. And I think
in fairness to the record that that is just simply too broad for this
deposition purpose.
SENATOR THOMPSON: Mr. Kendall, is there any chance of perhaps your
rephrasing the question somewhat?
MR. KENDALL: Certainly.
BY MR. KENDALL:
Q. Mr. Jordan, you were asked questions about job assistance. Would
you describe the job assistance you have over your career given to
people who have come to you requesting help finding a job or finding
employment?
A. Well, I've known about job assistance and have for a very long
time. I learned about it dramatically when I finished at Howard
University Law School, 1960, to return home to Atlanta, Georgia to look
for work. In the process of my--during my senior year, it was very
clear to me that no law firm in Atlanta would hire me. It was very
clear to me that, uh, I could not get a job as a black lawyer in the
city government, the county government, the State government or the
Federal Government.
And thanks to my high school bandmaster, Mr. Kenneth Days, who
called his fraternity brother, Donald L. Hollowell, a civil rights
lawyer, and said, ``That Jordan boy is a fine boy, and you ought to
consider him for a job at your law firm,'' that's when I learned about
job referral, and that job referral by Kenneth Days, now going to Don
Hollowell, got me a job as a civil rights lawyer working for Don
Hollowell for $35 a week.
I have never forgotten Kenneth Days' generosity. And given the fact
that all of the other doors for employment as a black lawyer graduating
from Howard University were open to me, that's always--that's always
been etched in my heart and my mind, and as a result, because I stand
on Mr. Days' shoulders and Don Hollowell's shoulders, I felt some
responsibility to the extent that I could be helpful or got in a
position to be helpful, that I would do that.
And there is I think ample evidence, both in the media and by
individuals across this country, that at such times that I have been
presented with that opportunity that I have taken advantage of that
opportunity, and I think that I have been successful at it.
Q. Was your assistance to Ms. Lewinsky which you have described in
any way dependent upon her doing anything whatsoever in the Paula Jones
case?
A. No.
______
In the Senate of the United States Sitting for the Trial of the
Impeachment of William Jefferson Clinton, President of the United
States
excerpts of video deposition of sidney blumenthal
(Wednesday, February 3, 1999, Washington, D.C.)
SENATOR SPECTER: If none, I will swear the witness.
Mr. Blumenthal, will you please stand up and raise your right hand?
You, Sidney Blumenthal, do swear that the evidence you shall give
in this case now pending between the United States and William
Jefferson Clinton, President of the United States, shall be the truth,
the whole truth, and nothing but the truth, so help you, God?
MR. BLUMENTHAL: I do.
Whereupon, SIDNEY BLUMENTHAL was called as a witness and, after
having been first duly sworn by Senator Specter, was examined and
testified as follows:
SENATOR SPECTER: Thank you.
THE WITNESS: Thank you.
SENATOR SPECTER: The House Managers may begin their questioning.
MR. ROGAN: Thank you, Senator.
examination by house managers
BY MR. ROGAN:
Q. Mr. Blumenthal, first, good morning.
A. Good morning to you.
Q. My name is Jim Rogan. As you know, I am one of the House
Managers and will be conducting this deposition pursuant to authority
from the United States Senate.
First, as a preliminary matter, we have never had the pleasure of
meeting or speaking until this morning, correct?
A. That's correct.
Q. If any question I ask is unclear or is in any way ambiguous, if
you would please call that to my attention, I will be happy to try to
restate it or rephrase the question.
A. Thank you.
Q. Mr. Blumenthal, where are you currently employed?
A. At the White House.
Q. Is that in the Executive Office of the President?
A. It is.
Q. What is your current title?
A. My title is Assistant to the President.
Q. Was that your title on January 21st, 1998?
A. It was.
Q. For the record, that is the date that The Washington Post story
appeared that essentially broke the Monica Lewinsky story?
A. Yes.
Q. On that date, were you the Assistant to the President as to any
specific subject matter?
A. I dealt with a variety of areas.
Q. Did your duties entail any specific matter, or were you
essentially a jack-of-all-trades at the White House for the President?
A. Well, I was hired to help the President develop his ideas and
themes about the new consensus for the country, and I was hired to deal
with problems like the impact of globalization, democracy
internationally and domestically, the future of civil society, and the
Anglo-American Project; and I also was hired to work on major speeches.
Q. You testified previously that your duties are such as the
President and Chief of Staff shall decide. Would that be a fair
characterization?
A. Oh, yes.
Q. How long have you been employed in this capacity?
A. Since August 11th, 1997.
Q. And in the course of your duties, do you personally advise the
President as to the matters that you just shared with us?
A. Yes.
Q. How often do you meet with the President personally to advise
him?
A. It varies. Sometimes several times a week; sometimes I go
without seeing him for a number of weeks at a time.
Q. Is dealing with the media part of your--your job?
A. Yes. It's part of my job and part of the job of most people in
the White House.
Q. Was that also one of your responsibilities on January 21st,
1998, when the Monica Lewinsky story broke?
A. Yes.
Q. You previously testified that you had a role in the Monica
Lewinsky matter after the story broke in The Washington Post on that
date, at least in reference to your White House duties; is that
correct?
A. I'm unclear on what you mean by ``a role.''
Q. Specifically, you testified that you attended meetings in the
White House in the Office of Legal Counsel in the morning and in the
evening almost every day once the story broke?
A. Yes.
Q. And what times did those meetings occur after the story broke,
these regular meetings?
A. The morning meetings occurred around 8:30, after the morning
message meeting, and the evening meetings occurred around 6:45.
Q. Are those meetings still ongoing?
A. No.
Q. Can you tell me when those meetings ended?
A. Oh, I'd say about the time that the impeachment trial started.
Q. That would be about a month or--about a month ago?
A. Yeah, something like that.
Q. Thank you.
A. I don't recall exactly.
Q. Sure. But up until that point, were these essentially regularly
scheduled meetings, twice a day, 8:30 in the morning and 6:45 in the
evening?
A. Right.
Q. Did you generally attend those meetings?
A. Generally.
Q. Now, initially, when you testified before the grand jury on
February 26th, 1998, your first grand jury appearance, you stated that
these twice-daily meetings dealt exclusively with the Monica Lewinsky
matter, correct?
A. They dealt with our press reaction, how we would respond to
press reports dealing with it. This was a huge story, and we were being
inundated with hundreds of calls.
Q. Right.
A. So--
Q. What I'm--what I'm trying to decipher is that at least
initially, at the time of your first grand jury appearance, which was
about a month after the story broke--
A. Right.
Q. --the meetings were exclusively related to Monica Lewinsky. Is
that correct?
A. Pretty much.
Q. And then, 4 months later, when you testified before the grand
jury in June, you said these meetings were still ongoing, and you
referenced them at that time as discussing the policy, political, legal
and media impact of scandals and how to deal with them. Do you remember
that testimony?
A. If I could see it.
Q. Certainly. I'm happy to invite your attention to your grand jury
testimony of June 4th, 1998, page 25, lines 1 through 5.
MR. ROGAN: And that would be, for the Senators' and counsel's
benefit--I believe that's in Tab 4 of the materials provided.
[Witness perusing document.]
THE WITNESS: Right. I see it.
BY MR. ROGAN:
Q. You've had a chance to review that, Mr. Blumenthal?
A. I have.
Q. And that--that's correct testimony?
A. Yes.
Q. Thank you.
At the time you spoke of--you used the word ``scandals'' in the
plural, and you were asked on June 4th what other scandals were
discussed and you said they range from the Paula Jones trial to our
China policy. Is that a fair statement?
A. Oh, yes, yes. I do.
Q. Who typically attended those meetings?
A. As I recall, there were about a dozen or so people, sometimes
more, sometimes less.
Q. Do you remember the names of the people?
A. I'll try to.
Q. Would it be helpful if I directed your attention to a couple of
passages in the grand jury testimony?
A. Sure, if you'd like.
MR. ROGAN: Inviting the Senate and counsel's attention to the
February 26th grand jury testimony, page 11, lines 2 through 16.
[Witness perusing document.]
THE WITNESS: Sure. Yeah.
BY MR. ROGAN:
Q. That would be Tab Number 1.
A. Right, I see that.
What it says here is that the names listed are Charles Ruff, Lanny
Breuer, who is right over here, Cheryl Mills, Bruce Lindsey, John
Podesta, Rahm Emanuel, Paul Begala, Jim Kennedy, Mike McCurry, Joe
Lockhart, Ann Lewis, Adam Goldberg, Don Goldberg, and that's--those are
the names that I--that I recall.
Q. Thank you.
And just for my benefit, Mr. Ruff, Mr. Breuer, Ms. Mills, and Mr.
Lindsey, those are all White House counsel?
A. Yes.
Q. Could you just briefly identify for the record the other
individuals that are--that are listed in your testimony?
A. Sure. John Podesta was Deputy Chief of Staff. Rahm Emanuel was a
Senior Advisor. Paul Begala had the title of Counselor. Jim Kennedy was
in the Legal Counsel Office. Mike McCurry was Press Secretary. Joe
Lockhart at that time was Deputy Press Secretary. Ann Lewis was
Director of Communications, still is. Adam Goldberg worked as a--as an
Assistant in the Legal Counsel Office, and Don Goldberg worked in
Legislative Affairs.
Q. Thank you.
Mr. Blumenthal, specifically inviting your attention to January
21st, 1998, you testified before the grand jury that on that date, you
personally spoke to the President regarding the Monica Lewinsky matter,
correct?
A. Yes.
Q. When you spoke to the President, did you discuss The Washington
Post story about Ms. Lewinsky that appeared that morning?
A. I don't recall if we talked about that article specifically.
Q. Do you recall on June 25th testifying before the grand jury, and
I'm quoting, ``We were speaking about the story that appeared that
morning''?
A. Right. We were--we were speaking about that story, but I don't
know if we referred to The Post.
Q. Thank you.
You are familiar with The Washington Post story that broke that
day?
A. I am.
Q. That story essentially stated that the Office of Independent
Counsel was investigating whether the President made false statements
about his relationship with Ms. Lewinsky in the Jones case, correct, to
the best of your recollection?
A. If you could repeat that?
Q. Sure. The story stated that the Office of Independent Counsel
was investigating whether the President made false statements about his
relationship with Ms. Lewinsky in the Jones case.
A. Right.
Q. And also that the Office of Independent Counsel was
investigating whether the President obstructed justice in the Jones
case. Is that your best recollection of what that story was about?
A. Yes.
Q. How did you end up speaking to the President on that specific
date?
A. I don't remember exactly whether he had summoned me or whether I
had asked to speak him--to him.
Q. And I realize, by the way, I--just so you know, I'm not trying
to trick you or anything. I realize this is a year later--
A. Right.
Q. --and your testimony was many months ago, and so if I invite
your attention to previous grand jury testimony to refresh your
recollection, I don't want you to feel that in any way I'm trying to
imply that you're not being candid in your testimony.
With that, if I may invite your--your attention to the June 4th
grand jury testimony on page 47, lines 5 through 6.
[Witness perusing document.]
BY MR. ROGAN:
Q. Let me see if this helps to refresh your recollection. You said,
``It was about a week before the State of the Union speech.''
A. I see.
Q. ``I was in my office, and the President asked me to come to his
office.''
Does that help to refresh your recollection?
A. Yes.
Q. And so you now remember that the President asked to speak with
you?
A. Yes.
Q. Did you go to the Oval Office?
A. Yes.
Q. During that conversation, were you alone with the President?
A. I was.
Q. Do you remember if the door was closed?
A. It was.
Q. When you met with the President, did you relate to him a
conversation you had with the First Lady earlier that day?
A. I did.
Q. What did you tell the President the First Lady told you earlier
that day?
A. I believe that I told him that the First Lady had called me
earlier in the day, and in the light of the story in The Post had told
me that the President had helped troubled people in the past and that
he had done it many times and that he was a compassionate person and
that he helped people also out of his religious conviction and that
this was part of--part of his nature.
Q. And did she also tell you that one of the other reasons he
helped people was out of his personal temperament?
A. Yes. That's what I mean by that.
Q. And the First Lady also at least shared with you her opinion
that he was being attacked for political motives?
MR. McDANIEL: Can I get a clarification, Senator--Senator Specter?
The earlier question, I thought, had been what Mr. Blumenthal had
relayed to the President had been said by the First Lady.
MR. ROGAN: That's correct.
MR. McDANIEL: And now the questions are back--it seems to me have
moved to another topic--
MR. ROGAN: No. That's--
MR. McDANIEL: --which is what--
MR. ROGAN: I'm--
MR. McDANIEL: --did the First Lady say.
MR. ROGAN: And I thank--I thank the gentleman for that
clarification. I'm specifically asking what the witness relayed to the
President respecting his conversation with--his earlier conversation
with the First Lady.
MR. McDANIEL: Thank you.
Do you understand that, what he said?
THE WITNESS: I understand the distinction, and I don't--
BY MR. ROGAN:
Q. I'll restate the question, if that would help.
A. Please.
Q. Do you remember telling the President that the First Lady said
to you that she felt that with--in reference to this story that he was
being attacked for political motives?
A. I remember her saying that to me, yes.
Q. And you relayed that to the President?
A. I'm not sure I relayed that to the President. I may have just
relayed the gist of the conversation to him. I don't--I'm not sure
whether I relayed the entire conversation.
MR. ROGAN: Inviting the Senators' and counsel's attention to the
June 4th, 1998, testimony of Mr. Blumenthal, page 47, beginning at line
5.
BY MR. ROGAN:
Q. Mr. Blumenthal, let me just read a passage to you and tell me if
this helps to refresh your memory.
A. Mm-hmm.
MR. ROGAN: Do you have that, Lanny?
MR. BREUER: Yes, I do. Thank you.
BY MR. ROGAN:
Q. Reading at line--at line 5, ``I was in my office, and the
President asked me to come to the Oval Office. I was seeing him
frequently in this period about the State of the Union and Blair's
visit''--and I--that was Prime Minister Tony Blair, as an aside,
correct?
A. That's right.
Q. Thank you.
And then again, reading at line 7, ``So I went up to the Oval
Office and I began the discussion, and I said that I had received--that
I had spoken to the First Lady that day in the afternoon about the
story that had broke in the morning, and I related to the President my
conversation with the First Lady and the conversation went as follows.
The First Lady said that she was distressed that the President was
being attacked, in her view, for political motives for his ministry of
a troubled person. She said that the President ministers to troubled
people all the time,'' and then it goes on to--
A. Right.
Q. --relate the substance of the answer you just gave.
Does that help to refresh your recollection with respect to what
you told the President, the First Lady had said earlier?
A. Yes.
Q. Thank you.
And do you now remember that the First Lady had indicated to you
that she felt the President was being attacked for political motives?
A. Well, I remember she said that to me.
Q. And just getting us back on track, a few moments ago, I think
you--you shared with us that the First Lady said that the President
helped troubled people and he had done it many times in the past.
A. Yes.
Q. Do you remember testifying before the grand jury on that
subject, saying that the First Lady said he has done this dozens, if
not hundreds, of times with people--
A. Yes.
Q. --with troubled people?
A. I recall that.
Q. After you related the conversation that you had with the First
Lady to the President, what do you remember saying to the President
next about the subject of Monica Lewinsky?
A. Well, I recall telling him that I understood he felt that way,
and that he did help people, but that he should stop trying to help
troubled people personally; that troubled people are troubled and that
they can get you in a lot of messes and that you had to cut yourself
off from it and you just had to do it. That's what I recall saying to
him.
Q. Do you also remember in that conversation saying to him, ``You
really need to not do that at this point, that you can't get near
anybody who is even remotely crazy. You're President''?
A. Yes. I think that was a little later in the conversation, but I
do recall saying that.
Q. When you told the President that he should avoid contact with
troubled people, what did the President say to you in response?
A. I'm trying to remember the sequence of it. He--he said that was
very difficult for him. He said he--he felt a need to help troubled
people, and it was hard for him to--to cut himself off from doing that.
Q. Do you remember him saying specifically, ``It's very difficult
for me to do that, given how I am. I want to help people''?
A. I recall--I recall that.
Q. And when the President referred to trying to help people, did
you understand him in that conversation to be referring to Monica
Lewinsky?
A. I think it included Monica Lewinsky, but also many others.
Q. Right, but it was your understanding that he was all--he was
specifically referring to Monica Lewinsky in that list of people that
he tried to help?
A. I believe that--that was implied.
Q. Do you remember being asked that question before the grand jury
and giving the answer, ``I understood that''?
A. If you could point it out to me, I'd be happy to see it.
Q. Certainly.
MR. ROGAN: Inviting the Senators' and counsel's attention to the
June 25th, 1998, grand jury, page 5, I believe it's at lines 6 through
8.
[Witness perusing document.]
THE WITNESS: Yes, I see that. Thank you.
By MR. ROGAN:
Q. You recall that now?
A. Yes.
Q. Thank you.
Mr. Blumenthal, did the President then relate a conversation he had
with Dick Morris to you?
A. He did.
Q. What was the substance of that conversation, as the President
related it to you?
A. He said that he had spoken to Dick Morris earlier that day, and
that Dick Morris had told him that if Nixon, Richard Nixon, had given a
nationally televised speech at the beginning of the Watergate affair,
acknowledging everything he had done wrong, he may well have survived
it, and that was the conversation that Dick Morris--that's what Dick
Morris said to the President.
Q. Did it sound to you like the President was suggesting perhaps he
would go on television and give a national speech?
A. Well, I don't know. I didn't know.
Q. And when the President related the substance of his conversation
with Dick Morris to you, how did you respond to that?
A. I said to the President, ``Well, what have you done wrong?''
Q. Did he reply?
A. He did.
Q. What did he say?
A. He said, ``I haven't done anything wrong.''
Q. And what did you say to that response?
A. Well, I said, as I recall, ``That's one of the stupidest ideas I
ever heard. If you haven't done anything wrong, why would you do
that?''
Q. Did the President then give you his account of what happened
between him and Monica Lewinsky?
A. As I recall, he did.
Q. What did the President tell you?
A. He, uh--he spoke, uh, fairly rapidly, as I recall, at that point
and said that she had come on to him and made a demand for sex, that he
had rebuffed her, turned her down, and that she, uh, threatened him.
And, uh, he said that she said to him, uh, that she was called ``the
stalker'' by her peers and that she hated the term, and that she would
claim that they had had an affair whether they had or they hadn't, and
that she would tell people.
Q. Do you remember him also saying that the reason Monica Lewinsky
would tell people that is because then she wouldn't be known by her
peers as ``the stalker'' anymore?
A. Yes, that's right.
Q. Do you remember the President also saying that--and I'm
quoting--``I've gone down that road before. I've caused pain for a lot
of people. I'm not going to do that again''?
A. Yes. He told me that.
Q. And that was in the same conversation that you had with the
President?
A. Right, in--in that sequence.
Q. Can you describe for us the President's demeanor when he shared
this information with you?
A. Yes. He was, uh, very upset. I thought he was, a man in anguish.
Q. And at that point, did you repeat your earlier admonition to him
as far as not trying to help troubled people?
A. I did. I--I think that's when I told him that you can't get near
crazy people, uh, or troubled people. Uh, you're President; you just
have to separate yourself from this.
Q. And I'm not sure, based on your testimony, if you gave that
admonition to him once or twice. Let me--let me clarify for you why my
questioning suggested it was twice. In your grand jury testimony on
June the 4th, at page 49, beginning at line 25, you began the sentence
by saying, and I quote, ``And I repeated to the President''--
A. Right.
Q. --``that he really needed never to be near people who were''--
A. Right.
Q. --``troubled like this,'' and so forth. Do you remember now if
you--if that was correct? Did you find yourself in that conversation
having to repeat the admonition to him that you'd given earlier?
A. I'm sure I did. Uh, I felt--I felt that pretty strongly. He
shouldn't be involved with troubled people.
Q. Do you remember the President also saying something about being
like a character in a novel?
A. I do.
Q. What did he say?
A. Uh, he said to me, uh, that, uh, he felt like a character in a
novel. Uh, he felt like somebody, uh, surrounded by, uh, an oppressive
environment that was creating a lie about him. He said he felt like,
uh, the character in the novel Darkness at Noon.
Q. Did he also say he felt like he can't get the truth out?
A. Yes, I--I believe he said that.
Q. Politicians are always loathe to confess their ignorance,
particularly on videotape. I will do so. I'm unfamiliar with the novel
Darkness at Noon. Did you--do you have any familiarity with that, or
did you understand what the President meant by that?
A. I--I understood what he meant. I--I was familiar with the book.
Q. What--what did he mean by that, per your understanding?
A. Uh, the book is by Arthur Koestler, who was somebody who had
been a communist and had become disillusioned with communism. And it's
an anti-communist novel. It's about, uh, uh, the Stalinist purge trials
and somebody who was a loyal communist who then is put in one of
Stalin's prisons and held on trial and executed, uh, and it's about his
trial.
Q. Did you understand what the President was trying to communicate
when he related his situation to the character in that novel?
A. I think he felt that the world was against him.
Q. I thought only Members of Congress felt that way.
Mr. Blumenthal, did you ever ask the President if he was ever alone
with Monica Lewinsky?
A. I did.
Q. What was his response?
A. I asked him a number of questions that appeared in the press
that day. I asked him, uh, if he were alone, and he said that, uh, he
was within eyesight or earshot of someone when he was with her.
Q. What other questions do you remember asking him?
A. Uh, there was a story in the paper that, uh, there were recorded
messages, uh, left by him on her voice-mail and I asked him if that
were true.
Q. What did he say?
A. He said, uh, that it was, that, uh, he had called her.
Q. You had asked him about a press account that said there were
potentially a number of telephone messages left by the President for
Monica Lewinsky. And he relayed to you that he called her. Did he tell
you how many times he called her?
A. He--he did. He said he called once. He said he called when, uh,
Betty Currie's brother had died, to tell her that.
Q. And other than that one time that he shared that information
with you, he shared no other information respecting additional calls?
A. No.
Q. He never indicated to you that there were over 50 telephone
conversations between himself and Monica Lewinsky?
A. No.
Q. Based on your conversation with the President at that time,
would it have surprised you to know that there were over 50--there were
records of over 50 telephone conversations with Monica Lewinsky and the
President?
A. Would I have been surprised at that time?
Q. Yes.
A. Uh, I--to see those records and if he--I don't fully grasp the
question here. Could you--would I have been surprised?
Q. Based on the President's response to your question at that time,
would it have surprised you to have been told or to have later learned
that there were over 50 recorded--50 conversations between the
President and Ms. Lewinsky?
A. I did later learn that, uh, as the whole country did, uh, and I
was surprised.
Q. When the President told you that Monica Lewinsky threatened him,
did you ever feel compelled to report that information to the Secret
Service?
A. No.
Q. The FBI or any other law enforcement organization?
A. No.
Q. I'm assuming that a threat to the President from somebody in the
White House would normally send off alarm bells among staff.
A. It wouldn't--
MR. McDANIEL: Well, I'd like to object to the question, Senator.
There's no testimony that Mr. Blumenthal learned of a threat
contemporaneously with it being made by someone in the White House.
This is a threat that was relayed to him sometime afterwards by someone
who was no longer employed in the White House. So I think the question
doesn't relate to the testimony of this witness.
MR. ROGAN: Respectfully, I'm not sure what the legal basis of the
objection is. The evidence before us is that the President told the
witness that Monica Lewinsky threatened him.
[Senators Specter and Edwards conferring.]
SENATOR SPECTER: We've conferred and overrule the objection on the
ground that it calls for an answer; that, however the witness chooses
to answer it, was not a contemporaneous threat, or he thought it was
stale, or whatever he thinks. But the objection is overruled.
MR. ROGAN: Thank you.
BY MR. ROGAN:
Q. Let me--let me restate the question, if I may. Mr. Blumenthal,
would a threat--
SENATOR SPECTER: We withdraw the ruling.
[Laughter.]
MR. McDANIEL: I withdraw my objection, then.
[Laughter.]
MR. ROGAN: Senator Specter, the ruling is just fine by my light.
I'm just going to try to simplify the question for the witness'
benefit.
SENATOR SPECTER: We'll hold in abeyance a decision on whether to
reinstate the ruling.
MR. ROGAN: Thank you. Maybe I should just quit while I'm ahead and
have the question read back.
BY MR. ROGAN:
Q. Basically, Mr. Blumenthal, what I'm asking is, I mean, normally,
would a threat from somebody against the President in the White House
typically require some sort of report being made to a law enforcement
agency?
A. Uh, in the abstract, yes.
Q. This conversation that you had with the President on January the
21st, 1998, how did that conversation conclude?
A. Uh, I believe we, uh--well, I believe after that, I said to the
President that, uh--who was--seemed to me to be upset, that you needed
to find some sure footing and to be confident. And, uh, we went on, I
believe, to discuss the State of the Union.
Q. You went on to other business?
A. Yes, we went on to talk about public policy.
Q. When this conversation with the President concluded as it
related to Monica Lewinsky, what were your feelings toward the
President's statement?
A. Uh, well, they were complex. Uh, I believed him, uh, but I was
also, uh--I thought he was very upset. That troubled me. And I also was
troubled by his association with troubled people and thought this was
not a good story and thought he shouldn't be doing this.
Q. Do you remember also testifying before the grand jury that you
felt that the President's story was a very heartfelt story and that
``he was pouring out his heart, and I believed him''?
A. Yes, that's what I told the grand jury, I believe; right.
Q. That was--that was how you interpreted the President's story?
A. Yes, I did. He was, uh--he seemed--he seemed emotional.
Q. When the President told you he was helping Monica Lewinsky, did
he ever describe to you how he might be helping or ministering to her?
A. No.
Q. Did he ever describe how many times he may have tried to help or
minister to her?
A. No.
Q. Did he tell you how many times he visited with Monica Lewinsky?
A. No.
Q. Did he tell you how many times Monica Lewinsky visited him in
the Oval Office complex?
A. No.
Q. Did he tell you how many times he was alone with Monica
Lewinsky?
A. No.
Q. He never described to you any intimate physical activity he may
have had with Monica Lewinsky?
A. Oh, no.
Q. Did the President ever tell you that he gave any gifts to Monica
Lewinsky?
A. No.
Q. Did he tell you that Monica Lewinsky gave him any gifts?
A. No.
Q. Based on the President's story as he related on January 21st,
would it have surprised you to know at that time that there was a
repeated gift exchange between Monica Lewinsky and the President?
A. Well, I learned later about that, and I was surprised.
Q. The President never told you that he engaged in occasional
sexual banter with her on the telephone?
A. No.
Q. He never told you about any cover stories that he and Monica
Lewinsky may have developed to disguise a relationship?
A. No.
Q. He never suggested to you that there might be some physical
evidence pointing to a physical relationship between he--between
himself and Monica Lewinsky?
A. No.
Q. Did the President ever discuss his grand jury--or strike that.
Did the President ever discuss his deposition testimony with you in
the Paula Jones case on that date?
A. Oh, no.
Q. Did he ever tell you that he denied under oath in his Paula
Jones deposition that he had an affair with Monica Lewinsky?
A. No.
Q. Did the President ever tell you that he ministered to anyone
else who then made a sexual advance toward him?
A. No.
Q. Mr. Blumenthal, after you testified before the grand jury, did
you ever communicate to the President the questions that you were
asked?
A. No.
Q. After you testified before the grand jury, did you ever
communicate to the President the answers which you gave to those
questions?
A. No.
Q. After you were subpoenaed to testify but before you testified
before the Federal grand jury, did the President ever recant his
earlier statements to you about Monica Lewinsky?
A. No.
Q. After you were subpoenaed but before you testified before the
federal grand jury, did the President ever say that he did not want you
to mislead the grand jury with a false statement?
A. No. We didn't have any subsequent conversation about this
matter.
Q. So it would be fair also to say that after you were subpoenaed
but before you testified before the Federal grand jury, the President
never told you that he was not being truthful with you in that January
21st conversation about Monica Lewinsky?
A. Uh, he never spoke to me about that at all.
Q. The President never instructed you before your testimony before
the grand jury not to relay his false account of his relationship with
Monica Lewinsky?
A. We--we didn't speak about anything.
Q. And as to your testimony on all three appearances before the
grand jury on February 26th, June 4th and June 25th, 1998--as an aside,
by the way, let me just say I think this question has been asked of all
the witnesses, so this is not peculiar to you--but as to those three
grand jury appearances, do you adopt as truth your testimony on all
three of those occasions?
A. Oh, yes.
MR. ROGAN: If I may have a moment?
SENATOR SPECTER: Of course. Would you like a short break?
MR. ROGAN: That might be convenient, Senator.
SENATOR SPECTER: All right. It's a little past 10. We'll take a 5-
minute recess.
THE VIDEOGRAPHER: We're going off the record at 10 o'clock a.m.
[Recess.]
THE VIDEOGRAPHER: We're going back on the record at 10:12 a.m.
SENATOR SPECTER: We shall proceed; Mr. Graham questioning for the
House Managers.
MR. GRAHAM: Thank you, Senator.
BY MR. GRAHAM:
Q. Again, Mr. Blumenthal, if I ask you something that's confusing,
just slow me down and straighten me out here.
A. Thank you.
Q. Okay. I'm going to ask as direct, to-the-point questions as I
can so we all can go home.
June 4th, 1998, when you testified to the grand jury, on page 49--I
guess it's page 185 on tab 4.
MR. McDANIEL: Page 49?
MR. GRAHAM: Yes, sir.
MR. McDANIEL: Thank you.
BY MR. GRAHAM:
Q. That's where you start talking about the story that the
President told you. Knowing what you know now, do you believe the
President lied to you about his relationship with Ms. Lewinsky?
A. I do.
Q. I appreciate your honesty. You had raised executive privilege at
some time in the past, I believe.
MR. McDANIEL: I object, Senator. Mr. Blumenthal was a passive
vessel for the raising of executive privilege by the President. It's
not his privilege to assert, so the question, I think, is misleading.
BY MR. GRAHAM:
Q. At any time--I'm sorry.
[Senators Specter and Edwards conferring.]
SENATOR SPECTER: Senator Edwards and I have conferred and believe
that he can answer the question if he did not raise the privilege, so
we will overrule the objection.
SENATOR EDWARDS: Either he asserted it or it was asserted on his
behalf.
THE WITNESS: If you could repeat it, please.
BY MR. GRAHAM:
Q. I believe early on in your testimony and throughout your
testimony to the grand jury, the idea of executive privilege covering
your testimony or conversations with the President was raised. Is that
correct?
A. It was.
Q. Do you believe the White House knew that this privilege would be
asserted in your testimony? That was no surprise to them?
A. Uh--
MR. BREUER: I'm going to object. It's the White House's privilege
to assert it could not have been surprised. It's a mischaracterization
of the facts.
[Senators Specter and Edwards conferring.]
SENATOR SPECTER: Senator Edwards and I believe the objection is
well-founded on the ground that he cannot testify as to what someone
else knew. So would you rephrase the question? The objection will be
sustained.
BY MR. GRAHAM:
Q. When executive privilege was asserted, do you know how it came
about? Do you have any knowledge of how it came about?
A. What I recall is that I--in my first appearance before the grand
jury, I was asked questions about my conversations with the President.
And I went out into the hall, asked if I could go out in the hall, and
I spoke with the White House legal counsel who was there, Cheryl Mills,
and said, ``What do I say?''
Q. And she said?
A. And I was advised to assert privilege.
Q. So the executive privilege assertion came about from advice to
you by White House counsel?
A. Yes.
Q. Now, you've stated, I think, very honestly, and I appreciate,
that you were lied to by the President. Is it a fair statement, given
your previous testimony concerning your 30-minute conversation, that
the President was trying to portray himself as a victim of a
relationship with Monica Lewinsky?
A. I think that's the import of his whole story.
Q. During this period of time, the Paula Jones lawsuit, other
allegations about relationships with the President and other women were
being made and found their way in the press. Is that correct?
A. Yes.
Q. Now, when you have these morning meetings and evening meetings
about press strategy, I believe your previous testimony goes along the
lines that any time a press report came out about a story between the
President and a woman, that you would sit down and strategize about
what to do. Is that correct?
A. Well, we would, uh, talk about what the White House spokesman
would say about it.
Q. Does the name ``Kathleen Willey'' mean anything to you in that
regard?
MR. BREUER: I'm going to object. It's beyond the scope of this
deposition. In the proffer from the Managers, they explicitly state the
areas that they want to go into, and they explicitly state that they
want to speak to Mr. Blumenthal about his January 21, 1998,
conversation with the President about Monica Lewinsky. And any aspects
as to Kathleen Willey are--have nothing to do with the Articles of
Impeachment, nor do they have anything to do with the proffer made by
the Managers, and it's beyond the scope of this deposition.
SENATOR SPECTER: Just wait one second.
[Senators Specter and Edwards conferring.]
SENATOR SPECTER: Mr. Graham, as you know, the scope of the
examination of Mr. Blumenthal is limited by the subject matters
reflected in the Senate record. Are you able to substantiate the Senate
record as a basis for asking the question?
MR. GRAHAM: I'm assuming, yes, Senator, that the grand jury
testimony of Mr. Blumenthal is part of the Senate record. And on June
25th, 1998, on page 21, there's a discussion between Mr. Blumenthal and
the Independent Counsel's Office about strategy meetings and other
women, and in that testimony, he mentions that ``we discussed Paula
Jones, Kathleen Willey, in our strategy meeting.''
And I think the question will not be as ominous as some may think
it sounds. I think I can get right to the point pretty quickly about
what I'm trying to do with--
SENATOR SPECTER: Well, would you make an offer of proof so that we
can see what the scope is that you have in mind?
MR. GRAHAM: Basically, his testimony is that when a press report
came about concerning Ms. Jones or Kathleen Willey or a relationship
between the President and another woman, they sat down and strategized
about how to respond to those press accounts, what to do and what to
say--at least that's what his testimony indicates. And I just want to
ask him, once the January 21st story about Ms. Lewinsky came out, how
they discussed her in relationship to other strategy meetings.
SENATOR SPECTER: Mr. Breuer, how would you respond to Congressman
Graham's statement that as he refers to a reference to Ms. Willey in
the record?
MR. BREUER: Senator, I haven't seen the one reference, but I may--I
would acknowledge that there may be one passing reference to Ms. Willey
in the voluminous materials that are before us here in the grand jury,
Senator. But it's clearly not germane to this deposition. It's clearly
not germane to the proffer made by the Managers about why Mr. Sidney
Blumenthal was a witness. It is clearly not germane to the Articles of
Impeachment.
And, indeed, in Mr. Lindsey Graham's proffer just now, he said that
he wants to go back and ask about the January 21 conversation. It's my
view that Kathleen Willey is tangential, at best, and is not germane to
this deposition and ought not to be inquired into.
SENATOR EDWARDS: And, Senator Specter, I would ask that we go off
the record for this discussion, given the question of whether this is
within the scope of the Senate record.
SENATOR SPECTER: We shall go off the record.
THE VIDEOGRAPHER: We're going off the record at 10:20 a.m.
[Discussion off the record.]
THE VIDEOGRAPHER: We're going back on the record at 10:48 a.m.
SENATOR SPECTER: Congressman Lindsey, you may proceed.
MR. GRAHAM: Thank you, sir.
BY MR. GRAHAM:
Q. Thank you for your patience, Mr. Blumenthal. I appreciate it.
A. Thank you.
Q. Let's get back to the--we'll approach this topic another way and
we'll try to tie it up at the end here.
The January 21st article breaks, and I think it's in The Washington
Post, is that correct, the January 21st article about Ms. Lewinsky
being on tape, talking about her relationship with the President? Are
you familiar with that article?
A. I'm familiar with an article on January 21st in The Washington
Post.
Q. And what--what was the essence of that article, as you remember
it?
A. If you have it there, I'd be happy to look at it.
Q. Yeah. Let's see if we can find it, what tab that is. Tab 7.
[Witness perusing document.]
THE WITNESS: Well--
BY MR. GRAHAM:
Q. If you'd like a chance to read it over, just take your time.
A. Yes. Thank you.
[Witness perusing document.]
THE WITNESS: It's a long article.
BY MR. GRAHAM:
Q. Yes, sir, it is, and just--
A. Yeah.
Q. --just take your time. I'm not going to give you a test on the
article. I just wanted--
A. No. I just wanted to read it.
Q. --to refresh your memory. Absolutely, you take your time.
A. I hope you don't mind if I took the time here.
Q. No, sir. Are you--you're okay now?
A. I am.
Q. Okay. In essence, what this article is--is alleging is what we
now know, the allegations that Ms. Lewinsky had a relationship with the
President, that Mr. Jordan was trying to help her secure counsel, to
file an affidavit saying they had no relationship, and the relationship
on January 21st was being exposed through some tape recordings,
supposedly, the Independent Counsel had access to between Ms. Lewinsky
and Ms. Tripp. Is that correct?
A. Well, there are a lot of questions in there.
Q. Okay, yeah, and I'm sorry.
This article seems to suggest that Ms. Lewinsky is telling a
friend--
A. Mm-hmm.
Q. --that she has a relationship with the President, a sexual
relationship with the President.
A. Mm-hmm.
Q. You understand that from the article?
A. Yes.
Q. This article also alleges that an affidavit was filed by Ms.
Lewinsky denying that relationship, and Mr. Jordan sought an attorney
for her, a friend of the President. Is that correct?
A. It says she filed an affidavit, and I'm just looking for where
it says that Jordan had secured the attorney.
Q. The very first paragraph, let me read it. ``The Independent
Counsel Kenneth Starr has expanded his investigation of President
Clinton to examine whether Clinton and his close friend, Vernon Jordan,
encouraged a 24-year-old''--
A. Right.
Q. --``former White House intern to lie to lawyers for Paula Jones
about whether the intern had an affair with the President, sources
close to the investigation said yesterday.''
A. Right.
Q. So I guess that first paragraph kind of sums up the accusation.
A. I think--
Q. What type reaction did the White House have when this--as you
recall--when this article came to light?
A. I--I think the White House was overwhelmed with press inquiries.
Q. Was there a sense of alarm that this was a bad story?
A. Yes.
Q. And wasn't there a sense of reassurance by the President himself
that this was an untrue story?
A. The President did make a public statement that afternoon.
Q. And I believe White House officials on his behalf denied the
essence of this story; is that correct?
A. Yes.
Q. And basically, you were passing along what somebody you trust
and admire told you to be the case, and from the White House point of
view, that was the response to this story, that we deny these
allegations.
MR. McDANIEL: Senator, I really object to the question where we mix
``you'' and ``we'' and the ``White House.'' I'd like, if possible, for
the question--if they want to know what Mr. Blumenthal did, to ask him
what he did, and questions about what the White House did and what we
and you did.
MR. GRAHAM: That's fair enough.
MR. McDANIEL: Okay, we thank you.
SENATOR SPECTER: We think that's well-founded.
MR. GRAHAM: Yes, and I agree. I agree that is well-founded.
BY MR. GRAHAM:
Q. Did you have any discussions with White House press people about
the nature of this relationship after this article broke?
A. No.
Q. Did you have any discussions with White House lawyers after this
article broke about the nature of the relationship?
A. No.
Q. After you had the conversation with the President, sometime the
week of the 21st--I believe that's your testimony--shortly after the
news story broke, this 30-minute conversation where he tells you
about--
A. There's not a question.
Q. Okay. Is that correct? When did you have this conversation with
the President? Do you recall?
A. Yes. It was in the early evening of January 21st.
Q. Early evening of January 21st?
A. Yes.
Q. The same day the story was reported?
A. Yes.
Q. Okay. So, from your point of view, this was something that
needed to be addressed?
MR. McDANIEL: Your Honor, I--Senator, I object to the question
about ``this'' is something that needs to be addressed. I don't
understand what the ``this'' is, exactly, that the question refers to.
Does it refer to the story? Does it refer to the President's statement
to Mr. Blumenthal?
SENATOR SPECTER: Well, we think--Senator Edwards and I concur that
the witness can answer the question. If he does not understand it, he
can say so and then can have the question rephrased.
BY MR. GRAHAM:
Q. You have a conversation with the President on the same day the
article comes out, and the conversation includes a discussion about the
relationship between him and Ms. Lewinsky. Is that correct?
A. Yes.
Q. Okay. So it was certainly on people's minds, including the
President, is that correct, the essence of this story?
MR. McDANIEL: I object to the question about whether it's on
people's minds. I think he can answer about what he knew or about what
he learned from people who spoke to him, but the question goes far
beyond that.
BY MR. GRAHAM:
Q. Well, let me ask you this. We know it was on the President's
mind.
SENATOR SPECTER: Senator Edwards and I think that, technically,
that's correct, and perhaps you can avoid it by just pinpointing it
just a little more.
MR. GRAHAM: Yes. We'll try to be laser-like in these questions.
BY MR. GRAHAM:
Q. You had a conversation with the President of the United States
about his relationship with Ms. Lewinsky on the same day The Washington
Post article came out. That's correct? Yes or no?
A. That--I--I--that's right.
Q. Okay. During that period of time, that day or any day
thereafter, were you involved in any meeting with White House lawyers
or press people where the conversation--or where the topic of Ms.
Lewinsky's allegations or the--Ken Starr's allegations about Ms.
Lewinsky came up?
A. I'm confused about which allegations you're talking about.
Q. That she had a relationship with the President, and they were
trying to get her to file a false affidavit. Did that topic ever come
up in your presence with the Press Secretary, White House press people
or lawyers for the White House?
A. I think the whole story was discussed by senior staff in the
White House.
Q. When did that begin to occur?
A. I'm sure we were discussing it on January 21st.
Q. Do you recall that every--
A. Every--everyone in the country was talking about it.
Q. Well, do you recall the tenor of that conversation? Do you
recall the flavor of it? Can you describe it the best you can, about--
was there a sense of alarm, shock? How would you describe it?
A. I think we felt overwhelmed by the crisis atmosphere.
Q. Did anybody ever suggest who is Monica Lewinsky, go find out
about who she is and what she does?
A. No.
Q. So is it your testimony that this accusation comes out on
January 21st, and the accusation being that a White House intern has an
inappropriate relationship with the President, filed a false affidavit
on his behalf, and nobody at this meeting suggested let's find out who
Monica Lewinsky is and what's going on here?
A. Well, I wasn't referring to any meeting, but in any of my
discussions with members of the White House staff, nobody discussed
Monica Lewinsky's personal life or decided that we had to find out who
she was.
Q. Could I turn you now to Tab 15, please? Okay.
MR. McDANIEL: Would you like him to read this?
MR. GRAHAM: Yes. Yes, please. Just take your time. And I am now
referring to an AP story by Karen G-u-l-l-o. I don't want to
mispronounce her name.
[Witness perusing document.]
THE WITNESS: I'm ready, Congressman.
BY MR. GRAHAM:
Q. Thank you.
And this article--do you know this reporter, by any chance?
A. I do know this reporter, but I did not know this reporter on
January 30th.
Q. All right. Do you subsequently know--
A. Some months later, I met this reporter.
Q. And the basic essence of my question, Mr. Blumenthal, will be
this report indicates some derogatory information about Ms. Lewinsky,
and it also has some statements by White House Press Secretary and Ms.
Lewis. And I want to ask how those two statements go together.
This report indicates that a White House aide called this reporter
to suggest that Ms. Lewinsky's past included weight problems, and she
was called ``The Stalker.'' And it says that ``Junior staff members,
speaking on condition that they not be identified, said she was known
as a flirt, wore her skirts too short, was `` `a little bit weird'.''
And the next paragraph says: ``Little by little, ever since the
allegations of an affair between President Clinton and Ms. Lewinsky
surfaced 10 days ago, White House sources have waged a behind-the-
scenes campaign to portray her as an untrustworthy climber obsessed
with the President.''
Do you have any direct knowledge or indirect knowledge that such a
campaign by White House aides or junior staff members ever existed?
A. No.
Q. Okay. Do you ever remember hearing Ms. Lewis or Mr. McCurry
admonishing anyone in the White House about ``watch what you say about
Ms. Lewinsky''?
A. No. I don't recall those incidents described in this article,
but I do note that among senior advisors at one of the meetings that we
held--it could have been in the morning or late afternoon--we felt very
firmly that nobody should ever be a source to a reporter about a story
about Monica Lewinsky's personal life, and I strongly agreed with that
and that's what we decided.
Q. When did that meeting occur?
A. I'd say within a week of the story breaking.
Q. Who was at that meeting?
A. I don't recall exactly, but I would say that the list of names
that I mentioned before.
Q. And that would be?
A. I may not get them all, but I would say Chuck Ruff, Cheryl
Mills, Bruce Lindsey, Lanny Breuer, Jim Kennedy, Mike McCurry, Joe
Lockhart, Adam Goldberg, Don Goldberg, Ann Lewis, Paul Begala, Rahm
Emanuel, myself.
Q. And this occurred about a week after the January 21st article?
A. I don't recall the exact date.
Q. At least 7 days?
A. Within a week--
Q. Okay.
A. --I believe.
Q. Would it be fair to say that you were sitting there during this
conversation and that you had previously been told by the President
that he was in essence a victim of Ms. Lewinsky's sexual demands, and
you said nothing to anyone?
MR. McDANIEL: Is the question, ``You said''--
THE WITNESS: I don't--
MR. McDANIEL: Is the question, ``You said nothing to anyone about
what the President told you?''?
MR. GRAHAM: Right.
THE WITNESS: I never told any of my colleagues about what the
President told me.
BY MR. GRAHAM:
Q. And this is after the President recants his story--recounts his
story--to you, where he's visibly upset, feels like he's a victim, that
he associates himself with a character who's being lied about, and you
at no time suggested to your colleagues that there is something going
on here with the President and Ms. Lewinsky you need to know about. Is
that your testimony?
A. I never mentioned my conversation. I regarded that conversation
as a private conversation in confidence, and I didn't mention it to my
colleagues, I didn't mention it to my friends, I didn't mention it to
my family, besides my wife.
Q. Did you mention it to any White House lawyers?
A. I mentioned it many months later to Lanny Breuer in preparation
for one of my grand jury appearances, when I knew I would be questioned
about it. And I certainly never mentioned it to any reporter.
Q. Do you know how, over a period of weeks, stories about Ms.
Lewinsky being called a stalker, a fantasizer, obsessed with the
President, called the name ``Elvira''--do you know how that got into
the press?
A. Which--which--which question are you asking me? Which part of
that?
Q. Okay. Do you have any idea how White House sources are
associated with statements such as ``She's known as `Elvira','' ``She's
obsessed with the President,'' ``She's known as a flirt,'' ``She's the
product of a troubled home, divorced parents,'' ``She's known as `The
Stalker' ''? Do you have any idea how that got in the press?
MR. BREUER: I'm going to object. The document speaks for itself,
but it's not clear that the terms that Mr. Lindsey has used are
necessarily--any or all of them--are from a White House source. I
object to the form and the characterization of the question.
MR. GRAHAM: The ones that I have indicated are associated with the
White House as being the source of those statements and--
SENATOR SPECTER: Senator Edwards and I think that question is
appropriate, and the objection is overruled.
THE WITNESS: I have no idea how anything came to be attributed to a
White House source.
BY MR. GRAHAM:
Q. Do you know a Mr. Terry Lenzner?
A. I--I met him once.
Q. When did you meet him?
A. I met him outside the grand jury room.
Q. And who is he?
A. He's a private investigator.
Q. And who does he work for?
A. He works for many clients, including the President.
Q. Okay. Mr. Blumenthal, I appreciate your candor here.
Do you know Mr. Harry Evans?
A. Harold Evans?
Q. Yes, sir.
A. Yes, I do.
Q. Who is Mr. Harold Evans?
A. Harold Evans is--I don't know his exact title right now. He
works for Mort Zuckerman, involving his publications, and he's the
husband of my former editor, Tina Brown.
Q. Has he ever worked for the New York Daily News?
MR. BREUER: I'm going to object to this line of questioning. It
seems well beyond the scope of this deposition. I have never heard of
Mr. Harold Evans, and it's not clear to me that's anywhere in this
voluminous record or any of these issues.
SENATOR SPECTER: Senator Edwards and I think it would be
appropriate to have an offer of proof on this, Congressman Graham.
MR. GRAHAM: I'm going to ask Mr. Blumenthal if he has ever at any
time passed on to Mr. Evans or anyone else raw notes, notes, work
products from a Mr. Terry Lenzner about subjects of White House
investigations to members of the press, to include Ms. Lewinsky.
SENATOR SPECTER: Relating to Monica Lewinsky?
MR. GRAHAM: Yes, and anyone else.
MR. McDANIEL: That's a good question. I think we don't have any
objection to that question.
SENATOR SPECTER: Well, we still have to rule on it. Overruled. The
objection is overruled.
MR. GRAHAM: All right. Now I think I know the answer.
[Laughter.]
BY MR. GRAHAM:
Q. So let's phrase it very clearly for the record here. You know
Mr. Evans; correct?
A. I do.
Q. Have you at any time received any notes, work product from a Mr.
Terry Lenzner about anybody?
A. No.
Q. Okay. So, therefore, you had nothing to pass on?
A. Right.
Q. Fair enough. Do you know a Mr. Gene Lyons?
A. Yes, I do.
Q. Who is Mr. Gene Lyons?
A. He is a columnist for the Arkansas Democrat Gazette.
Q. Are you familiar with his appearance on ``Meet the Press'' where
he suggests in an article he wrote later that maybe the President is a
victim similar to David Letterman in terms of somebody following him
around, obsessed with him?
A. Is this one of the exhibits?
Q. Yes, sir.
A. I wonder if you could refer me to it.
Q. Sure. I can't read my writing.
BY MR. GRAHAM:
Q. Well, while we are looking for the exhibit, let me ask you this.
Do you have any independent knowledge of him making such a statement?
A. Well, I'd like to see the exhibit so--
Q. Okay.
A. --so I could know exactly what he said.
Q. Okay.
MR. McDANIEL: If I might--Congressman, I don't know whether the one
you're thinking of is--I note in Exhibit 20, there are--well, it's not
a story by Mr. Lyons--
MR. GRAHAM: And that's it.
MR. McDANIEL: There are references to him in--in that story.
MR. GRAHAM: That's it. Thank you very much.
MR. McDANIEL: You're welcome.
MR. GRAHAM: I appreciate it.
THE WITNESS: This is 20?
BY MR. GRAHAM:
Q. Yes, sir.
A. Thank you.
Do you mind if I just read through it?
Q. Yes, sir. Take your time.
A. Thank you. [Witness perusing document.] I've read this.
Q. My question is that this article is a Boston Globe article,
Saturday, February the 21st, and it references an appearance on ``Meet
the Press'' by Mr. Gene Lyons. And I believe you know who Mr. Gene
Lyons is; is that correct?
A. I do.
Q. Did you know who he was in January of 1998?
A. I did.
Q. And in this press appearance, it refers to it being the Sunday
before the Saturday, February 21st, sometime in the middle of February.
He indicates on the show, at least this article recounts that he
indicates, that the President could be in fact in ``a totally innocent
relationship in which the President was, in a sense, the victim of
someone, rather like the woman who followed David Letterman around.''
Do you know how Mr. Lyons would come to that conclusion? I know
word travels fast, but how would he know that? Do you have any
independent knowledge of how he would know that?
A. What exactly is the question?
Q. Well, the question is Mr. Lyons is indicating in the middle of
February that the truth of the matter may very well be that the
President is in an ``innocent relationship in which the President was,
in a sense, the victim of someone, rather like the woman who followed
David Letterman around,'' and the question is that scenario of the
President being a victim of someone obsessed seems rather like the
conversation you had with the President on January the 21st. Do you
know how Mr. Lyons would have had that take on things?
MR. McDANIEL: Well, I object to a question that sort of loads up
premises, Senators. That question sort of, you know, says, well, this
conversation is a lot like the one you had with the President, and then
asks the question. And the danger to the witness is that he'll--by
answering the question accepts the premise.
And I ask that if you want to ask him whether it's like the
conversation with the President, that's a fair question, he'll answer
it, but it ought to be broken out of there.
[Senators Specter and Edwards conferring.]
SENATOR SPECTER: Senator Edwards and I disagree on the ruling, so
we're going to take Senator Edwards and ask you to rephrase the
question since it--
[Laughter.]
MR. GRAHAM: Fair enough.
BY MR. GRAHAM:
Q. The characterization embodied here indicates this could be a
totally innocent relationship in which the President was in a sense the
victim of someone. Is it fair to say, Mr. Blumenthal, that is very much
like the scenario the President painted to you when you talked with him
on January the 21st?
A. It could be like that.
Q. Okay. And it goes on further: ``rather like the woman who
followed David Letterman around.'' Is that very much like the
characterization the President indicated to you between him and Ms.
Lewinsky?
A. Could be.
Q. Did you ever at any time talk with Mr. Gene Lyons about Ms.
Lewinsky or any other person that was the subject of a relationship
with the President?
A. I did talk to Gene Lyons about Monica Lewinsky.
Q. Could you tell us what you told him?
A. He asked me my views, and I told him, in no uncertain terms,
that I wouldn't talk about her personally. I talked about Monica
Lewinsky with all sorts of people, my mother, my friends, about what
was in the news stories every day, just like everyone else, but when it
came to talking about her personally, I drew a line.
Q. So, when you talk to your mother and your friends and Mr. Lyons
about Ms. Lewinsky, are you telling us that you have these
conversations, and you know what the President has told you and you're
not tempted to tell somebody the President is a victim of this lady,
out of his own mouth?
A. Not only am I not tempted, I did not.
Q. You don't know how all this information came out? You have no
knowledge of it at all?
MR. McDANIEL: I don't understand the question about--
MR. GRAHAM: About her being a stalker, her being obsessed with the
President, the President being like David Letterman in relationship to
her.
BY MR. GRAHAM:
Q. You had no knowledge of how that all happened in the press?
A. I have an idea how it started in the press.
Q. Well, please share that with us.
A. I believe it started on January 21st with the publication of an
article in Newsweek by Michael Isikoff that was posted on the World
Wide Web and faxed around to everyone in the news media, in Washington,
New York, everywhere, and in the White House. And in that article,
Michael Isikoff reported the contents of what became known as the
talking points.
And there was a mystery at the time about who wrote the talking
points. We know subsequently that Monica Lewinsky wrote the talking
points. And in that document, the author of the talking points advises
Linda Tripp that she might refer to someone who was stalking the ``P'',
meaning the President, and after that story appeared, I believe there
were a flood of stories and discussions about this, starting on
``Nightline'' that very night and ``Nightline'' the next night and so
on. And that's my understanding from observing the media of how this
started.
Q. How long have you been involved in the media yourself?
A. Before I joined the White House staff, I was a journalist for 27
years.
Q. Is it your testimony that the Isikoff article on the 21st
explains how White House sources contact reporters in late January and
mid-February trying to explain that the President is a victim of a
stalker, an obsessed young lady, who is the product of a broken home?
Is that your testimony?
A. No.
MR. BREUER: I'm going to object to the form of the question. There
is no evidence that White House officials, both in January and in
February, if at any time, contacted sources, press sources.
MR. GRAHAM: I will introduce these articles. The articles are dated
with White House sources, unsolicited, calling about this event, saying
these things in January and February.
MR. BREUER: Well--
SENATOR SPECTER: Senator Edwards and I agree that the question may
be asked and answered. Overruled.
THE WITNESS: If you could restate it, please?
BY MR. GRAHAM:
Q. Is it your testimony that the White House sources that are being
referred to by the press are a result of the 21st of January Isikoff
article? That's not what you're saying, is it?
A. No.
MR. McDANIEL: Well--
MR. GRAHAM: Thank you.
MR. McDANIEL: --I don't think that there ought to be argument with
Mr. Blumenthal. I think he ought to be asked a question and given an
opportunity to answer it, and that's an argumentative question and
followed up by, ``That's not what you're saying, is it?''
I also think the questions are remarkably imprecise, in that they
do not specify what information it is this questioner is seeking to get
Mr. Blumenthal to talk about, and in that regard, I think the questions
are both irrelevant and unfair.
SENATOR EDWARDS: Are you objecting to a question that's already
been asked and answered?
MR. McDANIEL: I might be, Senator, and I had that feeling when I
heard Mr. Blumenthal say something, that I might be doing that.
MR. GRAHAM: That would be my reply. He understood what I asked, and
he answered, and I'll accept his answer and we'll move on.
SENATOR SPECTER: Well, I think the objection is mooted at this
point.
MR. GRAHAM: Okay.
SENATOR SPECTER: I do--I do think that to the extent you can be
more precise, because these articles do contain--
MR. GRAHAM: Yes, sir.
SENATOR SPECTER: --a lot of information. We're still looking for
that laser.
MR. GRAHAM: Yes, sir.
BY MR. GRAHAM:
Q. And these--and the reason this comes up, Mr. Isikoff--excuse
me--Mr. Blumenthal, is you've referenced the Isikoff article on the
21st, and my question goes to White House sources indicating that Ms.
Lewinsky is a stalker, the January 30th article, that she's obsessed
with the President, that she wears tight skirts.
What I'm trying to say is that you--you are not saying--it is not
your testimony--that those White House sources are picking up on the
21st article, are you?
A. I don't know about any White House sources on these stories.
Q. When you talked to Mr. Lyons, you never mentioned what time at
all that Ms. Lewinsky was making demands on the President and he had to
rebuff her?
A. Absolutely not.
Q. You never at one time told Mr. Lyons or anyone else that the
President felt like that he was a victim much like the person in the
novel, Darkness at Noon?
MR. McDANIEL: Well, I object to that question. This witness has
testified that he told his wife and that he told White House counsel at
a later date, and the question included anyone else. So I think it--
MR. GRAHAM: Yes. Strike that.
BY MR. GRAHAM:
Q. Excluding those two people?
A. Well, I believe I've asked--I've been asked, and answered that,
and I haven't told anyone else.
Q. Was there--
A. I didn't tell anyone else.
Q. Was there ever an investigation at the White House about how
these stories came out, supposedly?
A. No.
Q. Was anybody ever fired?
A. No.
MR. GRAHAM: Thank you, Mr. Blumenthal.
THE WITNESS: I thank you.
MR. ROGAN: No further questions.
MR. BREUER: Could we take a 5-minute break, Senator?
SENATOR SPECTER: We can. We will recess for 5 minutes.
THE VIDEOGRAPHER: We are going off the record at 11:24 a.m.
[Recess.]
THE VIDEOGRAPHER: We're going on the record at 11:40 a.m.
SENATOR SPECTER: Turn to White House counsel, Mr. Lanny Breuer.
MR. BREUER: Senators, the White House has no questions for Mr.
Blumenthal.
SENATOR SPECTER: We had deferred one line of questions which had
been subject objection and considerable conference, and we put it at
the end of the transcript so it could be excised. Do you wish to--
MR. GRAHAM: Yes.
SENATOR SPECTER: --proceed further?
MR. BREUER: May we approach off the record, Senators?
SENATOR SPECTER: Off the record.
THE VIDEOGRAPHER: We're going off the record at 11:41 a.m.
[Discussion off the record.]
THE VIDEOGRAPHER: We are going back on the record at 12:10 p.m.
SENATOR SPECTER: The Senators have considered the matter, and in
light of the references, albeit abbreviated, in the record and the
generalization that answers--questions and answers would be permitted,
reserving the final judgment to the full Senate, we will permit
Congressman Graham to question on pattern and practice with respect to
Ms. Willey.
MR. GRAHAM: Okay. Thank you.
further examination by house managers
BY MR. GRAHAM:
Q. Mr. Blumenthal, we're really close to the end here. If you could
turn to Tab 5, page 193.
A. We have it.
Q. Okay, thank you.
And page 20, the last question, it's in the right-hand corner. I'll
read the question, and we'll kind of follow the testimony. ``Have you
ever had a discussion with people in the White House or been present
during any meeting where the allegation has come up that other women
are fabricating an affair with the President?''
Now, could you read the answer for me, please?
A. Sure. My--my answer in the grand jury is this: ``We've discussed
news stories that arose out of the Jones case, which was dismissed by
the judge as having no basis, in which there were allegations made
against the President, and these were stories that were in the press.''
Q. ``And you''--''And did you discuss those with the President?''
You said, ``No.''
And the next question is: ``So what form did you discuss those news
stories in?''
And your answer was?
A. ``In strategy meetings.''
Q. Okay. ``And that would include the daily meetings, the morning
and the evening meetings?''
A. Yes.
Q. And your answer was ``Yes.''
Now, within that context, I want to walk through a bit how those
strategy meetings came about and the purpose of the strategy meetings.
The next question goes as follows: ``And there were names of the
women that you discussed in that context that there had been news
stories about and public allegations of an affair with the President?''
And your answer was?
A. ``As I recall, we discussed Paula Jones, Kathleen Willey, we've
discussed''--and the rest is redacted.
Q. Redacted--and that's fine, that's fine.
And the question later on, on line 24: ``When you say that that was
a complete and utter fraudulent allegation--'', the answer is: ``In my
view, yes.'' Right?
A. Well--
Q. About a woman?
MR. McDANIEL: Senator, I must object to this, because I believe
that question, clearly from the context, refers to redacted material--
MR. GRAHAM: Right.
MR. McDANIEL: --which has been preserved as secret by the grand
jury, and I think it's somewhat misleading to talk about a fraudulent
allegation that the grand jury heard that Mr. Blumenthal testified
about, which is clearly not in the record before the Senate.
SENATOR SPECTER: Well, it is unclear on the face of the record. So,
Congressman Graham, if you could--
MR. GRAHAM: The point I'm trying--
SENATOR SPECTER: --excuse me, let me just finish--
MR. GRAHAM: Yes.
SENATOR SPECTER: --if you could specify on what is on the record
that you've put in up to now.
MR. GRAHAM: Okay. What I'm reading from, Senator, is--is a question
and answer and a redacted name, and the point I'm trying to make is
ever who that person was, the allegation was considered to be
fraudulent based on your prior testimony.
THE WITNESS: That was--that was my testimony, that it was my view.
BY MR. GRAHAM:
Q. And that leads to this question. Was there ever a discussion in
these strategy meetings where there was an admission that the
allegation was believed to be true against the President in terms of
relationship with other women?
MR. BREUER: I'm going to object to the form of the question in that
it's referring to other women. Even based on the discussion that went
off the record, I think that what Mr. Graham is doing now is certainly
beyond any record in this case.
SENATOR SPECTER: Senator Edwards would like to hear the question
repeated.
MR. GRAHAM: The strategy meetings--
SENATOR SPECTER: Good idea?
MR. GRAHAM: Yes, sir.
BY MR. GRAHAM:
Q. The strategy meetings involved press accounts of allegations
between the President and other women. The question is very simple. At
any of those meetings, was it ever conceded that the President did have
in fact a relationship?
MR. BREUER: Object. I object to the question for the reasons I just
previously stated.
SENATOR SPECTER: Senator Edwards raises the concern that I think
he's correct on, that we have limited it to Willey, Ms. Willey. So, if
you would--if you would focus--
MR. GRAHAM: Absolutely.
SENATOR SPECTER: --there--
MR. GRAHAM: Absolutely.
SENATOR SPECTER: --it would be within your proffer and what we have
permitted.
MR. GRAHAM: Yes, sir. Very well.
BY MR. GRAHAM:
Q. In regards to Ms. Willey, is it fair to say that the consensus
of the group was that these allegations were not true?
A. I don't know.
Q. Do you recall Ms. Willey giving a ``60 Minutes'' interview?
A. Yes.
Q. Do you recall any discussions after the interview at a strategy
meeting about Ms. Willey?
MR. BREUER: I want the record to be clear that the White House has
a continuing objection as to this line of inquiry.
SENATOR SPECTER: The record will so note.
THE WITNESS: If you could repeat the question, please.
MR. GRAHAM: Yes.
THE WITNESS: Sorry.
BY MR. GRAHAM:
Q. After the ``60 Minutes'' interview, was there ever a strategy
meeting about what she said?
A. At one of the morning or evening meetings, we discussed the ``60
Minutes'' interview.
Q. And can you--I--I know it's hard because these meetings go on a
lot. How--do you know who was there on that occasion, who would be the
players that would be there?
A. They would be the same as before. I'd be happy to enumerate them
for you, if you want me to.
Q. But the same as you previously testified to?
A. Yes.
Q. Okay, that's fine.
Do you recall what the discussions were about in terms of how to
respond to the ``60 Minutes'' story?
A. Yes.
Q. Could you tell us?
A. They were what our official spokespeople would say.
Q. Did they include anything else?
A. Yes.
Q. Could you please tell us?
A. There was a considerable complaining about how, in the ``60
Minutes'' broadcast, Bob Bennett was not given adequate time to speak
and present his case, and how he was, as I recall, poorly lighted.
Q. Was there any discussion about what Ms. Willey said herself and
how that should be responded to?
A. I don't recall exactly. We just spoke about what our official
spokespeople should respond to.
Q. Did anybody ever discuss the fact that Ms. Willey may have had a
checkered past?
A. No, absolutely not. We never discussed the personal lives of any
woman in those meetings.
Q. Did it ever come up as to, well, here's what we know about
Kathleen Willey and the President, or let's go see what we can find out
about Kathleen Willey and the President?
A. No.
Q. Who had the letters that Kathleen Willey wrote to the President?
A. I don't know exactly. The White House had them.
Q. Isn't it fair to say that somebody found those letters, kept
those letters, and was ready to respond with those letters, if needed
to be?
MR. BREUER: I'm going to object to the form of the question that
it's outside the proffer of the Manager.
[Senators Specter and Edwards conferring.]
MR. McDANIEL: Yes. I object to the compound nature of the question,
and--
SENATOR SPECTER: Could you rephrase the question, Congressman
Lindsey--
MR. GRAHAM: Yes, sir.
SENATOR SPECTER: --or, Graham?
MR. GRAHAM: Yes, sir.
SENATOR SPECTER: I think that would solve your problem.
BY MR. GRAHAM:
Q. There were letters written to Ms. Willey to the President that
were released to the media. Is that correct?
A. Yes.
Q. Do you know who gathered those letters up and how they were
gathered up?
MR. BREUER: Objection.
SENATOR SPECTER: Senator Edwards and I agree that the Congressman
may ask the question. Overruled.
THE WITNESS: No.
BY MR. GRAHAM:
Q. Would it be fair to say, using common sense, that somebody was
planning to answer Ms. Willey by having those letters to offer to the
press?
MR. BREUER: Objection.
MR. McDANIEL: It's argumentative.
MR. BREUER: It certainly is.
SENATOR SPECTER: Would you repeat that question?
BY MR. GRAHAM:
Q. The question is: Mr. Blumenthal, do you believe it's a fair
assumption to make that somebody in the White House made a conscious
effort to go seek out the letters between the President and Ms. Willey
and use in response to her allegations?
[Senators Specter and Edwards conferring.]
THE WITNESS: Well, that's an opin--
MS. MARSH: Wait, wait, wait.
MR. McDANIEL: Please, Mr. Blumenthal.
THE WITNESS: Yes.
SENATOR SPECTER: Senator Edwards says, and I agree with him, that
you ought to direct it to somebody with specific knowledge so you
don't--
BY MR. GRAHAM:
Q. Do you have any knowledge--
SENATOR SPECTER: --deal totally with speculation.
BY MR. GRAHAM:
Q. Do you have any specific knowledge of that event occurring,
somebody gathering the letters up, having them ready to be able to
respond to Ms. Willey if she ever said anything?
A. No.
Q. You have no knowledge whatsoever of how those letters came into
the possession of the White House to be released to the press?
A. No, I don't. I don't know--
MR. GRAHAM: Thank you. I--
THE WITNESS: --who had them--
MR. GRAHAM: --don't have any--
THE WITNESS: --in the White House.
MR. GRAHAM: --further questions.
------
program
Mr. LOTT. Under the order just granted, the Senate will
meet again as the Court of Impeachment on Saturday. On
Saturday, the Senate will hear presentations from the House
managers and the White House counsel for not to exceed 6 hours.
After those presentations, the Senate will resume its business
on Monday for 6 hours, beginning at 1 p.m.
------
ADJOURNMENT UNTIL 10 A.M. SATURDAY, FEBRUARY 6, 1999
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent
the Senate stand in adjournment under the previous order, and
ask that all Senators remain at their desks until the Chief
Justice departs the Chamber.
There being no objection, at 4:31 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Saturday, February
6, 1999, at 10 a.m.
------
Saturday, February 6, 1999
[From the Congressional Record]
The Senate met at 10:05 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the
following:
Mr. Chief Justice, it is with profound sadness that we
express our grief over the loss of our legislative clerk, R.
Scott Bates, who, along with his wife, Ricki Ellison Bates,
last evening was struck by a car while walking across Lee
Highway in Arlington. Mrs. Bates remains in serious condition
and needs our prayers throughout this day.
Let us pray.
O eternal God, our heavenly Father, who loves us with an
everlasting love and transforms the darkness of the Valley of
the Shadow of Death into bright hope, the Senate family of
Members and staff call on You for strength, comfort, and
courage. Tragic death has taken from us a beloved friend, an
admired fellow worker, a faithful Senate employee for over 30
years.
In the quietness we can hear his voice call the roll, read
proposed legislation and, most of all, express his caring
friendship to us all.
Thank You for Scott's commitment to excellence and his
dedication to the work of the Senate regardless of long
sessions or arduous debate. We intercede now for his wife, for
her complete healing and recovery. Hold his wonderful children
in Your loving arms: Lisa, Lori, and Paul. We remember with
gratitude Lisa and Lori's outstanding service as pages in the
Senate. Help them and their brother, Paul, to know that their
dad, whom they loved so deeply, is with You. He trusted You in
this life and now lives with You forever. Traumatic as was his
physical death, it was but a transition in his eternal life.
Now, Lord, bless the Senate as it turns to the work of this
day, cognizant of the shortness of time and the length of
eternity for all of us. In the sure hope of the resurrection
and eternal life. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The majority leader is recognized.
------
R. SCOTT BATES, LEGISLATIVE CLERK
Mr. LOTT. Mr. Chief Justice, our Senate family grieves
today and our hearts are heavy as a result of the tragic loss
of Scott Bates. Senators come and Senators go, but Scott has
been a fixture in this great Chamber for 30 years and the last
8 years as our legislative clerk. His familiar voice was a
pillar of our continuity and tradition. He was not just a
coworker; he was a friend, really a great guy. Even as we
conduct our business today, we will be grieving, but those who
knew him well know that that is exactly what he would want us
to do, to continue with the work of the Senate to which he
devoted his life. He was an example of public service at its
finest, never claiming the spotlight, never seeking a headline,
but always working for the good of this institution and for the
country we are here to serve.
We pray for the recovery of his wife, Ricki. We ask that
the Lord keep her and their three children always in His care.
Before I ask for a moment of silence by the Senate, I yield to
Senator Daschle for his comments.
The CHIEF JUSTICE. The minority leader is recognized.
Mr. DASCHLE. I thank the majority leader. I thank our
Chaplain for his gracious prayer.
The presence of Scott Bates in that chair and in our lives
is something most of us have counted on each and every day. As
the majority leader so eloquently said, he, Scott, served the
Senate, our country, and each of us so admirably for the last
30 years. Who can forget that resonant voice? Who can forget
the call of the roll? Who can forget the authority with which
he articulated each of our names? The answer is--no one.
When Scott began his service, Senator Mansfield was the
majority leader and Senator Hugh Scott the minority leader.
Ever since that time, Scott was an integral part of the history
created in this Chamber and certainly an integral part of our
Senate family. He grew up with small town values, active in his
church and Boy Scouts. He loved politics and school and served
as a page in both the House and the Senate in the Arkansas
Legislature. Scott's love of politics came naturally for him.
His father actually served as a member of the Arkansas State
Legislature. In 1970 he came here as a summer intern for
Senator John McClellan, in the bill clerk's office, and began
his work for us in 1973.
Today, we send our thoughts and our prayers to his wife,
Ricki, who remains in the hospital, and to their three
children, Lisa, Lori, and Paul, and his family in Arkansas, who
are now dealing with this tragic loss.
Mr. LOTT. Mr. Chief Justice, I now ask that all Senators
rise and let's observe a moment of silence for our friend,
Scott Bates.
[Moment of silence, Senators rising.]
Thank you, Mr. Chief Justice.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
Mr. LOTT. Mr. Chief Justice, under the order for today
there will be a 6-hour presentation equally divided between the
House managers and the White House counsel. It is our intention
to have a break around noon so we will have an opportunity for
lunch, and also it may be necessary to have one break, a brief
break, before that time.
Following today's presentation, the Senate will adjourn
over until 1 p.m. on Monday.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
the proceedings of the trial is approved to date.
Order of Procedure
The CHIEF JUSTICE. Pursuant to the order of February 1,
1999, the managers on the part of the House of Representatives
and the counsel for the President each have 3 hours to make
their presentation. The Chair recognizes Mr. Manager Rogan to
begin the presentation on the part of the House of
Representatives.
Mr. Manager ROGAN. Mr. Chief Justice, distinguished counsel
for the President, Members of the United States Senate, this is
the first and only chance you will have in this historic
impeachment trial to consider the evidence from a few of the
actual witnesses. After weeks of proceedings, the day has
finally arrived when the U.S. Senate will listen, not just to
lawyers talk about the evidence, but to witnesses with direct
knowledge of the unlawful conduct of the President of the
United States.
Today in particular, you will have your only opportunity to
hear from the one person whose testimony invariably leads to
the conclusion that the President of the United States
committed perjury and obstructed justice in a Federal civil
rights action. That person is Monica Lewinsky, a bright lady
whose life has forever been marked by the most powerful man on
the Earth.
If her testimony is truthful, then the President committed
the offenses alleged in the articles of impeachment. Many
different opinions have been formed about her over the last
year. Nearly all of this has been fueled by spin and by
propaganda rather than by truth. Today, the analysis and the
speculation ends. There is only one judgment the Senate must
make for history about Monica Lewinsky: Do you believe her?
[Text of videotape presentation:]
SENATOR DeWINE. Do you, Monica S. Lewinsky, swear or affirm
that the evidence you shall give in the case now pending
between the United States and William Jefferson Clinton,
President of the United States, shall be the truth, the whole
truth, and nothing but the truth, so help you God?
THE WITNESS. I do.
SENATOR DeWINE. The House managers may now begin your
questioning.
Mr. Manager ROGAN. Who is this former intern who swore
under oath to tell the truth, the whole truth, and nothing but
the truth? Monica Lewinsky is an intelligent, articulate young
woman who, until recently, held untarnished hope for tomorrow,
like any other recent college graduate. That hope was
drastically altered when she was subpoenaed in a lawsuit
against the President of the United States.
[Text of videotape presentation:]
But for the record, would you state your name once again, your full
name?
A. Yes. Monica Samille Lewinsky.
Q. And you're a--are you a resident of California?
A. I'm--I'm not sure exactly where I'm a resident now, but I--
that's where I'm living right now.
Q. Okay. You--did you grow up there in California?
A. Yes.
Q. I'm not going to go into all that, but I thought just a little
bit of background here.
You went to college where?
A. Lewis and Clark, in Portland, Oregon.
Q. And you majored in--majored in?
A. Psychology.
Q. Tell me about your work history, briefly, from the time you left
college until, let's say, you started as an intern at the White House.
A. Uh, I wasn't working from the time I--
Q. Okay. Did you--
A. I graduated college in May of '95.
Q. Did you work part time there in--in Oregon with a--with a
District Attorney--
A. Uh--
Q. --in his office somewhere?
A. During--I had an internship or a practicum when I was in school.
I had two practicums, and one was at the public defender's office and
the other was at the Southeast Mental Health Network.
Q. And those were in Portland?
A. Yes.
Q. Okay. What--you received a bachelor of science in psychology?
A. Correct.
Q. Okay. As a part of your duties at the Southeast Health Network,
what did you--what did you do in terms of working? Did you have direct
contact with people there, patients?
A. Yes, I did. Um, they referred to them as clients there and I
worked in what was called the Phoenix Club, which was a socialization
area for the clients to--really to just hang out and, um, sort of work
on their social skills. So I--
Q. Okay. After your work there, you obviously had occasion to come
to work at the White House. How did--how did you come to decide you
wanted to come to Washington, and in particular work at the White
House?
A. There were a few different factors. My mom's side of the family
had moved to Washington during my senior year of college and I wanted--
I wasn't ready to go to graduate school yet. So I wanted to get out of
Portland, and a friend of our family's had a grandson who had had an
internship at the White House and had thought it might be something I'd
enjoy doing.
Q. Had you ever worked around--in politics and campaigns or been
very active?
A. No.
Q. You had to go through the normal application process of
submitting a written application, references, and so forth to--to the
White House?
A. Yes.
Q. Did you do that while you were still in Oregon, or were you
already in D.C.?
A. No. The application process was while I was a senior in college
in Oregon.
Q. Had you ever been to Washington before?
A. Yes.
Q. Obviously, you were accepted, and you started work when?
A. July 10th, 1995.
That image, the image of a young woman, very much like a
family member or a friend that we might know, is an image that
the President did not want America to see when his
indiscretions with her became public. When that happened, the
President painted Monica Lewinsky in a very different and
callous light.
[Text of videotape presentation:]
WILLIAM JEFFERSON CLINTON: But 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, Ms. Lewinsky. I never told anybody to lie, not a single
time, never. These allegations are false, and I need to go back
to work for the American people. Thank you.
``That woman'' with that subtle description, the President
invited a waiting America to adopt a totally false impression
of Monica Lewinsky. That was not fair. Yet, with his close
aides, aides that he later testified he knew would be witnesses
before the grand jury, he went much further than a subtle
sneer. Hear the words of Sidney Blumenthal, assistant to the
President, recount how the President painted this vulnerable
young intern who made the tragic mistake of becoming involved
with him.
[Text of videotape presentation:]
Q. Did the President then give you his account of what happened
between him and Monica Lewinsky?
A. As I recall, he did.
Q. What did the President tell you?
A. He, uh--he spoke, uh, fairly rapidly, as I recall, at that point
and said that she had come on to him and made a demand for sex, that he
had rebuffed her, turned her down, and that she, uh, threatened him.
And, uh, he said that she said to him, uh, that she was called ``the
stalker'' by her peers and that she hated the term, and that she would
claim that they had had an affair whether they had or they hadn't, and
that she would tell people.
Q. Do you remember him also saying that the reason Monica Lewinsky
would tell people that is because then she wouldn't be known by her
peers as ``the stalker'' anymore?
A. Yes, that's right.
Q. Do you remember the President also saying that--and I'm
quoting--``I've gone down that road before. I've caused pain for a lot
of people. I'm not going to do that again''?
A. Yes. He told me that.
Q. And that was in the same conversation that you had with the
President?
A. Right, in--in that sequence.
Q. Can you describe for us the President's demeanor when he shared
this information with you?
A. Yes. He was, uh, very upset. I thought he was, a man in anguish.
He was a man in anguish. This was more than rakish
behavior. When the President used his aides as a conduit to
impart false information to a Federal grand jury in a criminal
investigation, his behavior graduated from the unconscionable
to the illegal.
Members of the Senate, your task is to determine who is
telling the truth and who is lying. As you weigh that option,
consider Mr. Blumenthal's conclusion drawn on the very subject.
[Text of videotape presentation:]
Q. That's where you start talking about the story that the
President told you. Knowing what you know now, do you believe
the President lied to you about his relationship with Ms.
Lewinsky?
A. I do.
To justify a vote of not guilty for the President, you
certainly have the right to reject Monica Lewinsky's testimony
as untruthful. However, I trust your sense of fairness will
dictate that you will listen to all of her testimony before you
dismiss it outright. If you believe her, you will see this
morning how the President wove the web of perjury and
obstruction of justice. You will see why he was impeached by
the House of Representatives, and you will see why a just and
proper verdict in this body would be to replace him as
President with Vice President Al Gore.
Consider, for example, Ms. Lewinsky's testimony regarding
witness tampering, one element of the obstruction of justice
charge against the President. The President stands charged with
illegally encouraging a witness in a Federal civil rights suit
brought against him to give perjured testimony in that
proceeding. Did he do this? Listen to Monica Lewinsky.
[Text of videotape presentation:]
We're at that point that we've got a telephone conversation
in the morning with you and the President, and he has among
other things mentioned to you that your name is on the Jones
witness list. He has also mentioned to you that perhaps you
could file an affidavit to avoid possible testifying in that
case. Is that right?
A. Correct.
Q. And he has also, I think, now at the point that we were
in our questioning, referenced the cover story that you and he
had had, that perhaps you could say that you were coming to my
office to deliver papers or to see Betty Currie; is that right?
A. Correct. It was from the entire relationship, that
story.
Q. Now, when he alluded to that cover story, was that
instantly familiar to you?
A. Yes.
Q. You knew what he was talking about?
A. Yes.
Q. And why was this familiar to you?
A. Because it was part of the pattern of the relationship.
It was part of the pattern of the relationship. During Ms.
Lewinsky's testimony earlier this week under oath pursuant to a
Senate deposition order, she further elaborated on this
critical piece of evidence.
[Text of videotape presentation:]
Q. Did you discuss anything else that night in terms of--I
would draw your attention to the cover stories. I have alluded
to that earlier, but, uh, did you talk about cover story that
night?
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 or bringing me
papers.
Q. I think you've testified that you're sure he said that
that night. You are sure he said that that night?
A. Yes.
Consider also Ms. Lewinsky's testimony regarding concealing
subpoenaed evidence; namely, the gifts he gave her. This is yet
another element in the obstruction of justice allegation
against the President. The President stands charged with
corruptly engaging in a scheme to conceal evidence that had
been subpoenaed in a Federal civil rights action brought
against him. Did he do this? Remember, on the morning of
December 28, 1997, a few days after Ms. Lewinsky received a
subpoena directing her to turn over any gifts she had received
from the President, the President met with Ms. Lewinsky. She
suggested to him that she could give the gifts he gave her to
Betty Currie, the President's personal secretary. The President
said that he would think about it. Listen to what Monica
Lewinsky said happened next.
[Text of videotape presentation:]
Did you later that day receive a call from Betty Currie?
A. Yes, I did.
Q. Tell us about that.
A. I received a call from--Betty, and to the best of my
memory, she said something like I understand you have something
for me or I know--I know I've testified to saying that--that I
remember her saying either I know you have something for me or
the President said you have something for me. And to me, it's
a--she said--I mean, this is not a direct quote, but the gist
of the conversation was that she was going to go visit her mom
in the hospital and she'd stop by and get whatever it was.
Q. Did you question Ms. Currie or ask her, what are you
talking about or what do you mean?
A. No.
Q. Why didn't you?
A. Because I assumed that it meant the gifts.
As you can see, the only way Betty Currie would have known
to come and get the gifts would have been for the President to
tell her to do so.
Finally, consider Ms. Lewinsky's testimony regarding the
President's help in securing a New York job for her to
encourage her silence, which is another element of the
obstruction of justice charge against him. The President is
charged with chasing a job for her in order to prevent her
truthful testimony. Did he do this? Remember that the President
learned on December 6, 1997, that Ms. Lewinsky was on the Paula
Jones witness list.
Listen to Monica Lewinsky.
[Text of videotape presentation:]
Q. Okay. Between your meeting with Mr. Jordan in early
November, and December the 11th when you met with Mr. Jordan
again, you did not feel that Mr. Jordan was doing much to help
you get a job; is that correct?
A. I hadn't seen any progress.
Q. Okay. After you met with Mr. Jordan in early December,
you began to interview in New York and were much more active in
your job search; correct?
A. Yes.
Q. In early January, you received a job offer from Revlon
with the help of Vernon Jordan; is that correct?
A. Yes.
Members of the Senate, these are but a few highlights of a
broad tapestry of corruption that Mr. Manager Hutchinson and I
will develop for you this morning through videotape testimony
and through other evidence.
Before we proceed to that, it is worth briefly recounting
the circumstances that elevated the President's initial
indiscretions to the level of impeachable offenses. The lesson
is not complex. It is quite elementary.
In all the things we do in life, life is about making
choices. Parents teach children that bad choices bring sorrow
and consequences. We do that because the failure to impose
meaningful consequences for bad choices brings about more bad
choices. That simple primer on life encapsulates the political
and personal legacy of Bill Clinton, his continuing pattern of
indulging all choices and accepting no consequences. This is
demonstrated by the actions he took leading to his impeachment
and trial before the Senate.
In May 1991, an incident allegedly occurred that led the
President to make a bad choice. According to Paula Jones, a
subordinate government employee, then-Governor Clinton made a
crude and unwelcome sexual advance on her. She later filed a
legal claim for sexual harassment against him.
In November 1995, the President made another bad choice. He
began a physical relationship with a 22-year-old White House
intern. He chose to begin a physical relationship with her.
This was not, as he told the grand jury, a relationship that
began as a friendship only to later blossom into intimacy. The
President impulsively began using her for his gratification the
very day he first spoke with her. Later, he made the bad choice
of continuing the relationship after Monica became a paid
Government employee.
An important note. As regrettable as his choice was here,
any accountability for the private aspect of this should not be
determined by the Congress of the United States. It should be
determined by his family. 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.
In December 1997, the President made a bad choice. In order to
avoid any possible legal accountability to Paula Jones, he
chose to destroy her lawful right to proceed with her case. And
this is how he did it: During the so-called discovery portion
of the Paula Jones case, Federal Judge Susan Wright ordered the
President to answer questions under oath about any intimate
relationship he may have had with subordinate female government
employees while he was Governor or President.
Why did Judge Susan Wright order him to answer these
questions? She did it because sexual harassers in the workplace
usually do not commit their offenses in the open. Typically
they get their victims alone and isolated. Predators know if
they can do this, one of two things generally will happen. Out
of fear and intimidation the victim will submit, or out of fear
and intimidation the victim will not submit but the victim will
not tell anybody about it.
There usually is no other way for a sexual harassment
victim to learn if there is evidence of a pattern of similar
conduct by a predator without being able to ask these kinds of
questions in a sexual harassment case. Without this
information, a harassment victim in the workplace generally
would not be able to prove her case. This is why courts
routinely order defendants to answer these kinds of questions
in almost every sexual harassment case in the country.
Now, President Clinton vigorously pursued legal arguments
and motions to avoid answering these questions about his sexual
relations with subordinate government employees. Yet, after
hearing his arguments, Judge Susan Wright ordered the President
to answer under oath these routine questions. And by the way,
Paula Jones also was required to provide truthful answers under
oath as part of the trial in the discovery process. Had Paula
Jones lied in providing such answers, she would have been
liable for criminal prosecution.
It was while the Paula Jones case was proceeding in the
summer of 1995, that a 22-year-old named Monica Lewinsky went
to work as an intern at the White House. Shortly thereafter, in
November 1995, the President began his physical relationship
with Monica Lewinsky. And this continued from 1995 until the
early part of 1997.
In order to shield him, Monica Lewinsky promised the
President that she would always deny the sexual nature of their
relationship. She said she would always protect him. The
President spoke words of approval and encouragement to this
pledge of secrecy. Monica and the President even agreed to
cover stories to disguise the true nature of their
relationship.
In April 1996, Monica was transferred, against her will,
from the White House job to a job at the Pentagon. After she
left employment at the White House, she frequently returned
there to continue her secret relationship with the President
under the guise of visiting Betty Currie, the President's
personal secretary.
After working at the Pentagon for over a year, Monica
became disheartened. Despite the President's promises to the
contrary, Monica was not returned to work at the White House.
In July 1997, she began looking for a job in New York. She
wasn't having any luck, despite the President's promise to help
her with this, too. By early November 1997, Monica became
frustrated with the lack of assistance.
Finally, Betty Currie arranged a meeting for Monica with
Vernon Jordan, one of the President's closest friends. They
sought to enlist his help in her New York job search. On
November 5, 1997, Monica met for 20 minutes with Mr. Jordan in
his office. No job referrals followed, no job interviews were
arranged, and there were no contacts from Mr. Jordan. In short,
Mr. Jordan made no effort to find Monica a job. Indeed, getting
her a job was so unimportant to him that Mr. Jordan later
testified that he didn't even remember meeting her on November
5.
Nothing happened on her job search through the month of
November, because Mr. Jordan was either gone or he simply
wasn't returning Monica's phone calls. All that changed on
December 5, 1997. That was the day Monica Lewinsky's name
appeared on the Paula Jones witness list.
Members of the Senate, this is how the whole thing started.
A lone woman in Arkansas felt that she had been wronged by the
President of the United States. The law said that she had a
right to have her claim heard in a court of law. At each stage
the President could have chosen to uphold the law. Instead, he
chose to obstruct justice and to commit perjury.
In his presentation, Mr. Manager Hutchinson will show you,
through videotape words of the key witnesses, how the President
used his position to obstruct justice as set forth in the
articles of impeachment. I will then return to make the same
showing respecting the allegations of perjury in the articles.
Throughout all of this, throughout this presentation, it is
important to keep in mind that we seek no congressional
punishment for a man who chose to cheat on his wife. However,
we have a legal obligation to expect constitutional
accountability for a President who chooses to cheat the law.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
Ladies and gentlemen of the Senate, I want to continue the
presentation that was commenced this morning by Mr. Rogan. Let
me continue with the path of obstruction. The obstruction, for
our purposes, began on December 5, 1997, when the witness list
came out in the civil rights case. It was faxed to the
President's lawyers. It was later given to the President.
At that point, the administration of justice became a
threat to the President of the United States. He determined
that the truth would be harmful to the case that he was trying
to defend, and the President made a decision to take whatever
steps were necessary to suppress the truth rather than to
uphold the law. The acts of obstruction included attempts to
improperly influence the testimony of witnesses in the case
against him, the procurement of a false affidavit in the case,
the willful concealment of evidence that was under subpoena,
and efforts to illegally influence the testimony of witnesses
before the Federal grand jury.
You have heard these areas of obstruction presented to you
before by managers on behalf of the House. Today it is
important that you hear this case from those who have testified
by deposition at your direction. And as you hear their
testimony, you will see that the President may have been the
only individual who had the complete picture. He had all the
facts, and he did not always share those facts with others. He
did not share those facts with Mr. Vernon Jordan, nor did he
share all the facts with Ms. Monica Lewinsky, until he
determined the time was right to do so.
For example, he knows that Ms. Lewinsky is a witness but
does not tell Ms. Lewinsky that fact until the time is right
and whenever the job search is proceeding. He asks Mr. Jordan
to help Ms. Lewinsky to get a job, but he does not tell Mr.
Jordan the essential facts, first of all, that Ms. Lewinsky is
a witness and, secondly, that there is a dangerous relationship
between them in which, if she testified, her testimony would be
harmful.
The President was obviously concerned about the truth of
the testimony of Ms. Lewinsky. It would have been harmful to
his interests in the case. As a result, the President
personally obstructed and directed the efforts of Mr. Jordan to
secure Ms. Lewinsky a job and urge the filing of the affidavit.
Now, what is the President's defense to this charge? Let's
listen.
[Text of videotape presentation:]
Q. Was your assistance to Ms. Lewinsky which you have described in
any way dependent upon her doing anything whatsoever in the Paula Jones
case?
A. No.
Now, you have heard that before. As you can see, Mr. Jordan
defends his actions and, by implication, defends the actions of
the President. You can weigh his intentions, but his intentions
are not the issue, because regardless of your view of Mr.
Jordan and his motivations, they are irrelevant. His view as to
whether there is a connection between the job and the testimony
is not an issue. It is not an issue as to whether Ms. Lewinsky
thought there was a connection between the job and the
testimony. It is not an issue as to whether Revlon thought
there was a connection between the job and the testimony.
There is only one issue, and that is whether the President
viewed that there was a connection between those two. And it is
the President who, under the law, had to have the corrupt
intent, and that is the question that you have to answer. And I
believe that the evidence will show that regardless of what
anyone else believed, he knew the direct connection.
Now, after each of you hears the testimony of Ms. Lewinsky
and Mr. Jordan, some of you will conclude that surely he had to
know that there was an inappropriate relationship between the
President and Ms. Lewinsky. And why do I say that? Well, Ms.
Lewinsky will testify that he made it clear--that she made it
clear to Mr. Jordan that there was that type of relationship.
At first, she sort of is careful about it, but then she just
ultimately tells him, as you will see from her testimony. But
Mr. Jordan also, for those who have listened to his testimony,
refers to mother wit, and his oft relied upon mother wit would
have told him as well, under the circumstances, that there is
something more going on.
If he knew about the relationship, he had to know that all
was not as it should be in what the President was asking him to
do. The President requested a job for Ms. Lewinsky at the same
time he was monitoring the filing of a false affidavit and
knowing she was a witness in a case against him: All indicated
that the job was not a favor for a young friend but it was a
favor for someone in high office that had to be accomplished in
order to assure the cooperation of a dangerous witness. That
evidence will show that it is the President who suggested the
assistance from Ms. Lewinsky and it is the President who
suggested the false affidavit.
Now, let's listen to the testimony, step by step, through
the job search, through the signing of the false affidavit, to
the encouragement to file the false affidavit on December 17,
to the discussion of the gifts on December 28, through the
tampering with the testimony of Betty Currie on two occasions,
and then with the President's aide when they were called before
the Federal grand jury, or prior to that.
First, let's go to the job benefit to Ms. Lewinsky. How
involved was the President in this activity? Let's first listen
to the President as to what he said when he testified under
oath in his deposition.
[Text of videotape presentation:]
Q. Do you know a man named Vernon Jordan?
A. I know him well.
Q. You have known him for a long time?
A. A long time.
Q. Has it ever been reported to you that he met with Monica
Lewinsky and talked about this case?
A. I knew that he met with her. I think Betty suggested he
met with her and she may have met with her. I thought that he
talked with her about something else. I thought he had given
her some advice about her move to New York. It seems like that
is what Betty said.
Rather vague. Attributes all of his knowledge about Vernon
Jordan, in reference to Ms. Lewinsky, to Betty, to Betty.
Let's go on and hear more of what the President has to say
in this connection.
[Text of videotape presentation:]
Q. Have you ever had a conversation with Vernon Jordan in
which Monica Lewinsky was mentioned?
A. I have. He told me that he thought he mentioned in
passing to me that he had talked to her and she had come to him
for advice about moving to New York.
Q. She had come to him for advice.
A. She had come to him for advice about moving to New York.
She had called him and asked if she could come see him, and
Betty, I think, maybe had said something to him about talking
to him and he had given her some advice about moving to New
York.
That's all I know about that.
That is all I know about that--diminished knowledge,
diminished responsibility.
But let's see what his good friend and confidant, Mr.
Jordan, says about what the President knew, when he knew it,
and to what extent he controlled this effort.
[Text of videotape presentation:]
Q. Now, is it true that your efforts to find a job for Ms. Lewinsky
that you referenced in that meeting with Mr. Gittis--were your efforts
carried out at the request of the President of the United States?
A. There is no question but that through Betty Currie, I was acting
on behalf of the President to get Ms. Lewinsky a job. I think that's
clear from my grand jury testimony.
Q. Okay. And I just want to make sure that that's firmly
established. And in reference to your previous grand jury testimony,
you indicated, I believe, on May 28th, 1998, at page 61, that ``She''--
referring to Betty Currie--``was the one that called me at the behest
of the President.''
A. That is correct, and I think, Congressman, if in fact the
President of the United States' secretary calls and asks for a request
that you try to do the best you can to make it happen.
Q. And you received that request as a request coming from the
President?
A. I--I interpreted it as a request from the President.
Q. And then, later on in June of '98 in the grand jury testimony at
page 45, did you not reference or testify that ``The President asked me
to get Monica Lewinsky a job''?
A. There was no--there was no question but that he asked me to help
and that he asked others to help. I think that is clear from
everybody's grand jury testimony.
Q. And just one more point in that regard. In the same grand jury
testimony, is it correct that you testified that ``He''--referring to
the President--``was the source of it coming to my attention in the
first place''?
A. I may--if that is--if you--if it's in the--
Q. It's at page 58 of the grand jury--
A. I stand on my grand jury testimony.
As Mr. Jordan testified, the President was a source of it
coming to his attention in the first place. Mr. Jordan, the
President's friend, testified that this was not a casual matter
for the President. He was interested, he was directing the show
and, as will be clear, he was consumed with preventing the
truth from coming out in the civil rights case.
But let's start back, for a moment, at the beginning. In
the packet provided to you, there is a time line, and you can
see again that there was the witness list that came out on
December 5. That triggered the action in this case. But as we
know, there was a meeting on November 5 between Ms. Lewinsky
and Mr. Jordan in Mr. Jordan's office. Ms. Lewinsky wanted a
job before the witness list came out, but not a whole lot was
happening in that regard.
Let's look at the testimony of Mr. Jordan in regard to this
November 5 meeting that he was first asked about, which he had
no recollection about. When the records were reproduced for
him, he had a recollection.
[Text of videotape presentation:]
Q. Well, regardless of whether you met with her in November or not,
the fact is you did not do anything in November to secure a job for Ms.
Lewinsky until your activities on December 11 of '97?
A. I think that's correct.
Q. And on December 11, I think you made some calls for Ms. Lewinsky
on that particular day?
A. I believe I did.
There will be a pattern developing, as you can see. Mr.
Jordan had no recollection of the November 5 meeting when he
originally testified before the grand jury. He had no
recollection whatsoever of that meeting. Basically, he said it
didn't happen.
The second time he testified before the grand jury, the
record was produced and it was substantiated. He recalls that.
The second thing you can see from this was the meeting was of
absolutely no consequence to him because this was not a
priority issue to him. He was not going to do anything. It
started happening, of course, when the witness list came out.
The President met with the attorneys with the witness list, and
on December 7 the President and Mr. Jordan meet. On December 8,
a meeting is set up by Ms. Lewinsky with Mr. Jordan for the
11th, and it was on the 11th when they met that things started
moving and calls were being made. Of course, that was done at
the direction of the President.
Look at Ms. Lewinsky's recollection of that same November 5
meeting.
[Text of videotape presentation:]
Q. . . . you did not feel that Mr. Jordan was doing much to help
you get a job; is that correct?
A. I hadn't seen any progress.
Q. Okay. After you met with Mr. Jordan in early December, you began
to interview in New York and were much more active in your job search;
correct?
A. Yes.
Q. In early January, you received a job offer from Revlon with the
help of Vernon Jordan; is that correct?
A. Yes.
Ms. Lewinsky, at this point, is at their mercy. She doesn't
know what the communication is, she doesn't know what the
President knows. The witness list has come in, and she hoped
things were moving, but she doesn't know it. Finally, they
start moving after the witness list comes in. On December 11,
she has the meeting at which things start moving.
Was this a typical referral? Each of you in this body have
had occasions where friends and acquaintances, at different
levels, or previous employees come to you and say: I am going
to be applying for a job with such and such a company. Will you
be a reference for me?
Sometimes they ask you to make a call to that company to
which they are applying for a job. This is not a typical
referral, as you will see from the testimony. A few days prior
to the December 11 meeting, Ms. Lewinsky sends up a wish list
of the companies she wanted to apply. Mr. Jordan quickly said,
``I'm not concerned about your wish list. I have the people I
want to deal with.'' He took control of the job search.
Let's listen to the testimony of Mr. Jordan as he
emphasizes that point.
[Text of videotape presentation:]
Q. Now, you mentioned that she had sent you a--I guess some people
refer to it--a wish list, or a list of jobs that she--
A. Not jobs--companies.
Q. --companies that she would be interested in seeking employment
with.
A. That's correct.
Q. And you looked at that, and you determined that you wanted to go
with your own list of friends and companies that you had better
contacts with.
A. I'm sure, Congressman, that you too have been in this business,
and you do know that you can only call people that you know or feel
comfortable in calling.
Q. Absolutely. No question about it. And let me just comment and
ask your response to this, but many times I will be listed as a
reference, and they can take that to any company. You might be listed
as a reference and the name ``Vernon Jordan'' would be a good reference
anywhere, would it not?
A. I would hope so.
Q. And so, even though it was a company that you might not have the
best contact with, you could have been helpful in that regard?
A. Well, the fact is I was running the job search, not Ms.
Lewinsky, and therefore, the companies that she brought or listed were
not of interest to me. I knew where I would need to call.
Q. And that is exactly the point, that you looked at getting Ms.
Lewinsky a job as an assignment rather than just something that you
were going to be a reference for.
A. I don't know whether I looked upon it as an assignment. Getting
jobs for people is not unusual for me, so I don't view it as an
assignment. I just view it as something that is part of what I do.
Q. You're acting in behalf of the President when you are trying to
get Ms. Lewinsky a job, and you were in control of the job search?
A. Yes.
The testimony is very clear as to Mr. Jordan running the
job search--in essence, a job placement on behalf of the
President.
Let's go again to that meeting of December 11 at which Ms.
Lewinsky goes, for the first time Mr. Jordan remembers, for
that meeting about the jobs. Ms. Lewinsky's view of this
meeting--again, Jordan's list--he was the one controlling the
job search. Also, you will see that Mr. Jordan acquires some
knowledge from Ms. Lewinsky as to the relationship.
[Text of videotape presentation:]
Q. Let's go forward another week or so to December the 11th and a
lunch that you had with Vernon Jordan, I believe, in his office.
A. Yes.
Q. How did--how was that meeting set up.
A. Through his secretary.
Q. Did you instigate that, or did he call through his secretary?
A. I don't remember.
Q. What was the purpose of that meeting?
A. Uh, it was to discuss my job situation.
Q. And what, what--how was that discussed?
A. Uh, Mr. Jordan gave me a list of three names and suggested that
I contact these people in a letter that I should cc him on, and that's
what I did.
Q. Did he ask you to copy him on the letters that you sent out?
A. Yes.
Q. During this meeting, did he make any comments about your status
as a friend of the President?
A. Yes.
Q. What--what did he say?
A. In one of his remarks, he said something about me being a friend
of the President.
Q. And did you respond?
A. Yes.
Q. How?
A. I said that I didn't, uh--I think I--my grand jury testimony, I
know I talked about this, so it's probably more accurate. My memory
right now is I said something about, uh, seeing him more as, uh, a man
than as a President, and I treated him accordingly.
Q. Did you express your frustration to Mr. Jordan with, uh, with
the President?
A. I expressed that sometimes I had frustrations with him, yes.
Q. And what was his response to you about, uh--after you talked
about the President?
A. Uh, he sort of jokingly said to me, You know what your problem
is, and don't deny it--you're in love with him. But it was a sort of
light-hearted nature.
Q. Did you--did you have a response to that?
A. I probably blushed or giggled or something.
That was on December 11. And I am sure Mr. Jordan and
others were starting to kick in, at this point, understanding
that there was something a little bit more involved in the
relationship between Ms. Lewinsky and the President.
But let's go to another aspect of the relationship on the
job search. Let's look how information is controlled. Mr.
Jordan learns ultimately on December 19 clearly that Ms.
Lewinsky is on the witness list because she presents a subpoena
to him. But whenever he pursues the jobs later on and maybe the
call to Mr. Perelman, he does not pass that information along
to the company. Does that make a difference to Revlon? You will
hear some reference to Mr. Halperin, who is one of the
executives at MacAndrews & Forbes, the parent company of
Revlon, and Mr. Perelman, who is the CEO of MacAndrews and
Forbes as well.
Let's listen to the testimony of Mr. Jordan on how
information is controlled.
[Text of videotape presentation:]
Q. Now, the second piece of information was the fact that
you knew and the President knew that Ms. Lewinsky was under
subpoena in the Jones case, and that information was not
provided to either Mr. Halperin or to Mr. Perelman; is that
correct?
A. That's correct.
Q. Now, I wanted to read you a question and answer of Mr.
Howard Gittis in his grand jury testimony of April 23, 1998.
The question was: ``Now, you had mentioned before that one
of the responsibilities of director is to have a fiduciary duty
to the company. If it was the case that Ms. Lewinsky had been
noticed as a witness in the Paula Jones case, and Vernon Jordan
had known that, is that something that you believe as a person
who works for MacAndrews & Forbes, is that something that you
believe that Mr. Jordan should have told you, or someone in the
company, not necessarily you, but someone in the company, when
you referred her for employment?''
His answer was ``Yes.''
Do you disagree with Mr. Gittis' conclusion that that was
important information for MacAndrews & Forbes?
A. I obviously didn't think it was important at the time,
and I didn't do it.
Why would Revlon want to know that Ms. Lewinsky was on a
witness list and under subpoena in a case that was adverse to
the President and the fact the President was really the one
that was wanting the job placement for Ms. Lewinsky? I think
everyone understands the extraordinary conflict, extraordinary
impropriety of that circumstance. As Mr. Jordan himself
testified previously, that whenever the subpoena was issued, it
changed the circumstances, and, yet, that information was not
provided to Revlon, and Mr. Gittis certainly would have thought
that it should have been.
So Revlon wanted to know for the same reason, really, that
Mr. Jordan would have liked to have had that information. But
when the President learned that Ms. Lewinsky was on the witness
list, he did not share that information with Mr. Jordan
himself.
So it is explosive information that the President did not
make available to him until the right time.
Let's listen to Mr. Jordan.
[Text of videotape presentation:]
Q. All right. And so there's two conversations after the witness
list came out--one that you had with the President on December 7th, and
then a subsequent conversation with him after you met with Ms. Lewinsky
on the 11th.
Now, in your subsequent conversation after the 11th, did you
discuss with the President of the United States Monica Lewinsky, and if
so, can you tell us what that discussion was?
A. If there was a discussion subsequent to Monica Lewinsky's visit
to me on December the 11th with the President of the United States, it
was about the job search.
Q. All right. And during that, did he indicate that he knew about
the fact that she had lost her job in the White House, and she wanted
to get a job in New York?
A. He was aware that--he was obviously aware that she had lost her
job in the White House, because she was working at the Pentagon. He was
also aware that she wanted to work in New York, in the private sector,
and understood that that is why she was having conversations with me.
There is no doubt about that.
Q. And he thanked you for helping her?
A. There's no question about that, either.
Q. And on either of these conversations that I've referenced that
you had with the President after the witness list came out, your
conversation on December 7th, and your conversation sometime after the
11th, did the President tell you that Ms. Monica Lewinsky was on the
witness list in the Jones case?
A. He did not.
The President knew it was not disclosed to Mr. Jordan,
according to his testimony. Mr. Jordan has to be reminded as to
how important this information was because he previously
testified that he expected to be told. It was significant
enough information that if Ms. Betty Currie knew that Ms.
Lewinsky was under subpoena that Betty Currie should tell him.
He expected the President to tell him. That was his
expectation, for natural reasons--that this is an extraordinary
conflict whenever the President knows there is a relationship.
She is an adverse witness. She is under subpoena, and provided
a job benefit. But he kept some of those details to himself
without disclosing.
Let's listen again to Mr. Jordan.
[Text of videotape presentation:]
Q. Precisely. She disclosed to you, of course, when she received
the subpoena, and that's information that you expected to know and to
be disclosed to you?
A. Fine.
Q. Is--
A. Yes. Fine.
Q. And in fact, if Ms. Currie--I'm talking about Betty Currie--if
she had known that Ms. Lewinsky was under subpoena, you would have
expected her to tell you that information as well since you were
seeking employment for Ms. Lewinsky?
A. Well, it would have been fine had she told me. I do make a
distinction between being a witness on the one hand and being a
defendant in some sort of criminal action on the other. She was a
witness in the civil case, and I don't believe witnesses in civil cases
don't have a right for--to employment.
Q. Okay. I refer you to page 95 of your grand jury testimony, in
which you said: ``I believe that had Ms. Currie known, that she would
have told me.''
And the next question: ``Let me ask the question again, though.
Would you have expected her to tell you if she knew?''
And do you recall your answer?
A. I don't.
Q. ``Yes, sure.''
A. I stand by that answer.
Q. And so it's your testimony that if Ms. Currie had known that Ms.
Lewinsky was under subpoena, you would have expected her to tell you
that information?
A. It would have been helpful.
Q. And likewise, would you have expected the President to tell you
if he had any reason to believe that Ms. Lewinsky would be called as a
witness in the Paula Jones case?
A. That would have been helpful, too.
Q. And that was your expectation, that he would have done that in
your conversations?
A. It--it would certainly have been helpful, but it would not have
changed my mind.
Q. Well, being helpful and that being your expectation is a little
bit different, and so I want to go back again to your testimony on
March 3, page 95, when the question is asked to you--question: ``If the
President had any reason to believe that Ms. Lewinsky could be called a
witness in the Paula Jones case, would you have expected him to tell
you that when you spoke with him between the 11th and the 19th about
her?''
And your answer: ``And I think he would have.''
A. My answer was yes in the grand jury testimony, and my answer is
yes today.
Q. All right. So it would have been helpful, and it was something
you would have expected?
A. Yes.
Q. And yet, according to your testimony, the President did not so
advise you of that fact in the conversations that he had with you on
December 7th and December 11th after he learned that Ms. Lewinsky was
on the witness list?
A. As I testified--
MR. KENDALL: Objection. Misstates the record with regard to
December 11th.
MR. HUTCHINSON: I--I will restate the question. I believe it
accurately reflects the record, and I'll ask the question.
BY MR. HUTCHINSON:
Q. And yet, according to your testimony, the President did not so
advise you of the fact that Ms. Lewinsky was on the witness list
despite the fact that he had conversations with you on two occasions,
on December 7th and December 11th?
A. I have no recollection of the President telling me about the
witness list.
Now, I am providing some long snippets because I want you
to see the testimony of the witnesses. I think it is very
important as you piece it together. You might say, well, there
is nothing explosive here. Whenever you are talking about
obstruction of justice, it ties together, it fits together.
Information is controlled and that is what we see in this
particular case.
Clearly, Mr. Jordan expected information because he knew
that something that the President should have shared, it was
not shared, according to Mr. Jordan's testimony. And for
natural reasons.
If you look at the exhibit that I passed out, on the time
line we have talked about when the witness list came out, on
the 7th, and on the 11th, or sometime thereafter, the President
and Mr. Jordan meet, and that information is not disclosed,
despite the fact that the President knows she is on the witness
list.
And now, let's go to the 17th, because now the President is
ready to share some additional information with Ms. Lewinsky.
Now that he has got the job search moving, perhaps she is in a
more receptive mood so that she can handle the news that she is
on the witness list. So let's listen to Ms. Lewinsky's
testimony as to this December 17, 2 a.m., telephone
conversation from the President of the United States.
[Text of videotape presentation:]
Q. Sometime back in December of 1997, in the morning of December
the 17th, did you receive a call from the President?
A. Yes.
Q. What was the purpose of that call? What did you talk about?
A. It was threefold--first, to tell me that Ms. Currie's brother
had been killed in a car accident; second, to tell me that my name was
on a witness list for the Paula Jones case; and thirdly, he mentioned
the Christmas present he had for me.
Q. This telephone call was somewhere in the early morning hours of
2 o'clock to 2:30.
A. Correct.
Q. Did it surprise you that he called you so late?
A. No.
Q. Was this your first notice of your name being on the Paula Jones
witness list?
A. Yes.
Q. I will try to ask sharper questions to avoid these objections.
At that point we got a telephone conversation in the morning with you
and the President. And he has, among other things, mentioned to you
that your name is on the Jones witness list. He has also mentioned to
you that perhaps you could file an affidavit to avoid possible
testifying in that case. Is that right.
A. Correct.
Q. And he's also, I think, now at the point that we were in our
questioning in reference to the cover story that you and he had, that
perhaps you could say that you were coming to my office to deliver
papers or to see Betty Currie. Is that right.
A. Correct. It was from the entire relationship. That's correct.
Q. Now, when he alluded to that cover story, was that instantly
familiar to you.
A. Yes.
Q. You knew what he was talking about.
A. Yes.
Q. And why was this familiar to you.
A. Because it was part of the pattern of the relationship.
* * * * *
Q. As I understand your testimony, too, the cover stories were
reiterated to you by the President that night on the telephone--
A. Correct.
Q. --and after he told you you would be a witness--or your name was
on the witness list, I should say?
A. Correct.
Q. And did you understand that since your name was on the witness
list that there would be a possibility that you could be subpoenaed to
testify in the Paula Jones case?
A. I think I understood that I could be subpoenaed, and there was a
possibility of testifying. I don't know if I necessarily thought it was
a subpoena to testify, but--
Q. Were you in fact subpoenaed to testify?
A. Yes.
Q. And that was what--
* * * * *
Q. Okay. Let me ask it. Did you understand in the context of the
telephone conversation with the President that early morning of
December the 17th--did you understand that you would deny your
relationship with the President to the Jones lawyers through use of
these cover stories?
A. From what I learned in that--oh, through those cover stories, I
don't know, but from what I learned in that conversation, I thought to
myself I knew I would deny the relationship.
Q. And you would deny the relationship to the Jones lawyers?
A. Yes, correct.
Q. Good.
Do you believe Monica Lewinsky? I believe her testimony is
credible. She is not trying to hammer the President. She is
trying to tell the truth as to her recollection of this 2 a.m.
call to her by the President of the United States on December
17.
The news is broken to her that she is on the witness list.
It puts it in a legal context. This is a 24-year-old ex-intern.
She might not have the legal sophistication of the President,
but the President certainly knows the legal consequences as to
his actions. What he is telling a witness in a case that is
adverse to him is that: You do not have to tell the truth. You
can use the cover stories that we used before. And that might
have been in a nonlegal context, but now we are in a different
arena and he says: Continue the same lies, even though you are
in a court of law. Continue the same pattern.
Ladies and gentlemen of the Senate, in my book that is
illegal, and I hate to say it, but that is obstruction of
justice by the President of the United States. And, if you
believe Ms. Lewinsky, then you have to accept that fact.
Otherwise, we are saying that it is all right for someone to
take a witness who is against them and say: Don't tell the
truth, don't worry about that, use the cover stories. You can
file an affidavit. You can avoid telling the truth.
Ladies and gentlemen, this is significant. It is important.
Do not diminish this, the impact of what happened on December
17, with the obstruction of justice on that occasion.
And, now, let's move on. That is December 17. We can move
on to December 19, and this is when the subpoena is actually
delivered to Ms. Lewinsky. She calls Vernon Jordan. She is in
tears. She is upset. Vernon Jordan says, ``Come over to my
office,'' and they have the discussion. And you are going to
hear Mr. Jordan's version of what happens on December 19. You
are going to hear Ms. Lewinsky's testimony as to what happens
in that office on December 19 as well.
Let's hear from Mr. Jordan.
[Text of videotape presentation:]
Q. And during this meeting, did she in fact show you the subpoena
that she had received in the Jones litigation?
A. I'm sure she showed me the subpoena.
Q. And the subpoena that was presented to you asked her to give a
deposition, is that correct?
A. As I recollect.
Q. But did it also ask Ms. Lewinsky or direct her to produce
certain documents and tangible objects?
A. I think, if I'm correct in my recollection, it asked that she
produce gifts.
Q. Gifts, and some of those gifts were specifically enumerated.
A. I don't remember that. I do remember gifts.
Q. And did you discuss any of the items requested under the
subpoena?
A. I did not. What I said to her was that she needed counsel.
Q. Now, just to help you in reference to your previous grand jury
testimony of March 3, '98--and if you would like to refer to that, page
121, but I believe it was your testimony that you asked her if there
had been any gifts after you looked at the subpoena.
A. I may have done that, and if I--if that's in my testimony, I
stand by it.
Q. And did she--from your conversation with her, did you determine
that in your opinion, there was a fascination on her part with the
President?
A. No question about that.
Q. And I think you previously described it that she had a ``thing''
for the President?
A. ``Thing,'' yes.
Q. And did you make any specific inquiry as to the nature of the
relationship that she had with the President?
A. Yes. At some point during that conversation, I asked her
directly if she had had sexual relationships with the President.
Q. And is this not an extraordinary question to ask a 24-year-old
intern, whether she had sexual relations with the President of the
United States?
A. Not if you see--not if you had witnessed her emotional state and
this ``thing,'' as I say. It was not.
Q. And her emotional state and what she expressed to you about her
feelings for the President is what prompted you to ask that question?
A. That, plus the question of whether or not the President at the
end of his term would leave the First Lady; and that was alarming and
stunning to me.
Q. And she related that question to you in that meeting on December
19th?
A. That's correct.
Q. Now, going back to the question in which you asked her if she
had had a sexual relationship with the President, what was her
response?
A. No.
Q. And I'm sure that that was not an idle question on your part,
and I presume that you needed to know the answer for some purpose.
A. I wanted to know the answer based on what I had seen in her
expression; obviously, based on the fact that this was a subpoena about
her relationship with the President.
Q. And so you felt like you needed to know the answer to that
question to determine how you were going to handle the situation?
A. No. I thought it was a factual data that I needed to know, and I
asked the question.
Q. And why did you need to know the answer to that question?
A. I am referring this lady, Ms. Lewinsky, to various companies for
jobs, and it seemed to me that it was important for me to know in that
process whether or not there had been something going on with the
President based on what I saw and based on what I heard.
Why was it important? Why was it important for Mr. Jordan
to know whether she was under subpoena? Why was it important
for Mr. Jordan to know whether there was a sexual relationship?
Why was it important? Because those would be incredible,
explosive ingredients in a circumstance that is fraught with
danger and impropriety, and he knows that and he asked the
right questions. But he doesn't listen to the right answer, nor
does he take the right steps, because he is acting at the
direction of the President.
As you will see, during his meeting on December 19, he was
keeping the President very closely informed. You will see in
your packet of materials that the call--as soon as he was
notified, Mr. Jordan was notified Ms. Lewinsky was under
subpoena, he tried to get ahold of the President, exhibit H-25,
a 3:51 call to the President. He didn't make contact at that
point. Ms. Lewinsky came into his office about 4:47. It was at
5:01 that he received a call from the President. So the
President actually called him at the same time Ms. Lewinsky was
in the office.
Let's look at Ms. Lewinsky's testimony as to her
recollection of that December 19 meeting with Mr. Jordan.
[Text of videotape presentation:]
Q. You went to see Mr. Jordan, and you were inside his office after
5 o'clock, and you did--is that correct?
A. Yes.
Q. Were--were you interrupted, in the office?
A. Yes. He received a phone call.
Q. And you testified that you didn't know who that was that called?
A. Correct.
Q. Did you excuse yourself?
A. Yes.
Q. What--after you came back in, what--what occurred? Did he tell
you who he had been talking to?
A. No.
Q. Okay. What happened next?
A. I know I've testified about this--
Q. Yes.
A. --so I stand by that testimony, and my recollection right now is
when I came back in the room, I think shortly after he had placed a
phone call to--to Mr. Carter's office, and told me to come to his
office at 10:30 Monday morning.
Q. Did you know who Mr. Carter was?
A. No.
Q. Did Mr. Jordan tell you who he was?
A. No--I don't remember.
Q. Did you understand he was going to be your attorney?
A. Yes.
Q. Did you express any concerns about the--the subpoena?
A. I think that happened before the phone call came.
Q. Okay, but did you express concerns about the subpoena?
A. Yes, yes.
Q. And what were those concerns?
A. In general, I think I was just concerned about being dragged
into this, and I was concerned because the subpoena had called for a
hatpin, that I turn over a hatpin, and that was an alarm to me.
Q. How--in what sense was it--in what sense was it an alarm to you?
A. The hatpin being on the subpoena was evidence to me that someone
had given that information to the Paula Jones people.
Q. What did Mr. Jordan say about the subpoena?
A. That it was standard.
Q. Did he have any--did he have any comment about the specificity
of the hatpin?
A. No.
Q. And did you--
A. He just kept telling me to calm down.
Q. Did you raise that concern with Mr. Jordan?
A. I don't remember if--if I've testified to it, then yes. If--I
don't remember right now.
Q. Did--would you have remembered then if he made any comment or
answer about the hatpin?
A. I mean, I think I would.
Q. And you don't remember?
A. I--I remember him saying something that it was--you know, calm
down, it's a standard subpoena or vanilla subpoena, something like
that.
What we see here is another example of compartmentalization
of information. During this meeting with Ms. Lewinsky, Mr.
Jordan receives a call from the President, presumably in
response to a call he had placed to the President, to tell him
Ms. Lewinsky had been subpoenaed. When the President calls, Mr.
Jordan takes that call in private. It is about Ms. Lewinsky, it
is about the subpoena, and that information is not shared with
Ms. Lewinsky. It is of interest to her.
Let's go on and hear some more about Ms. Lewinsky's version
of that conversation on December 19.
[Text of videotape presentation:]
Q. Did Mr. Jordan during that meeting make an inquiry about the
nature of the relationship between you and the President?
A. Yes, he did.
Q. What was that inquiry?
A. I don't remember the exact wording of the questions, but there
were two questions, and I think they were something like did you have
sex with the President or did he--and if--or did he ask for it or
some--something like that.
At this point, Ms. Lewinsky denies the relationship. She
thinks this is some type of a test. She is not sure the reason
for the question. She thinks he knows there is a little
confusion on that. Clearly, Mr. Jordan is not satisfied with
the answer. Mother wit is still around, as he indicated. But he
feels so concerned about it that that night he goes to see the
President, that we will later see, and asks that same question
of the President.
Now, let's talk to President Clinton and see what he
testifies about when this information was reported to him on
the subpoena. Let's listen to the testimony of President
Clinton.
[Text of videotape presentation:]
Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with subpoena in this case?
A. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person told me she was. I
want to be as accurate as I can.
Mr. KERREY addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Nebraska.
Mr. KERREY. Can I ask the manager to identify which
deposition this is?
Mr. Manager HUTCHINSON. This is the January deposition.
Mr. KERREY. Mr. Chief Justice, will the manager answer the
question and then show that again? This is the second time he
has shown a tape of the President without indicating which
deposition it was.
The CHIEF JUSTICE. Yes, I think it would be a good idea for
the manager if he will indicate what deposition it was, if you
are showing a deposition video of the President.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice, and I
thank the Senator for the question. It is a very fair question,
and I will try to be more clear in the identification of that.
This is the testimony of William Jefferson Clinton before the
deposition in the Jones case in January, January 17. I
believe--can we replay that? We are not going to replay that.
Let me go on.
The testimony that he gave at that time was, ``Did anyone
other than your attorneys ever tell you that Monica Lewinsky
had been served with a subpoena in that case,'' and the answer
was, ``I don't think so.'' Clearly, Mr. Jordan was keeping
close contact with the President, telling him every step of the
way, when the subpoena, the call, he is placing a call back--
the information is there, but, of course, the President tries
to diminish that.
Let's go on with some more testimony of Ms. Lewinsky.
[Text of videotape presentation:]
Q. Did you ask Mr. Jordan to call the President and advise
him of the subpoena?
A. I think so, yes. I asked him to inform the President. I
don't know if it was through telephone or not.
Q. And you did that because the President had asked you to
make sure you let Betty know that?
A. Well, sure. With Betty not being in the office, I
couldn't--there wasn't anyone else that I could call to get
through to him.
Q. Did Mr. Jordan say to you when he might see the
President next?
A. I believe he said he would see him that evening at a
holiday reception.
Mr. LOTT. Mr. Chief Justice, could I inquire, was the
manager thinking in terms of concluding this portion in 15
minutes, or do you want to take a break now?
Mr. Manager HUTCHINSON. This would be a good time for a
break.
recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
we take a 15-minute break at this time.
There being no objection, at 11:30 a.m., the Senate
recessed until 11:53 a.m.; whereupon, the Senate reassembled
when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. I was
going to take the opportunity to replay the videotape--in fact,
I will now--that I did not properly explain before. This is the
videotape of President Clinton and his testimony before the
civil deposition in the Jones case in January of 1997.
The CHIEF JUSTICE. When you say ``before,'' you actually
mean ``during,'' don't you? It is not before the deposition;
his testimony was during the deposition.
Mr. Manager HUTCHINSON. Mr. Chief Justice, you are
absolutely correct. Excuse me. Thank you.
[Text of videotape presentation:]
Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with subpoena in this case?
A. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person told me she was. I
want to be as accurate as I can.
And now let's go to what Mr. Jordan has to say in reference
to his contacts with the President when he learned of the
subpoena on December 19. Let's play that tape.
[Text of videotape presentation:]
Q. Now, Mr. Jordan, you indicated you had this conversation with
the President at about 5:01 p.m. out of the presence of Ms. Lewinsky.
Now, during this conversation with the President, what did you tell the
President in that conversation?
A. That Lewinsky--I'm sure I told him that Ms. Lewinsky was in my
office, in the reception area, that she had a subpoena and that I was
going to visit with her.
Q. And did you advise the President as well that you were going to
recommend Frank Carter as an attorney?
A. I may have.
Q. And why was it necessary to tell the President these facts?
A. I don't know why it was not unnecessary to tell him these facts.
I was keeping him informed about what was going on, and so I told him.
Q. Why did you make the judgment that you should call the President
and advise him of these facts?
A. I just thought he ought to know. He was interested it--he was
obviously interested in it--and I felt some responsibility to tell him,
and I did.
Q. All right. And what was the President's response?
A. He said thank you.
Q. Subsequent to your conversation with the President about Monica
Lewinsky, did you advise Ms. Lewinsky of this conversation with the
President?
A. I doubt it.
Once again, Mr. Jordan testifies that the President was
obviously interested in it. This was not a matter of casual
interest to him. It was a matter of deep concern that
jeopardized what he saw as his position in that lawsuit.
Now, let's go back again to the testimony of President
Clinton, this time before the grand jury in August of 1998.
[Playing of videotape.]
Mr. STEVENS. We cannot hear that monitor.
Mr. Manager HUTCHINSON. I will read the answer again:
. . . and Mr. Jordan informed you of that, is that right?
Answer: No, sir.
Now, in fairness to the President, he gives a longer answer
than that. I welcome anybody to read it, but it appears rather
convoluted. I think that you can see the contrast. There is no
question in Mr. Jordan's mind as to the details that he is
providing to the President on a regular basis. We are on
December 19. The subpoena is issued. He notifies the President.
He notifies the President how the job search is going. He
notifies the President that they got representation through Mr.
Carter. So the details are provided to the President and to
contrast that with the President's recollection as to did he
have any contact with Mr. Jordan, once again diminishing that.
Let's go back to December 19, back to the chart--to
December 19 when the subpoena is issued. Mr. Jordan meets with
Monica Lewinsky. He confronts her about the relationship. Now,
he goes that evening to see the President at the White House to
confront him personally about it to discuss this with him.
Let's hear from Mr. Jordan, and this is at the White House.
[Text of videotape presentation:]
Q. Now, would you describe your conversation with the President?
A. We were upstairs, uh, in the White House. Mrs. Jordan--we came
in by way of the Southwest Gate into the Diplomatic Entrance--we left
the car there. I took the elevator up to the residence, and Mrs. Jordan
went and visited at the party. And the President was already upstairs--
I had ascertained that from the usher--and I went up, and I raised with
him the whole question of Monica Lewinsky and asked him directly if he
had had sexual relations with Monica Lewinsky, and the President said,
``No, never.''
[Text of videotape presentation:]
A. Well, we had established that.
Q. All right. And did you tell him that you were concerned about
her fascination?
A. I did.
Q. And did you describe her as being emotional in your meeting that
day?
A. I did.
Q. And did you relate to the President that Ms. Lewinsky asked
about whether he was going to leave the First Lady at the end of the
term?
A. I did.
Q. And as--and then, you concluded that with the question as to
whether he had had sexual relations with Ms. Lewinsky?
A. And he said he had not, and I was satisfied--end of
conversation.
Q. Now, once again, just as I asked the question in reference to
Ms. Lewinsky, it appears to me that this is an extraordinary question
to ask the President of the United States. What led you to ask this
question to the President?
A. Well, first of all, I'm asking the question of my friend who
happens to be the President of the United States.
Q. And did you expect your friend, the President of the United
States, to give you a truthful answer?
A. I did.
Q. Did you rely upon the President's answer in your decision to
continue your efforts to seek Ms. Lewinsky a job?
A. I believed him, and I continued to do what I had been asked to
do.
Q. Well, my question was more did you rely upon the President's
answer in your decision to continue your efforts to seek Ms. Lewinsky a
job.
A. I did not rely on his answer. I was going to pursue the job in
any event. But I got the answer to the question that I had asked Ms.
Lewinsky earlier from her, and I got the answer from him that night as
to the sexual relationships, and he said no.
You will have to judge for yourselves as to why Mr. Jordan
felt compelled to ask the question. He is asking the right
questions. It was important information. If the President had
said, ``Yes; there is,'' then it would certainly have been
inappropriate to continue providing a job benefit for a witness
that you are seeking an affidavit from denying a relationship
when you know the relationship exists, when that witness would
be adverse to the President's interest who is seeking the job.
To some that might be convoluted, and perhaps I didn't
explain it as best it can be. But it looks to me like that is
why Mr. Jordan is asking the question because he knows it would
be inappropriate if that, in fact, did exist. He got an answer
``no.'' I don't know what was in his mind. But clearly you see
the conversations develop when Ms. Lewinsky made it totally
clear to him without any question that there was that
relationship. But still the job benefit was provided.
We are not going to have time to go through it all. But
sequentially, the next thing that happens is December 2 when
Ms. Lewinsky goes to Mr. Jordan's office where Mr. Jordan
drives her in the chauffeur-driven government vehicle to Mr.
Frank Carter's office where the attorney is that is provided
for Ms. Lewinsky. That is the only time that it happened in the
referral that Mr. Jordan took it upon himself to personally
deliver a client to Mr. Carter. During that conversation, Ms.
Lewinsky tells Mr. Jordan more of the details of their
relationship.
But let's go to another element of obstruction--on December
28, a few days after Christmas. You are very familiar with this
episode in which Ms. Lewinsky and the President meet. They
exchange gifts. The testimony in the Jones case is discussed.
There is concern expressed about the gifts. She asks the
President in essence, Should I get them out of my house? And
you will hear her answer. Her testimony is very clear on this.
That is what I would like you to listen to. There is no
ambiguity. There are no ``what-ifs.'' It is very clear. And
let's move now to the testimony of Ms. Lewinsky.
[Inaudible.]
Mr. LAUTENBERG. I can't hear.
Mr. GRAMM. Can we turn this up?
Mr. Manager HUTCHINSON. I don't think the question is
audible.
Well, that is a different--it's not as sophisticated a
sound collection system as the U.S. Senate used in the
depositions here, so I apologize for the fact that that was
inaudible but the question was asked of the President:
Q. After you gave her the gifts on December 28, did you
speak with your secretary, Ms. Currie, and ask her to pick up a
box of gifts that was some compilation of gifts that Ms.
Lewinsky would have?
His answer:
No, sir, I did not do that.
His denial and then the facts presented by Ms. Lewinsky and
the circumstantial evidence, the question was asked of Ms.
Lewinsky:
Q. Did the President ever tell you to turn over the gifts?
A. Not that I remember.
But when I say that she that testified unequivocally,
whenever Ms. Lewinsky was asked ``Did you later that day
receive a call from Ms. Currie,'' the answer was, ``Yes, I
did,'' and she goes ahead and explains it. There is no
hesitation. There is no question. But their memory is clear
that the call came from Betty Currie.
Now, how could Betty Currie know to go pick up the gifts? I
think you understand there is only one way that could have come
about, and that would be through a communication from the
President to her.
Now, let's go on down the path. After we see the meeting on
December 28, there was a meeting at the Hyatt on December 31.
We could play this video--I would like to--with Vernon Jordan
and with Ms. Lewinsky. This is a meeting at the Hyatt that Mr.
Jordan totally denied ever happened in his first few
testimonies before the grand jury. But in his most recent
testimony before the Senate, in the deposition, he was
confronted with receipts from the Hyatt, and the testimony of
Ms. Lewinsky which was clear, and the corroborating facts, and
he said yes, in fact, it did happen. Not only did he recall the
meeting, but then he recalled what was discussed, that yes, in
fact, notes were discussed there.
Ms. Lewinsky testifies that she raised the issue of other
evidence that would be possibly in her apartment, notes to the
President. According to her testimony, she was told that: You
need to get rid of those.
Now, Mr. Jordan totally denies that. But the point is,
there is more evidence at risk for the President. Mr. Jordan,
who is doing the work for the President, has this conversation
with Ms. Lewinsky that he earlier denied ever happened.
So, I think you look at credibility there. You believe Ms.
Lewinsky? If you accept the testimony of Ms. Lewinsky, then you
have more evidence that is at issue, and that is being urged to
be destroyed and not available for the truth-seeking endeavor
in the civil rights case. I think that is significant.
Now, you say that is not the President, that is Mr. Jordan.
You have to put this in context. It is Ms. Lewinsky who says
that she is talking to the President when she is talking to Mr.
Jordan--and I am paraphrasing that, but that is what she was
seeing--seeing Mr. Jordan as a conduit to the President.
Then we go on after the meeting in the Hyatt, we go into
January, where the job search continues. But it is tied
directly to the signing of the affidavit, which is false by its
nature.
If we look at the testimony of Mr. Jordan, in the January 5
timeframe where the affidavit is prepared and discussed with
Mr. Jordan:
[Text of videotape presentation:]
Q. Do you know why you would have been calling Mr. Carter
on 3 occasions the day before the affidavit was signed?
A. Yeah, my recollection is, is that I was exchanging or
sharing with Mr. Carter what had gone on, what she asked me to
do, what I refused to do, reaffirming to him that he was the
lawyer and I was not the lawyer. I mean, it would be so
presumptuous of me to try to advise Frank Carter as to how to
practice law.
Q. Would you have been relating to Mr. Carter your
conversation with Ms. Lewinsky?
A. I may have.
Q. And if Ms. Lewinsky expressed to you any concerns about
the affidavit would you have relayed those to Mr. Carter?
A. Yes.
Q. And if Mr. Carter was a good attorney that was concerned
about the economics of law practice he would have likely billed
Ms. Lewinsky for some of those telephone calls?
A. You have to talk to Mr. Carter about his billing.
So you have Mr. Jordan discussing the affidavit with both
Ms. Lewinsky and her attorney, Mr. Carter. And if you look at
the testimony of Mr. Carter, he talks about the fact that he
did bill some time for his conversations with Mr. Jordan.
Certainly they are matters of substance in relation to the
affidavit that was being discussed between the three: Ms.
Lewinsky, Mr. Jordan, and Mr. Carter.
Now, let's hear what Ms. Lewinsky has to say on the changes
that were made in the affidavit:
[Text of videotape presentation:]
Q. OK, have you had an opportunity to review the draft of
your affidavit?
A. I--yes.
Q. Do you have any comment or response?
A. I received it. I made the suggested changes. And I
believe I spoke with Mr. Jordan about the changes I wanted to
make.
Now, because of time, I am not going to be able to go
completely through all of their testimony but let me tell you
time sequentially what is happening here. This is the second
page of the time chart that you have.
January 5 and 6, the affidavit is prepared and discussed
with Mr. Jordan and with the President.
On the 7th, the affidavit is signed. You recall Mr. Jordan
lets the President know that the affidavit was signed. And he
says he was interested, he was obviously interested in this.
On January 8 the job came through, the day after the
affidavit was signed. And of course it had to come through, the
personal call of Mr. Jordan to Mr. Perelman to ``make it
happen--if it can happen.'' Once that job is secured, the
President is informed: Mission accomplished.
January 15, there are some inquiries from the news media
about the gifts that had been delivered to the White House.
This makes Betty Currie nervous enough that she has to go see
Mr. Jordan about it.
You go to the 17th; the President gives his deposition in
which that false affidavit is presented on behalf of Ms.
Lewinsky and the President's attorney.
And then the next day, after that deposition is given, you
go to January 18, where he is very concerned because he
mentions Betty Currie's name so many times.
We were not able--we did not ask for the deposition of
Betty Currie. We wish that we had had that opportunity. We
would like to call her here. But that is one of the most
critical and important elements of the structure in which the
truth is so critically clear, because it happened not just on
one day, because it happened on a couple of days.
We see on the 17th, the President is deposed. This is the
third chart that you have. The 18th, the President coaches
Betty Currie, going through the series of questions. On the
19th, there is this dramatic search for Ms. Lewinsky. On the
20th, the Washington Post story becomes known, because the
President's counselors get calls and the OIC investigation
becomes known.
On the 21st, at 12:30 a.m., the Post story appears on the
Internet. At 12:41, the President calls Bruce Lindsey. At 1:16
a.m, the Post story appears. The President calls Betty Currie
for 20 minutes, discusses the Post story. And then, according
to Betty Currie, on the 20th or the 21st, it was the second
incident of coaching that took place, where the President calls
her in and goes through that series of questions: I did nothing
wrong; she came on to me; we were never alone. So that was the
second time that it happened. And that, ladies and gentlemen of
the Senate, is another example of witness tampering: A known
witness clearly going to be testifying, a subordinate employee
who is called in and coached.
Now, the President says, ``I was trying to gain facts.''
You determine that. You are the ones who have to defend that
question as to whether, under common sense, the President was
gaining information on two separate occasions or whether he was
actually trying to tamper with the testimony of a witness.
The 21st, she is subpoenaed by the OIC. The 23rd, she is
added to the Jones witness list.
Now I want to play the last video clip that I am going to
move to on Ms. Lewinsky, some things that she said that are
different with regard to the President:
[Text of videotape presentation:]
Q. The President did not in that conversation on December 17 of
1997, or any other conversation for that matter, instruct you to tell
the truth; is that correct?
A. That's correct.
* * * * *
Q. But the--the pattern that you had with the President to conceal
this relationship, it was never questioned that, for instance, that
given day that he gave you gifts you were not going to surrender those
to the Jones attorneys because that would--
A. In my mind there is no reflection; no.
We have one more here we would like you to listen to.
[Text of videotape presentation:]
A. Sure, gosh, I think to me that if the President had not
said to Betty in letters us--cover--let us just say if we refer
to that which I am talking about in paragraph 4 of page 4, I
would have known to use that. So, to me, encouraging or asking
me to lie would have, you know if the President had said now
listen you better not say anything about this relationship, you
better not tell them the truth, you better not--for me the best
way to explain how I feel what happened was, you know, no one
asked or encouraged me to lie, but no one discouraged me
either.
It is very important to understand that we want you to know
very clearly that Ms. Lewinsky says that the President never
told her to lie. There is no question about that. There is no
dispute about that, either. I think you have to look at all the
context of this. What the President did suggest to her was to
use an affidavit to avoid truthful testimony, to stick with the
cover stories under legal context.
Is the issue here whether Ms. Lewinsky believed the
President was encouraging her to lie, that's what the President
was trying to do here? Or is the issue what the President was
trying to do? It is your determination. You have to make the
decision whether the President, in talking to a 24-year-old ex-
employee, whether he is encouraging her to come forward and to
tell the truth or, in a legal context, to use the old cover
stories, to lie, to use false affidavits, to avoid the truth
from coming out.
It is not Ms. Lewinsky's viewpoint that is important. It is
what the President intended. What did the President intend by
this conversation when he told her on December 17, ``Guess
what, bad news; you're a witness''. Then he proceeded to
suggest to her ways to avoid truthful testimony.
I really don't care what is in Ms. Lewinsky's mind at that
point. The critical issue is what is in the President's mind at
that point as to what he was intending. Was it an innocent
conversation, or was it a conversation with corrupt intent?
I believe that if you put all of this in context--from the
affidavit to the job search, to the coaching of Ms. Betty
Currie, to all of the other conversations with the aides--that
it was the President's intent to avoid the workings of the
administration of justice, to impede the flow of the truth in
the administration of justice for his own benefit, and that is
what obstruction of justice is about. That is what people go to
jail about, and that is what we are presenting to you as a
factual basis for this case.
I now yield to my fellow manager, Mr. Rogan.
recess
Mr. LOTT. Mr. Chief Justice, I think it would be
appropriate if we take a break at this time for lunch and
return at 1:15, and I so ask unanimous consent.
There being no objection, at 12:22 p.m., the Senate
recessed until 1:24 p.m.; whereupon, the Senate reassembled
when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
I believe we are ready to resume the presentation by the
House managers, and Mr. Manager Rogan is prepared to speak.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, Members of the
Senate, before the break, you had the opportunity to hear the
very able presentation from Mr. Manager Hutchinson relating to
the article of impeachment alleging obstruction of justice
against the President of the United States. I would like to use
my portion to discuss very briefly article I of the impeachment
resolution that alleges on August 17, 1998, the President
committed perjury before a Federal grand jury conducting a
criminal investigation. He did this in a number of ways,
embarking on a calculated effort to cover up illegal
obstruction of justice.
First, the President lied about statements he made to his
top aides regarding his relationship with Monica Lewinsky. This
is significant because the President admitted, under oath, that
he knew these aides were potential witnesses before a criminal
grand jury.
[Text of videotape presentation:]
A. And so I said to them things that were true about this
relationship. That I used--in the language I used, I said there was
nothing going on between us. That was true. I said I have not had sex
with her as I define it. That was true. And did I hope that I never had
to be here on this day giving this testimony, of course. But I also
didn't want to do anything to complicate this matter further.
So I said things that were true that may have been misleading, and
if they were, I have to take responsibility for it, and I am sorry.
Q. It may have been misleading, but you knew, though, after January
21 when the Post article broke and said that Judge Starr was looking
into this, you knew they might be witnesses, you knew they might be
called into the grand jury?
A. That's right.
Q. And you do recall denying any sexual relationship with Monica
Lewinsky to the following people: Harry Thomasson, Erskine Bowles,
Harold Ickes, Mr. Podesta, Mr. Blumenthal, Mr. Jordan, Miss Betty
Currie. Do you recall denying any sexual relation--
The question to the President: ``You knew they might be
called into a grand jury, didn't you?'' Answer by the
President: ``That's right.''
The President's testimony that he said things that were
misleading but true to his aides was perjury.
Just as the President predicted, several of his top aides
later were called to testify before the grand jury as to what
the President told them. When they testified before the grand
jury, they passed along the President's false account, just as
the President intended. The President's former chief of staff,
Erskine Bowles, and his current chief of staff, John Podesta,
went before the grand jury and testified that the President
told them he did not have sexual relations with Monica and he
did not ask anybody to lie.
Mr. Podesta had an additional meeting with the President 2
days after the story broke. Mr. Podesta testified that at that
meeting with the President, the President was extremely
explicit in saying he never had sex with her in any way
whatsoever and that he was not alone with her in the Oval
Office.
The most glaring example of the President using an aide as
a messenger of lies to the grand jury was his manipulation of
his Presidential assistant, Mr. Blumenthal. Mr. Blumenthal has
been assistant to the President since August of 1997. Mr.
Blumenthal testified that dealing with the media was one of his
responsibilities on January 21, 1998, the day the Monica
Lewinsky story broke. Mr. Blumenthal testified under oath that
once the story became public, he attended twice-a-day White
House strategy sessions called to deal with the political,
legal, and media impact of the Clinton scandals on the White
House.
In his deposition testimony taken just this week by
authority of the U.S. Senate, Mr. Blumenthal shared in chilling
detail the story of how the President responded to the public
discovery of his longstanding relationship with a young woman
who had shared tearful and emotional descriptions of her love
for him. Mr. Clinton responded not in love, not in friendship,
not even with a grain of concern for her well-being or
emotional stability. Instead, the President took the deep and
apparently unrequited emotional attachment Monica Lewinsky had
formed for him, and prepared to summarily take her life and
throw it on the ash heap.
The date is January 21, 1998. The Lewinsky scandal had just
broken in the newspapers that morning. Mr. Blumenthal met
initially with the First Lady, Mrs. Clinton, to get her take on
the growing political fire storm. Later that day, Mr.
Blumenthal is summoned to the Oval Office. Listen as Sidney
Blumenthal describes, step by step, the destructive mechanism
of the man who twice was elected President under the banner of
feeling other people's pain.
[Text of videotape presentation:]
Q. Mr. Blumenthal, specifically inviting your attention to January
21, 1998, you testified before the grand jury that on that date you
personally spoke to the President regarding the Monica Lewinsky matter,
correct?
A. Yes.
* * * * *
Q. You are familiar with the Washington Post story that broke that
day?
A. I am.
* * * * *
Q. The story stated that the Office of Independent Counsel was
investigating whether the President made false statements about his
relationship with Ms. Lewinsky in the Jones case?
A. Right.
Q. And also that the Office of Independent Counsel was
investigating whether the President obstructed justice in the Jones
case, is that your best recollection of what that story was about?
A. Yes.
* * * * *
Q. And you now remember that the President asked to speak with you?
A. Yes.
Q. Did you go to the Oval Office?
A. Yes.
Q. During that conversation were you alone with the President?
A. I was.
Q. Do you remember if the door was closed?
A. It was.
Q. When you met with the President, did you relate to him a
conversation you had with the First Lady earlier that day?
A. I did.
Q. What did you tell the President the First Lady told you earlier
that day?
A. I believe that I told him that the First Lady had called me
earlier in the day, and in the light of the story in the Post had told
me that the President had helped troubled people in the past and that
he had done it many times and that he was a compassionate person and
that he helped people also out of his religious conviction and that
part it was part of--his nature.
Q. And did she also tell you that one of the other reasons he
helped people was out of his personal temperament?
A. Yes. That is what I mean by that.
* * * * *
Q. Do you remember telling the President that the First Lady said
to you that she felt that with--in reference to the story that he was
being attacked for political motives?
A. I remember her saying that to me, yes.
Q. And you relayed that to the President?
A. I'm not sure I relayed that to the President. I may have just
relayed the gist of the conversation to him. I don't --I'm not sure
whether I relayed the entire conversation.
Mr. ROGAN: Inviting the Senators and counsel's attention to the
June 4th, 1998 testimony of Mr. Blumenthal, page 47, beginning at line
5.
By Mr. ROGAN:
Q. Mr. Blumenthal, let me just read a passage to you and tell me if
this helps to refresh your memory?
A. Mm-hmm.
Q. Reading at line 5, ``I was in my office, and the President asked
me to come to the Oval Office. I was seeing him frequently in this
period about the State of the Union and Blair's visit''--that was Prime
Minister Tony Blair, as an aide--correct?
A. That's right.
* * * * *
Q. Reading at line 7, ``So I went up to the Oval Office and I began
a discussion, and I said that I HAD received--that I had spoken to the
First Lady that day in the afternoon about the story that had broke in
the morning, and I related to the President my conversation with the
First Lady and the conversation went as follows. The First Lady said
that she was distressed that the President was being attacked, in her
view, for political motives for his ministry of a troubled person. She
said that the President ministers to troubled people all the time,''
and then it goes on to--
Does that help refresh your recollection with respect to what you
told the President the First Lady had said earlier?
A. Yes.
Q. And do you now remember that the First Lady had indicated to you
that she felt the President was being attacked for political motives?
A. Well, I remember she said that to me.
Q. And just getting us back on track, a few moments ago, I think
you--you shared with us that the First Lady said that the President
helped troubled people and he had done it many times in the past.
A. Yes.
Q. Do you remember testifying before the grand jury on that
subject, saying that the First Lady said that he has done this dozens,
if not hundreds, of times with people--
A. Yes.
Q. --with troubled people?
A. I recall that.
Q. After you related the conversation that you had with the First
Lady to the President, what do you remember saying to the President
next about the subject of Monica Lewinsky?
A. Well, I recall telling him that I understood he felt that way,
and that he did help people, but that he should stop trying to help
troubled people personally, that troubled people are troubled and that
they can get you in a lot of messes and that you had to cut yourself
off from it and you just had to do it. That's what I recall saying to
him.
Q. Do you also remember in that conversation saying to him, ``You
really need to not do that at this point, that you can't get near
anybody who is even remotely crazy. You're President''?
A. Yes. I think that was a little later in the conversation, but I
do recall saying that.
Q. When you told the President that he should avoid contact with
troubled people, what did the President say to you in response?
A. I'm trying to remember the sequence of it. He--he said that was
very difficult for him. He said he--he felt a need to help troubled
people, and it was hard for him to--to cut himself off from doing that.
Q. Do you remember him saying specifically, ``It's very difficult
for me to do that given how I am. I want to help people''?
A. I recall--I recall that.
Q. And when the President referred to helping people, did you
understand him in that conversation to be referring to Monica Lewinsky?
A. I think it included Monica Lewinsky, but also many others.
Q. Right, but it was your understanding that he was all--he was
specifically referring to Monica Lewinsky in that list of people that
he tried to help?
A. I believe that--that was implied.
Q. Do you remember being asked that question before the grand jury
and giving the answer, ``I understood that''?
A. If you could point it out to me, I'd be happy to see it.
* * * * *
By Mr. ROGAN: Inviting Senators' and counsels' attention to June
25th, 1998 grand jury, page 5, I believe it's at lines 6 through 8.
The WITNESS: Yes, I see that. Thank you.
By Mr. ROGAN:
Q. You recall that now?
A. Yes.
Following this conversation where Mr. Blumenthal told the
President about his conversation with the First Lady that day,
the President told Mr. Blumenthal about the President's own
conversation he had earlier that day with his pollster, Dick
Morris.
[Text of videotape presentation:]
Q. Mr. Blumenthal, did the President then relate a conversation he
had with Dick Morris to you?
A. He did.
Q. What was the substance of that conversation, as the President
related it to you?
A. He said that he had spoken to Dick Morris earlier that day, and
that Dick Morris had told him that if Nixon, Richard Nixon, had given a
nationally televised speech at the beginning of the Watergate affair,
acknowledging everything he had done wrong, he may well have survived
it, and that was the conversation that Dick Morris--that's what Dick
Morris said to the President.
Q. Did it sound to you like the President was suggesting perhaps he
would go on television and give a national speech?
A. Well, I don't know. I didn't know.
Q. When the President related the substance of his conversation
with Dick Morris to you, how did you respond to that?
A. I said to the President, ``Well, what have you done wrong?''
Q. Did he reply?
A. He did.
Q. What did he say?
A. He said, ``I haven't done anything wrong.''
Q. And what did you say to that response?
A. Well, I said, as I recall, ``That's one of the stupidest ideas I
ever heard. If you haven't done anything wrong, why would you do
that?''
After denying to Mr. Blumenthal any wrongdoing with Monica
Lewinsky, the President then struck the harshest of blows
against her. He launched a preemptive strike against her name
and her character to an aide who he expected would be, and very
shortly became, a witness before a Federal grand jury
investigation.
[Text of videotape presentation:]
Q. Did the President then give you his account of what happened
between him and Monica Lewinsky?
A. As I recall, he did.
Q. What did the President tell you?
A. He, uh--he spoke, uh, fairly rapidly, as I recall, at that point
and said that she had come on to him and made a demand for sex, that he
had rebuffed her, turned her down, and that she, uh, threatened him.
And, uh, he said that she said to him, uh, that she was called ``the
stalker'' by her peers and that she hated the term, and that she would
claim that they had had an affair whether they had or they hadn't, and
that she would tell people.
Q. Do you remember him also saying that the reason Monica Lewinsky
would tell people that is because then she wouldn't be known by her
peers as ``the stalker'' anymore?
A. Yes, that's right.
Q. Do you remember the President also saying that--and I'm
quoting--``I've gone down that road before. I've caused pain for a lot
of people. I'm not going to do that again''?
A. Yes. He told me that.
Q. And that was in the same conversation that you had with the
President?
A. Right, in--in that sequence.
Q. Can you describe for us the President's demeanor when he shared
this information with you?
A. Yes. He was, uh, very upset. I thought he was, a man in anguish.
Q. And at that point, did you repeat your earlier admonition to him
as far as not trying to help troubled people?
A. I did. I--I think that's when I told him that you can't get near
crazy people, uh, or troubled people. Uh, you're President; you just
have to separate yourself from this.
Q. And I'm not sure, based on your testimony, if you gave that
admonition to him once or twice. Let me--let me clarify for you why my
questioning suggested it was twice. In your grand jury testimony on
June the 4th, at page 49, beginning at line 25, you began the sentence
by saying, and I quote, ``And I repeated to the President''--
A. Right.
Q. --``that he really needed never to be near people who were''--
A. Right.
Q. --``troubled like this,'' and so forth. Do you remember now if
you--if that was correct? Did you find yourself in that conversation
having to repeat the admonition to him that you'd given earlier?
A. I'm sure I did. Uh, I felt--I felt that pretty strongly. He
shouldn't be involved with troubled people.
Q. Do you remember the President also saying something about being
like a character in a novel?
A. I do.
Q. What did he say?
A. Uh, he said to me, uh, that, uh, he felt like a character in a
novel. Uh, he felt like somebody, uh, surrounded by, uh, an oppressive
environment that was creating a lie about him. He said he felt like,
uh, the character in the novel Darkness at Noon.
Q. Did he also say he felt like he can't get the truth out?
A. Yes, I--I believe he said that.
Q. Politicians are always loathe to confess their ignorance,
particularly on videotape. I will do so. I'm unfamiliar with the novel
Darkness at Noon. Did you--do you have any familiarity with that, or
did you understand what the President meant by that?
A. I--I understood what he meant. I--I was familiar with the book.
Q. What--what did he mean by that, per your understanding?
A. Uh, the book is by Arthur Koestler, who was somebody who had
been a communist and had become disillusioned with communism. And it's
an anti-communist novel. It's about, uh, uh, the Stalinist purge trials
and somebody who was a loyal communist who then is put in one of
Stalin's prisons and held on trial and executed, uh, and it's about his
trial.
Q. Did you understand what the President was trying to communicate
when he related his situation to the character in that novel?
A. I think he felt that the world was against him.
Q. I thought only Members of Congress felt that way.
The President continued to pass along false information to
Mr. Blumenthal with regard to the substance of his relationship
with Monica Lewinsky.
[Text of videotape presentation:]
Mr. Blumenthal, did you ever ask the President if he was ever alone
with Monica Lewinsky?
A. I did.
Q. What was his response?
A. I asked him a number of questions that appeared in the press
that day. I asked him, uh, if he were alone, and he said that, uh, he
was within eyesight or earshot of someone when he was with her.
Q. What other questions do you remember asking him?
A. Uh, there was a story in the paper that, uh, there were recorded
messages, uh, left by him on her voice-mail and I asked him if that
were true.
Q. What did he say?
A. He said, uh, that it was, that, uh, he had called her.
Q. You had asked him about a press account that said there were
potentially a number of telephone messages left by the President for
Monica Lewinsky. And he relayed to you that he called her. Did he tell
you how many times he called her?
A. He--he did. He said he called once. He said he called when, uh,
Betty Currie's brother had died, to tell her that.
Q. And other than that one time that he shared that information
with you, he shared no other information respecting additional calls?
A. No.
Q. He never indicated to you that there were over 50 telephone
conversations between himself and Monica Lewinsky?
A. No.
Q. Based on your conversation with the President at that time,
would it have surprised you to know that there were over 50--there were
records of over 50 telephone conversations with Monica Lewinsky and the
President?
A. Would I have been surprised at that time?
Q. Yes.
A. Uh, I--to see those records and if he--I don't fully grasp the
question here. Could you--would I have been surprised?
Q. Based on the President's response to your question at that time,
would it have surprised you to have been told or to have later learned
that there were over 50 recorded--50 conversations between the
President and Ms. Lewinsky?
A. I did later learn that, uh, as the whole country did, uh, and I
was surprised.
Q. When the President told you that Monica Lewinsky threatened him,
did you ever feel compelled to report that information to the Secret
Service?
A. No.
Q. The FBI or any other law enforcement organization?
A. No.
Q. I'm assuming that a threat to the President from somebody in the
White House would normally send off alarm bells among staff.
A. It wouldn't--
MR. McDANIEL: Well, I'd like to object to the question, Senator.
There's no testimony that Mr. Blumenthal learned of a threat
contemporaneously with it being made by someone in the White House.
This is a threat that was relayed to him sometime afterwards by someone
who was no longer employed in the White House. So I think the question
doesn't relate to the testimony of this witness.
MR. ROGAN: Respectfully, I'm not sure what the legal basis of the
objection is. The evidence before us is that the President told the
witness that Monica Lewinsky threatened him.
[Senators Specter and Edwards conferring.]
SENATOR SPECTER: We've conferred and overrule the objection on the
ground that it calls for an answer; that, however the witness chooses
to answer it, was not a contemporaneous threat, or he thought it was
stale, or whatever he thinks. But the objection is overruled.
MR. ROGAN: Thank you.
BY MR. ROGAN:
Q. Let me--let me restate the question, if I may. Mr. Blumenthal,
would a threat--
SENATOR SPECTER: We withdraw the ruling.
[Laughter.]
MR. McDANIEL: I withdraw my objection, then.
[Laughter.]
MR. ROGAN: Senator Specter, the ruling is just fine by my light.
I'm just going to try to simplify the question for the witness'
benefit.
SENATOR SPECTER: We'll hold in abeyance a decision on whether to
reinstate the ruling.
MR. ROGAN: Thank you. Maybe I should just quit while I'm ahead and
have the question read back.
BY MR. ROGAN:
Q. Basically, Mr. Blumenthal, what I'm asking is, I mean, normally,
would a threat from somebody against the President in the White House
typically require some sort of report being made to a law enforcement
agency?
A. Uh, in the abstract, yes.
Q. This conversation that you had with the President on January the
21st, 1998, how did that conversation conclude?
A. Uh, I believe we, uh--well, I believe after that, I said to the
President that, uh--who was--seemed to me to be upset, that you needed
to find some sure footing and to be confident. And, uh, we went on, I
believe, to discuss the State of the Union.
Q. You went on to other business?
A. Yes, we went on to talk about public policy.
Q. When this conversation with the President concluded as it
related to Monica Lewinsky, what were your feelings toward the
President's statement?
A. Uh, well, they were complex. Uh, I believed him, uh, but I was
also, uh--I thought he was very upset. That troubled me. And I also was
troubled by his association with troubled people and thought this was
not a good story and thought he shouldn't be doing this.
Q. Do you remember also testifying before the grand jury that you
felt that the President's story was a very heartfelt story and that
``he was pouring out his heart, and I believed him''?
A. Yes, that's what I told the grand jury, I believe; right.
Q. That was--that was how you interpreted the President's story?
A. Yes, I did. He was, uh--he seemed--he seemed emotional.
Q. When the President told you he was helping Monica Lewinsky, did
he ever describe to you how he might be helping or ministering to her?
A. No.
Q. Did he ever describe how many times he may have tried to help or
minister to her?
A. No.
Q. Did he tell you how many times he visited with Monica Lewinsky?
A. No.
Q. Did he tell you how many times Monica Lewinsky visited him in
the Oval Office complex?
A. No.
Q. Did he tell you how many times he was alone with Monica
Lewinsky?
A. No.
Q. He never described to you any intimate physical activity he may
have had with Monica Lewinsky?
A. Oh, no.
Q. Did the President ever tell you that he gave any gifts to Monica
Lewinsky?
A. No.
Q. Did he tell you that Monica Lewinsky gave him any gifts?
A. No.
Q. Based on the President's story as he related on January 21st,
would it have surprised you to know at that time that there was a
repeated gift exchange between Monica Lewinsky and the President?
A. Well, I learned later about that, and I was surprised.
Q. The President never told you that he engaged in occasional
sexual banter with her on the telephone?
A. No.
Q. He never told you about any cover stories that he and Monica
Lewinsky may have developed to disguise a relationship?
A. No.
Q. He never suggested to you that there might be some physical
evidence pointing to a physical relationship between he--between
himself and Monica Lewinsky?
A. No.
Q. Did the President ever discuss his grand jury--or strike that.
Did the President ever discuss his deposition testimony with you in
the Paula Jones case on that date?
A. Oh, no.
Q. Did he ever tell you that he denied under oath in his Paula
Jones deposition that he had an affair with Monica Lewinsky?
A. No.
Q. Did the President ever tell you that he ministered to anyone
else who then made a sexual advance toward him?
A. No.
One of the things that the President's counsel has
continuously urged upon this body, as they did over in the
House of Representatives, is to look at the President's state
of mind in determining whether, in fact, he committed the crime
of perjury. We hope that you will do that. Because nowhere is
the President's state of mind more evident than it is in the
manner in which he dealt with Sidney Blumenthal at this point.
Remember, the date of this conversation that Sidney
Blumenthal just related to you was January 21, the day the
Monica Lewinsky story broke. About a month later, Sidney
Blumenthal was called to testify as a witness before the grand
jury. That was the first time.
Five months later or 4 months later Sidney Blumenthal was
called back to testify to the grand jury--not once, but two
more times. From January 21 until the end of June 1998, the
President had almost 6 months in which to tell Sidney
Blumenthal, after he was subpoenaed, but before he testified,
not to tell the grand jury information that was false. The
President had the opportunity to not use his aide as a conduit
of false information. Listen to what Sidney Blumenthal said the
President failed to tell him.
[Text of videotape presentation:]
Q. After you were subpoenaed to testify but before you testified
before the Federal grand jury, did the President ever recant his
earlier statements to you about Monica Lewinsky?
A. No.
Q. After you were subpoenaed but before you testified before the
federal grand jury, did the President ever say that he did not want you
to mislead the grand jury with a false statement?
A. No. We didn't have any subsequent conversation about this
matter.
Q. So it would be fair also to say that after you were subpoenaed
but before you testified before the Federal grand jury, the President
never told you that he was not being truthful with you in that January
21st conversation about Monica Lewinsky?
A. Uh, he never spoke to me about that at all.
Q. The President never instructed you before your testimony before
the grand jury not to relay his false account of his relationship with
Monica Lewinsky?
A. We--we didn't speak about anything.
The President of the United States used a special
assistant, one of his aides, as a conduit to go before a
Federal grand jury and present false and misleading information
and precluded the grand jury from being able to make an honest
determination in their investigation. He obstructed justice
when he did it, and when he denied that testimony he committed
the offense of perjury.
In response to a question from Mr. Manager Graham, Mr.
Blumenthal candidly addressed the President's claim under oath
that he was truthful with his aides that he knew would be
future grand jury witnesses:
[Text of videotape presentation:]
Q. . . . Knowing what you know now, do you believe the
President lied to you about his relationship with Ms. Lewinsky?
A. I do.
Q. I appreciate your honesty . . . .
* * * * *
Q. . . . Is it a fair statement, given your previous
testimony concerning your 30-minute conversation, that the
President was trying to portray himself as a victim of a
relationship with Monica Lewinsky?
A. I think that's the import of his whole story.
In an earlier presentation, the President's attorney, Mr.
Ruff, said that the very same denial the President made to his
family and his friends was the same one he made to the American
people.
Mr. Ruff said:
Having made the announcement to the whole country, it is
simply absurd, I suggest to you, to believe that he was somehow
attempting corruptly to influence his senior staff when he told
them virtually the same thing at the same time.
Members of the Senate, Mr. Ruff's conclusion is wrong
because his premise is wrong. The President didn't tell the
American public and his aides the same thing, nor did he make
the very same denial. On the contrary, the President went out
of his way with his aides to make explicit denials, coupled
with character assassination against Monica Lewinsky. Why the
distinction? Because the American public was not destined to be
subpoenaed as a witness before the grand jury and the
President's aides were.
Members of the Senate, our time draws short. The record is
replete with other examples which I have addressed and Mr.
Manager Hutchinson has addressed dealing with the President's
perjuries in other areas, for instance, in the Paula Jones
deposition where he emphatically denied having a relationship
with Monica Lewinsky that we now know to be true, a
relationship that a Federal judge ordered him to discuss with
Paula Jones' attorneys because it was relevant information in
the sexual civil harassment lawsuit.
The President's perjury is with respect to Betty Currie and
using Betty Currie as somebody to be brought into the Oval
Office so that he could coach her as a witness and doing
everything he could in his own testimony to ensure that the
Jones attorney would subpoena her as a witness, to once again
use a White House aide as a conduit of false information before
the grand jury.
I don't feel the need to have to go over this ground with
you any further. In my final couple of minutes, before I
reserve time, I do want to raise one last point, because I
think it is a valid one and it, perhaps, in the long run, is
the most important point that this body should consider in
coming to their verdict.
We have heard an awful lot throughout this entire episode
about the idea of proportionality of punishment. We have also
heard that lying about sex somehow minimizes the perjury
because everybody does it. Many people in everyday life under
the stress of ordinary relations may well lie about personal
matters when confronted with embarrassing situations. But, no,
everybody doesn't commit perjury under oath in a court
proceeding, having been ordered by a Federal judge to answer
questions. And if they did so, they generally don't expect to
keep their job or their liberty if they get caught.
The dispensation this President wants for himself is not
the same dispensation he grants as head of the executive branch
to ordinary Americans when they lie about sex under oath. Bill
Clinton wants it both ways. The question before this body is
whether you are going to give it to him.
During our committee hearings, we learned the Clinton
administration had no shyness in prosecuting other people for
lying under oath about consensual sex in civil cases, even when
the underlying civil case was dismissed. For instance, Dr.
Barbara Battalino was an attorney and a VA doctor when she
began a relationship with one of her counseling patients at a
VA hospital. On a single occasion, she performed an
inappropriate sexual act with him in her office. The patient
later sued the Veterans Administration for, among other things,
sexual harassment.
During a deposition in this civil lawsuit, Dr. Battalino
was asked if anything of a sexual nature took place in her
office with the patient. Fearing embarrassment, disgrace and
the loss of her job, Dr. Battalino answered, ``No.'' Later, she
learned the patient had tape recorded conversations which
proved she lied about sex under oath.
Even though the patient's harassment case was eventually
dismissed, the Clinton Justice Department prosecuted Dr.
Battalino. She lost her medical license. She lost her right to
practice law. She was fired from her job. She later agreed to a
plea bargain. She was fined $3,500 and sentenced to 6 months of
imprisonment under electronic monitoring.
Listen to the words of Dr. Battalino as she testified
before the House Judiciary Committee, and then explain to her
the theory of proportionality, if you can.
[Text of videotape presentation:]
Dr. Battalino, your case intrigues me.
I want to make sure I understand the factual circumstances. You
lied about a one-time act of consensual sex with someone on Federal
property; is that correct?
Ms. Battalino. Yes, absolutely, correct.
Mr. Rogan. This act of perjury was in a civil lawsuit, not in a
criminal case?
Ms. Battalino. That's also correct.
Mr. Rogan. And, in fact, the civil case eventually was dismissed?
Ms. Battalino. Correct.
Mr. Rogan. Yet despite the dismissal, you were prosecuted by the
Clinton Justice Department for this act of perjury; is that correct?
Ms. Battalino. That is correct.
Mr. Rogan. I want to know, Dr. Battalino: During your ordeal,
during your prosecution, did anybody from the White House, from the
Clinton Justice Department, any Members of Congress, or academics from
respected universities every show up at your trial and suggest that you
should be treated with leniency because ``everybody lies about sex''?
Ms. Battalino. No, sir.
Mr. Rogan. Did anybody ever come forward from the White House or
from the Clinton Justice Department and urge leniency for you because
your perjury was only in a civil case?
Ms. Battalino. No.
Mr. Rogan. Did they argue for leniency because the civil case in
which you committed perjury was ultimately dismissed?
Ms. Battalino. No.
Mr. Rogan. Did anybody from the White House ever say that leniency
should be granted to you because you otherwise did your job very well?
Ms. Battalino. No.
Mr. Rogan. Did anybody ever come forward from Congress to suggest
that you were the victim of an overzealous or sex-obsessed prosecutor?
Ms. Battalino. No.
Mr. Rogan. Now, according to the New York Times, they report that
you lied when your lawyer asked you at a deposition whether ``anything
of a sexual nature'' occurred; is that correct?
Ms. Battalino. Yes, that is correct.
Mr. Rogan. Did anybody from Congress or from the White House come
forward to defend you, saying that that phrase was ambiguous or it all
depended on what the word ``anything'' meant?
Ms. Battalino. No, sir. May I just--I am not sure it was my lawyer
that asked the question, but that is the exact question that I was
asked.
Mr. Rogan. The question that was asked that caused your prosecution
for perjury.
Ms. Battalino. That's correct.
Mr. Rogan. No one ever argued that that phrase itself was
ambiguous, did they?
Ms. Battalino. No.
Ms. Waters. Will the gentleman yield?
Mr. Rogan. Regrettably, my time is limited and I will not yield for
that reason.
Now, Doctor, you lost two licenses. You lost a law license.
Ms. Battalino. Well, I have a law degree. I was not a member of any
bar.
Mr. Rogan. Your conviction precludes you from practicing law?
Ms. Battalino. That is correct, sir.
Mr. Rogan. You also had a medical degree and license.
Ms. Battalino. That is correct.
Mr. Rogan. You lost your medical license?
Ms. Battalino. Yes. I am no longer permitted to practice medicine
either.
Mr. Rogan. Did anybody from either the White House or from Congress
come forward during your prosecution, or during your sentencing, and
suggest that rather than you suffer the severe punishment of no longer
being able to practice your profession, perhaps you should simply just
receive some sort of rebuke or censure?
Ms. Battalino. No one came to my aid or defense, no.
Mr. Rogan. Nobody from the Clinton Justice Department suggested
that during your sentencing hearing?
Ms. Battalino. No.
Mr. Rogan. Has anybody come forward from the White House to suggest
to you that in light of circumstances, as we now see them unfolding,
you should be pardoned for your offense?
Ms. Battalino. Nobody has come no. . . .
That is how the Clinton administration defines
proportionality in punishment.
Mr. Chief Justice, we reserve the remainder of our time.
The CHIEF JUSTICE. Very well. The Chair recognizes the
majority leader.
Mr. LOTT. Mr. Chief Justice, I believe now we are prepared
to hear from White House counsel for up to 3 hours. How much
time is remaining for the House managers?
The CHIEF JUSTICE. Thirty-one minutes.
Mr. LOTT. Does the Chief Justice suggest we take a brief
break here?
The CHIEF JUSTICE. No, let's keep going.
Mr. LOTT. All right, sir.
[Laughter.]
Mr. LOTT. I guess that settles that.
[Laughter.]
The CHIEF JUSTICE. The Chair recognizes Counsel Seligman.
Ms. Counsel SELIGMAN. Mr. Chief Justice, ladies and
gentlemen of the Senate, the House managers have suggested to
you that the deposition of Ms. Lewinsky helped their case. The
opposite is true. Ms. Lewinsky undermined critical aspects of
the House managers' obstruction case.
As those of you who watched the entire video are well
aware, the managers have cleverly snipped here and there in an
effort to present their story even if, as a result, the story
they are telling you is not Ms. Lewinsky's story. They have
distorted, they have omitted, and they have created a
profoundly erroneous impression.
So let's look at the facts.
In her deposition this week, Ms. Lewinsky reaffirmed her
previous testimony and provided extremely useful supplements to
that testimony. We asked her no questions. Why? Because there
was no need. Her testimony exonerated the President. In four
areas in particular, what she said demonstrates that the
allegations in the articles cannot stand.
First, she refuted the allegations in article II, subpart
(1), with respect to alleged efforts to obstruct and influence
Ms. Lewinsky's affidavit.
Second, she contradicted the allegations in article II,
subpart (2), with respect to alleged efforts to influence Ms.
Lewinsky's testimony as distinct from her affidavit.
Third, she undermined the allegations in article II,
subpart (3), with respect to alleged efforts to conceal gifts.
And fourth, she rebutted the allegations in article II,
subpart (4), with respect to Ms. Lewinsky's job search.
I will discuss each briefly.
Let's begin with the December 17 phone call between the
President and Ms. Lewinsky, which is at the heart of article
II's first two subparts. The managers have consistently
exaggerated the facts, the impact, and the import of this
conversation. They have relentlessly argued that you should
draw inferences and conclusions that are not supported by the
evidence. Ms. Lewinsky's testimony this week should put an end
to these inflated claims about that call.
Article II charges, in subpart (1), that the President:
``On or about December 17, 1997 . . . 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.''
``On or about December 17.'' In other words, the allegation
is firmly grounded in the December 17 phone call. That is where
the House of Representatives charged the deed was done. That is
the single event on which the managers base the first
obstruction of justice charge.
Indeed, Mr. Manager McCollum made this point emphatically
before the Senate. He claimed:
In this context, the evidence is compelling that the
President committed both the crimes of obstruction of justice
and witness tampering right then and there on December 17th.
He went on:
Now, Monica Lewinsky's testimony is so clear about this
that the President's lawyers probably won't spend a lot of time
with you on this; they didn't in the Judiciary Committee. I
could be wrong, and they probably will just to show me I am
wrong.
Well, Mr. McCollum was wrong in one respect. We do plan to
spend time on that call. But he was absolutely right in another
respect. He was correct that Ms. Lewinsky's testimony is so
clear on this issue. It is so clear it exonerates the
President.
The managers asked this body to permit the deposition and
later the live testimony of Ms. Lewinsky to complete their
proof. As Mr. Manager Bryant stated:
An appropriate examination--and an appropriate cross-
examination, I might add; let's don't limit the White House
attorneys here--of Ms. Lewinsky on the factual disputes of the
affidavit and their cover story, wouldn't that be nice to hear?
Well, the managers got their examination of Ms. Lewinsky
about the December 17 phone call, and it defeated the charge.
It showed that she and the President did not discuss the
content of an affidavit--never ever. Again, the managers ask
you to convict the President and remove him from office for
what turns out to be his silence. No discussion of content.
Let's listen to the testimony of Monica Lewinsky about that
December 17 phone call. It is critically important. And we are
showing it to you unvarnished, not in snippets, because the
snippets you have seen are terribly misleading. The tape you
will hear establishes beyond doubt that she and the President
did not discuss the content of the affidavit in that call, or
ever. It establishes beyond doubt that what happened is not
obstruction of justice.
[Text of videotape presentation:]
Q. Sometime back in December of 1997, in the morning of December
the 17th, did you receive a call from the President?
A. Yes.
Q. What was the purpose of that call? What did you talk about?
A. It was threefold--first, to tell me that Ms. Currie's brother
had been killed in a car accident; second, to tell me that my name was
on a witness list for the Paula Jones case; and thirdly, he mentioned
the Christmas present he had for me.
Q. This telephone call was somewhere in the early morning hours of
2 o'clock to 2:30.
A. Correct.
Q. Did it surprise you that he called you so late?
A. No.
Q. Was this your first notice of your name being on the Paula Jones
witness list?
A. Yes.
Q. I realize he, he commented about some other things, but I do
want to focus on the witness list.
A. Okay.
Q. Did he say anything to you about how he felt concerning this
witness list?
A. He said it broke his heart that, well, that my name was on the
witness list.
Can I take a break, please? I'm sorry.
SENATOR DeWINE: Sure, sure.
* * * * *
BY MR. BRYANT:
Q. Did--did we get your response? We were talking about the
discussion you were having with the President over the telephone, early
morning of the December 17th phone call, and he had, uh, mentioned that
it broke his heart that you were on that list.
A. Correct.
Q. And I think you were about to comment on that further, and then
you need a break.
A. No.
Q. No.
A. I just wanted to be able to focus--I know this is an important
date, so I felt I need a few moments to be able to focus on it.
Q. And you're comfortable now with that, with your--you are ready
to talk about that?
A. Comfortable, I don't know, but I'm ready to talk about.
Q. Well, I mean comfortable that you can focus on it.
A. Yes, sir.
Q. Good. Now, with this discussion of the fact that your name
appeared as a witness, had you--had you been asleep that night when the
phone rang?
A. Yes.
Q. So were you wide awake by this point? It's the President calling
you, so I guess you're--you wake up.
A. I wouldn't say wide awake.
Q. He expressed to you that your name--you know, again, you talked
about some other things--but he told you your name was on the list.
A. Correct.
Q. What was your reaction to that?
A. I was scared.
Q. What other discussion did you have in regard to the fact that
your name was on the list? You were scared; he was disappointed, or it
broke his heart. What other discussion did you have?
A. Uh, I believe he said that, uh--and these are not necessarily
direct quotes, but to the best of my memory, that he said something
about that, uh, just because my name was on the list didn't necessarily
mean I'd be subpoenaed; and at some point, I asked him what I should do
if I received a subpoena. He said I should, uh, I should let Ms. Currie
know. Uh--
Q. Did he say anything about an affidavit?
A. Yes.
Q. What did he say?
A. He said that, uh, that I could possibly file an affidavit if I--
if I were subpoenaed, that I could possibly file an affidavit maybe to
avoid being deposed.
Q. How did he tell you you would avoid being deposed by filing an
affidavit?
A. I don't think he did.
Q. You just accepted that statement?
A. [Nodding head.]
Q. Yes?
A. Yes, yes. Sorry.
Q. Are you, uh--strike that. Did he make any representation to you
about what you could say in that affidavit or--
A. No.
Q. What did you understand you would be saying in that affidavit to
avoid testifying?
A. Uh, I believe I've testified to this in the grand jury. To the
best of my recollection, it was, uh--to my mind came--it was a range of
things. I mean, it could either be, uh, something innocuous or could go
as far as having to deny the relationship. Not being a lawyer nor
having gone to law school, I thought it could be anything.
Q. Did he at that point suggest one version or the other version?
A. No. I didn't even mention that, so there, there wasn't a further
discussion--there was no discussion of what would be in an affidavit.
Q. When you say, uh, it would be--it could have been something
where the relationship was denied, what was your thinking at that
point?
A. I--I--I think I don't understand what you're asking me. I'm
sorry.
Q. Well, based on prior relations with the President, the concocted
stories and those things like that, did this come to mind? Was there
some discussion about that, or did it come to your mind about these
stories--the cover stories?
A. Not in connection with the--not in connection with the
affidavit.
Q. How would--was there any discussion of how you would accomplish
preparing or filing an affidavit at that point?
A. No.
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.
Q. You--you have already mentioned that you were not a lawyer and
you had not been to law school, those kinds of things. Did, uh, did you
understand when you--the potential legal problems that you could have
caused yourself by allowing a false affidavit to be filed with the
court, in a court proceeding?
A. During what time--I mean--I--can you be--I'm sorry--
Q. At this point, I may ask it again at later points, but the night
of the telephone--
A. Are you--are you still referring to December 17th?
Q. The night of the phone call, he's suggesting you could file an
affidavit. Did you appreciate the implications of filing a false
affidavit with the court?
A. I don't think I necessarily thought at that point it would have
to be false, so, no, probably not. I don't--I don't remember having any
thoughts like that, so I imagine I would remember something like that,
and I don't, but--
Q. Did you know what an affidavit was?
A. Sort of.
Q. Of course, you're talking at that time by telephone to the
President, and he's--and he is a lawyer, and he taught law school--I
don't know--did you know that? Did you know he was a lawyer?
A. I--I think I knew it, but it wasn't something that was present
in my, in my thoughts, as in he's a lawyer, he's telling me, you know,
something.
Q. Did the, did the President ever tell you, caution you, that you
had to tell the truth in an affidavit?
A. Not that I recall.
Q. It would have been against his interest in that lawsuit for you
to have told the truth, would it not?
A. I'm not really comfortable--I mean, I can tell you what would
have been in my best interest, but I--
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. But had you testified truthfully, you would have had no--
certainly, no legal implications--it may have been embarrassing, but
you would have not had any legal problems, would you?
A. That's true.
Q. Did you discuss anything else that night in terms of--I would
draw your attention to the cover stories. I have alluded to that
earlier, but, uh, did you talk about cover story that night?
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 or bringing me papers.
Q. I think you've testified that you're sure he said that that
night. You are sure he said that that night?
A. Yes.
Q. Now, was that in connection with the affidavit?
A. I don't believe so, no.
Q. Why would he have told you you could always say that?
A. I don't know.
* * * * *
We're at that point that we've got a telephone conversation in the
morning with you and the President, and he has among other things
mentioned to you that your name is on the Jones witness list. He has
also mentioned to you that perhaps you could file an affidavit to avoid
possible testifying in that case. Is that right?
A. Correct.
Q. And he has also, I think, now at the point that we were in our
questioning, referenced the cover story that you and he had had, that
perhaps you could say that you were coming to my office to deliver
papers or to see Betty Currie; is that right?
A. Correct. It was from the entire relationship, that story.
Q. Now, when he alluded to that cover story, was that instantly
familiar to you?
A. Yes.
Q. You knew what he was talking about?
A. Yes.
Q. And why was this familiar to you?
A. Because it was part of the pattern of the relationship.
Q. Had you actually had to use elements of this cover story in the
past?
A. I think so, yes.
* * * * *
Q. Okay. Now let me go back again to the December 11th date--I'm
sorry--the 17th. This is the conversation in the morning. What else--
was there anything else you talked about in terms of--other than your
name being on the list and the affidavit and the cover story?
A. Yes. I had--I had had my own thoughts on why and how he should
settle the case, and I expressed those thoughts to him. And at some
point, he mentioned that he still had this Christmas present for me and
that maybe he would ask Mrs. Currie to come in that weekend, and I said
not to because she was obviously going to be in mourning because of her
brother.
* * * * *
Q. As I understand your testimony, too, the cover stories were
reiterated to you by the President that night on the telephone--
A. Correct.
Q. --and after he told you you would be a witness--or your name was
on the witness list, I should say?
A. Correct.
Q. And did you understand that since your name was on the witness
list that there would be a possibility that you could be subpoenaed to
testify in the Paula Jones case?
A. I think I understood that I could be subpoenaed, and there was a
possibility of testifying. I don't know if I necessarily thought it was
a subpoena to testify, but--
Q. Were you in fact subpoenaed to testify?
A. Yes.
Q. And that was what--
A. December 19th, 1997.
Q. December 19th.
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 the 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 separate 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.
Q. But they were in the same conversation, were they not?
A. Yes, they were.
Q. Did you understand in the context of the conversation that you
would deny the--the President and your relationship to the Jones
lawyers?
A. Do you mean from what was said to me or--
Q. In the context of that--in the context of that conversation,
December the 17th--
A. I--I don't--I didn't--
Q. Okay. Let me ask it. Did you understand in the context of the
telephone conversation with the President that early morning of
December the 17th--did you understand that you would deny your
relationship with the President to the Jones lawyers through use of
these cover stories?
A. From what I learned in that--oh, through those cover stories, I
don't know, but from what I learned in that conversation, I thought to
myself I knew I would deny the relationship.
Q. And you would deny the relationship to the Jones lawyers?
A. Yes, correct.
Q. Good.
A. If--if that's what it came to.
Q. And in fact you did deny the relationship to the Jones lawyers
in the affidavit that you signed under penalty of perjury; is that
right?
A. I denied a sexual relationship.
Q. The President did not in that conversation on December the 17th
of 1997 or any other conversation, for that matter, instruct you to
tell the truth; is that correct?
A. That's correct.
Q. And prior to being on the witness list, you--you both spoke--
A. Well, I guess any conversation in relation to the Paula Jones
case. I can't say that any conversation from the--the entire
relationship that he didn't ever say, you know, ``Are you mad? Tell me
the truth.'' So--
Q. And prior to being on the witness list, you both spoke about
denying this relationship if asked?
A. Yes. That was discussed.
Q. He would say something to the effect that--or you would say
that--you--you would deny anything if it ever came up, and he would nod
or say that's good, something to that effect; is that right?
A. Yes, I believe I testified to that.
Q. In his answer to this proceeding in the Senate, he has indicated
that he thought he had--might have had a way that he could have you--
get you to file a--basically a true affidavit, but yet still skirt
these issues enough that you wouldn't be called as a witness.
Did he offer you any of these suggestions at this time?
A. He didn't discuss the content of my affidavit with me at all,
ever.
Now, there is a lot there, but that's the testimony. I
would like to go quickly through some parts of it. First, let's
be very clear, as you saw, Ms. Lewinsky repeatedly told Mr.
Manager Bryant that she and the President did not discuss the
content of the affidavit in that phone call.
Let's listen quickly again:
[Text of videotape presentation:]
Q. Are you, uh--strike that. Did he make any representation
to you about what you could say in that affidavit or--
A. No.
Q. What did you understand you would be saying in that
affidavit to avoid testifying?
A. Uh, I believe I've testified to this in the grand jury.
To the best of my recollection, it was, uh--to my mind came--it
was a range of things. I mean, it could either be, uh,
something innocuous or could go as far as having to deny the
relationship. Not being a lawyer nor having gone to law school,
I thought it could be anything.
Q. Did he at that point suggest one version or the other
version?
A. No. I didn't even mention that, so there, there wasn't a
further discussion--there was no discussion of what would be in
an affidavit.
* * * * *
Q. In his answer to this proceeding in the Senate, he has
indicated that he thought he had--might have had a way that he
could have you--get you to file a--basically a true affidavit,
but yet still skirt these issues enough that you wouldn't be
called as a witness.
Did he offer you any of these suggestions at this time?
A. He didn't discuss the content of my affidavit with me at
all, ever.
Now, ladies and gentlemen, the managers skipped these
excerpts. They hid from you this key fact about the call. To
borrow a phrase, they ``want to win too badly.''
In that excerpt, Ms. Lewinsky also made clear that the
President only suggested she might be able to file an affidavit
that might enable her to avoid testifying.
Let's listen:
[Text of videotape presentation:]
Q. Did he say anything about an affidavit?
A. Yes.
Q. What did he say?
A. He said that, uh, that I could possibly file an affidavit if I--
if I were subpoenaed, that I could possibly file an affidavit maybe to
avoid being deposed.
Q. How did he tell you you would avoid being deposed by filing an
affidavit?
A. I don't think he did.
Q. You just accepted that statement?
A. [Nodding head.]
Q. Yes?
A. Yes, yes. Sorry.
* * * * *
Q. And in that same telephone conversation, he encouraged you to
file an affidavit in the Jones case?
A. He suggested I could file an affidavit.
She also made clear that the President was not certain she
even would be subpoenaed and have to confront the issue.
[Text of videotape presentation:]
Q. What other discussion did you have in regard to the fact
that your name was on the list? You were scared; he was
disappointed, or it broke his heart. What other discussion did
you have?
A. Uh, I believe he said that, uh--and these are not
necessarily direct quotes, but to the best of my memory, that
he said something about that, uh, just because my name was on
the list didn't necessarily mean I'd be subpoenaed; and at some
point, I asked him what I should do if I received a subpoena.
He said I should, uh, I should let Ms. Currie know. Uh----
* * * * *
Q. How would--was there any discussion of how you would
accomplish preparing or filing an affidavit at that point?
A. No.
Now, where does this leave us? Ms. Lewinsky described a
brief conversation in which the President mentioned the
possibility that an affidavit might enable her to avoid
testifying if the need for it arose, and they left the subject.
No discussion of content. No discussion of logistics. No
discussion of timing. Virtually no discussion at all. And that
very brief exchange is the heart of the case.
Now, the managers contend that because Ms. Lewinsky also
recalls a reference to cover stories in that call, it is clear
beyond doubt that the President instructed her to file a false
affidavit.
But for at least two reasons, this claim fails also. First,
Ms. Lewinsky repeatedly told Mr. Manager Bryant that the
mention of cover stories in that call was not connected to the
mention of a possible affidavit--a position, I must note, that
she had taken with the independent counsel for a very long
time.
Second, Ms. Lewinsky has insisted for more than a year that
the cover stories were not, in any event, false--a position she
reasserted this week in explaining why an affidavit didn't
necessarily have to be false.
Let's look quickly at Ms. Lewinsky's testimony, first, with
respect to the alleged connection between cover stories and the
affidavit.
[Text of videotape presentation:]
Q. Well, based on prior relations with the President, the concocted
stories and those things like that, did this come to mind? Was there
some discussion about that, or did it come to your mind about these
stories--the cover stories?
A. Not in connection with the--not in connection with the
affidavit.
* * * * *
Q. Did you discuss anything else that night in terms of--I would
draw your attention to the cover stories. I have alluded to that
earlier, but, uh, did you talk about cover story that night?
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 or bringing me papers.
Q. I think you've testified that you're sure he said that that
night. You are sure he said that that night?
A. Yes.
Q. Now, was that in connection with the affidavit?
A. I don't believe so, no.
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 the 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 separate 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.
Again, the managers did not play these excerpts for you
either. They don't want you to know Ms. Lewinsky's
recollection, which is that the cover stories and the affidavit
were not connected in that telephone call. And that is the call
that is at the heart of that first obstruction charge.
The managers have suggested to you that Ms. Lewinsky for
the first time this week offered responses, responses
concerning the literal truth, for example, of the cover story
designed to help the President. That was a suggestion a few
days ago. Concerned then that the testimony might now undermine
their case, they suddenly did an about-face and attacked her on
Thursday.
Through these proceedings, the managers have consistently
told you how credible a witness Ms. Lewinsky is and they have
invoked her immunity agreement as the reason that she must be
honest, and today they again credit her testimony, but
carefully, only in snippets, only when it suits their purposes.
The responses Ms. Lewinsky provided about the cover story that
were mentioned on Thursday by Mr. Manager Bryant are not new;
they are the same responses Ms. Lewinsky gave to the
independent counsel. For example, when asked about the so-
called cover story, Ms. Lewinsky testified as follows this
week.
[Text of videotape presentation:]
Q. Would you agree that these cover stories that you've
just testified to, if they were told to the attorneys for Paula
Jones, that they would be misleading to them and not be the
whole story, the whole truth?
A. They would--yes, I guess misleading. They were literally
true, but they would be misleading, so incomplete.
The managers suggest that this testimony may be new,
different, tinted, and tainted, I think they said on Thursday,
but they don't tell you that Ms. Lewinsky said the very same
things to the independent counsel. She did so repeatedly, and
she did so--and this is key--before the President testified.
She didn't know what he would say. He didn't know what she had
said.
For example, Ms. Lewinsky referred to the two cover stories
in her February 1998 proffer, more than a year ago. Remember,
one such cover story concerned the reasons for visiting the
President before she left the White House. That was to bring
papers to him. And the other concerned her reasons for visiting
the President after she left the White House, and that was to
visit Betty Currie. Ms. Lewinsky was asked and said that
neither of these statements was untrue and also that there was
truth to both of these statements in her proffer a year ago.
She repeated this testimony in July to the independent
counsel, telling an FBI agent that ``these statements were not
untrue but were misleading'' and that ``some facts were omitted
from this statement.'' That is what she said this week.
The cover story testimony is consistent and is consistently
exculpatory. Of course, it was easy for Mr. Manager Bryant to
stand before you on Thursday reminiscing about the open and
forthcoming Ms. Lewinsky he had met during the informal
interview. It was easy for Mr. Manager Bryant to complain that
the Ms. Lewinsky of the deposition was, I believe he said, not
open to discussion or fully responsive to their inquiry. Let
the questions and answers let you be the judge of that. It was
easy for him to say that, because the House managers had
refused Senator Daschle's request that they be allowed to make
a transcript of the interview. That absence of a transcript
allowed them this unverifiable fallback if their examination
was disappointing: Oh, she changed on us. The truth is that she
didn't tell the story that the managers wanted to hear.
Remember those stubborn facts.
So we know that the managers are disappointed and want to
blame their disappointment on Ms. Lewinsky. But when you get to
the substance of today's presentation by the House managers, it
shows that they have not in fact identified any significant
area where Ms. Lewinsky's testimony on Monday differs from her
earlier testimony in the grand jury. Her view of the cover
story has been consistent from day 1.
Mr. Manager McCollum has also insisted that in the December
17 call it was clear both to the President and Ms. Lewinsky
that the affidavit had to be false. As he put it--and I quote--
``Can there be any doubt that the President was suggesting that
they file an affidavit that contained lies and falsehoods that
might keep her from ever having to testify in the Jones case,
and give the President the kind of protection he needed when he
testified?'' Yes, there surely is doubt.
Ms. Lewinsky herself explains this week that she did not
discuss the content of the affidavit with the President--we
played those portions already and I will not again--but also
that in her mind an affidavit presented a whole range of
possibilities that were not necessarily false.
[Text of videotape presentation:]
Q. The night of the phone call, he's suggesting you could
file an affidavit. Did you appreciate the implications of
filing a false affidavit with the court?
A. I don't think I necessarily thought at that point it
would have to be false, so, no, probably not. I don't--I don't
remember having any thoughts like that, so I imagine I would
remember something like that, and I don't, but--
Thus, as we have seen and heard, Ms. Lewinsky testified
that there was no discussion of what would be in the affidavit
and also that, to her thinking, the affidavit would not
necessarily have been false.
Now that the December 17 call has fallen short, the
managers have tried to transform the articles, as drafted, by
asserting that the alleged obstruction occurred also on another
date, January 5, in a call that took place then, even though
the articles pin everything on December 17.
With respect to a January 5 call, Mr. Manager Hutchinson
made the following claim to you. He asserted, and I quote:
Well, the record demonstrates that Monica Lewinsky's
testimony is that she had a conversation with the President on
the telephone in which she asked questions about the affidavit.
She was concerned about signing that affidavit and according to
Ms. Lewinsky, the President said, ``Well, you could always say
the people in legislative affairs got it for you or helped you
get it.''
This is still a quote:
And that is in reference to a paragraph in a particular
affidavit.
Those were Mr. Manager Hutchinson's words. But the record
unequivocally demonstrates that Ms. Lewinsky and the President
did not ever discuss the content of that affidavit in this
January 5 call or otherwise. And I challenge you to find any
paragraph in Ms. Lewinsky's affidavit, either her draft or the
final, reflecting this conversation. There isn't one. The call
wasn't about the affidavit. He didn't tell her what to say in
the affidavit. It is just not there.
In fact, Mr. Manager Hutchinson repeatedly represented to
you that Ms. Lewinsky reviewed the content of her affidavit
with the President. He had to say that because he is asking you
to remove the President from office for getting her to file a
false affidavit. That is a tough sell if they never talked
about the content of the affidavit. That is why he told you,
and I quote, ``On January 6th''--5th or 6th--``she discussed
that with the President, signing that affidavit, and the
content of the affidavit.''
That is why Mr. Manager Hutchinson also told you, ``She
went over the contents of that, even though she might not have
had it in hand, with the President.''
That is just not true. It is not true. To borrow a phrase,
again: It is wanting to win too much. What is clear from Ms.
Lewinsky's testimony is that she never went over the contents
of the affidavit with the President, on January 5 or at any
other time. Let's watch a brief excerpt about this matter.
[Text of videotape presentation:]
Q. Did--did the subject of the affidavit come up with the
President?
A. Yes, towards the end of the conversation.
Q. And how did--tell us how that occurred.
A. I believe I asked him if he wanted to see a copy of it, and he
said no.
Q. Well, I mean, how did you introduce that into the subject--into
the conversation?
A. I don't really remember.
Q. Did he ask you, well, how's the affidavit coming or--
A. No, I don't think so.
Q. But you told him that you had one being prepared, or something?
A. I think I said--I think I said, you know, I'm going to sign an
affidavit, or something like that.
Q. Did he ask you what are you going to say?
A. No.
Q. And this is the time when he said something about 15 other
affidavits?
A. Correct.
Q. And tell us as best as you can recall what--how that--how that
part of the conversation went.
A. I think that was the--sort of the other half of his sentence as,
No, you know, I don't want to see it. I don't need to--or, I've seen 15
others.
It was a little flippant.
Q. In his answer to this proceeding in the Senate, he has indicated
that he thought he had--might have had a way that he could have you--
get you to file a--basically a true affidavit, but yet still skirt
these issues enough that you wouldn't be called as a witness.
Did he offer you any of these suggestions at this time?
A. He didn't discuss the content of my affidavit with me at all,
ever.
In fact, Ms. Lewinsky made clear she did not have any
indication whatsoever that the President learned of the content
of the affidavit from Mr. Jordan, either.
[Text of videotape presentation:]
Q. The fact that you assume that Mr. Jordan was in contact
with the President--and I believe the evidence would support
that through his own testimony that he had talked to the
President about the signed affidavit and that he had kept the
President updated on the subpoena issue and the job search--
A. Sir, I'm not sure that I knew he was having contact with
the President about this. I--I think what I said was that I
felt that it was getting his approval. It didn't necessarily
mean that I felt he was going to get a direct approval from the
President.
* * * * *
Q. Did you have any indication from Mr. Jordan that he--
when he discussed the signed affidavit with the President, they
were discussing some of the contents of the affidavit? Did you
have--
A. Before I signed it or--
Q. No; during the drafting stage.
A. No, absolutely not--either/or. I didn't. No, I did not.
Finally, lacking any direct evidence of any kind that there
was a discussion about the content of the affidavit, the
managers have argued again and again that the President must
have told Ms. Lewinsky to file a false affidavit because it was
in his interest, not hers, to avoid her testifying in the Jones
case. Mr. Manager Bryant argued to you at the start of these
proceedings, ``When everything is said and done, Ms. Lewinsky
had no motivation, no reason whatsoever, to want to commit a
crime by willfully submitting a false affidavit with a court of
law. She really did not need to do this at that point in her
life.''
Mr. Manager Bryant also argued that only the President
would benefit from a false affidavit, so he must have
instructed her to do it. As he put it, ``Ms. Lewinsky files a
false affidavit in the Jones case. What is the result of filing
that false affidavit and who benefited from that?''
But he was wrong. He was wrong, as Ms. Lewinsky made very
clear when Mr. Manager Bryant asked her about this very subject
this week. Let's listen to what she said:
[Text of videotape presentation:]
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.
Ms. Lewinsky concedes that she had a reason to act on her
own.
Now, we have been discussing subpart (1) of article II, the
affidavit allegation. But this testimony also undermined
subpart (2) of article II, which alleges that the President
obstructed justice in that very same phone call by encouraging
Ms. Lewinsky to lie in any testimony that she might give. Ms.
Lewinsky previously denied that she and the President ever
discussed the content of any deposition testimony in that
conversation. That happened before this week. Indeed, she had
told the FBI that she and the President never discussed what to
say about her visits to the White House in the context of the
Paula Jones case. And the managers themselves said, in a press
release on January 19 of this year, that the President and Ms.
Lewinsky ``did not discuss the deposition that evening because
Monica had not yet been subpoenaed.''
So it is not entirely surprising that the managers did not
ask Ms. Lewinsky to confirm that she and the President talked
about the testimony in this call, even though that is where the
obstruction allegedly occurred. They didn't ask her about that
this week because they knew the answer. They knew the answer
was ``No.'' They knew there was no discussion about the content
of her testimony during that call. And the testimony you have
seen today confirms that answer resoundingly. There is no
evidence to support the charge in subpart (2) either. The
managers did not even try to elicit it.
The President did not obstruct justice. Ms. Lewinsky's
testimony explodes these two claims arising out of the December
17 telephone call.
Now let's turn to the allegation in article II concerning
gifts. Subpart (3) charges that:
On or about December 28, 1997, [the President] corruptly
engaged in, encouraged, or supported a scheme to conceal
evidence that had been subpoenaed in a Federal civil rights
action brought against him.
Now, the managers have indicated to you that Ms. Lewinsky
provided testimony useful to their case with respect to the
President's involvement in the transfer of gifts to Ms. Currie.
We must have attended a different deposition. In fact, Ms.
Lewinsky's testimony provides powerful support for the position
that Ms. Lewinsky decided on her own to keep from the Jones
lawyers the gifts she had received from the President. It
provides powerful support for the position that she had her own
reasons and concerns for keeping the gifts from them. And it
provides powerful support for the position that she never
discussed either the topic of gifts or her own reasons for
concern with the President before making her own independent
decision on how to handle the gifts.
Perhaps most notably, her testimony also provides
corroboration for the President's testimony that he told her
she had to turn over to the Jones lawyers what gifts she had.
That is new evidence. But it undermines the managers' case, it
doesn't help it.
In one of the most extraordinary points in the deposition--
and we will get to this in a moment--we learned that the Office
of Independent Counsel failed to disclose to the House, to the
Senate, to the President, Ms. Lewinsky's exculpatory statement
on this point.
Since the OIC evidently had chosen not to share the
information with us, with the House or with this body, we owe
the managers a small debt of gratitude for allowing us to learn
of it here.
Now let's look at the record with respect to the phone
calls giving rise to the gift pickup. The managers repeatedly
asserted at the outset that they could prove Ms. Currie called
Ms. Lewinsky and not the other way around. They claimed they
had found a cell phone record documenting that initial call to
arrange to pick up the gifts. As Mr. Manager Hutchinson said
tantalizingly at the start of these proceedings:
Well, it was not known at the time of the questioning of
Monica Lewinsky, but since then, the cell phone record was
retrieved. And you don't have it in front of you, but it will
be available. The cell phone record was retrieved that showed
on Betty Currie's cell phone calls that a call was made at 3:32
p.m. from Betty Currie to Monica Lewinsky and--
Still under quotes--
this confirms the testimony of Monica Lewinsky that the
followup to get the gifts came from Betty Currie.
That is what Mr. Manager Hutchinson promised the record
would show. But that is not, in the end, what the record now
shows. There is no evidence that the cell phone call initiated
the process, as the managers claimed, and since there is no
evidence that that call from Ms. Currie was the call initiating
the process, there is no documentary evidence that Ms. Currie
initiated the process. It is that simple. The proof has failed.
What the record does show is that there was a cell phone
call that day, a proposition that no one has ever disputed. Ms.
Lewinsky testified to the managers that she recalls a cell
phone call that day. Let's look at the testimony. This passage
that you are about to see addresses the calls between Ms.
Lewinsky and Ms. Currie on December 28. Ms. Lewinsky has just
described Ms. Currie's call to her about picking something up,
and this is what follows.
[Text of videotape presentation:]
Q. Did--did you have other telephone calls with her that day?
A. Yes.
Q. Okay. What was the purpose of those conversations?
A. I believe I spoke with her a little later to find out when she
was coming, and I think that I might have spoken with her again when
she was either leaving her house or outside or right there, to let me
know to come out.
Q. Do--at that time, did you have the caller identification--
A. Yes, I did.
Q. --on your telephone?
A. Yes.
Q. And did you at least on one occasion see her cell phone number
on your caller-ID that day?
A. Yes, I did.
Nowhere does Ms. Lewinsky say which call was the cell phone
call. In fact, if anything, it is logical to assume that it is
the call from Ms. Currie announcing her imminent arrival which,
of course, says nothing about how the visit was initially
planned, and no one ever has disputed that Ms. Currie picked up
the box. The fact that she might have called to say, ``I'm
downstairs now,'' is of no additional evidentiary value
whatsoever.
Left without a documentary record, the managers assert that
there is new testimonial evidence of other calls on December 28
that somehow corroborate their theory of the case. But the new
testimony doesn't even establish who made the other calls that
day, and the record already had evidence of other calls on that
day. Ms. Lewinsky mentioned such calls to the grand jury. Ms.
Lewinsky and Ms. Currie spoke often, especially in that time
period. There were phone calls.
There is nothing new here. Ms. Currie has one recollection;
Ms. Lewinsky has a different recollection. Indeed, when asked
by Mr. Manager Bryant whether there was any doubt in her mind
that it was Betty Currie who called her, Ms. Lewinsky stated
simply, ``That's how I remember this event.''
Straining for something beyond this absolutely unresolvable
conflict, the managers promised evidence to tip the balance,
and they produced none. The much-touted cell phone call utterly
fails to establish who initiated the gift pickup by Ms. Currie.
It is, therefore, clear that the deposition testimony does
not advance the managers' case with respect to the gifts, but
it sure advances the defense case. Remember, Ms. Lewinsky
received a subpoena on December 19 requesting gifts she had
received from the President. She met with her lawyer, Frank
Carter, on December 22, and she did not speak to the President
in the interim.
In her deposition this week, Ms. Lewinsky testified at some
length about how she decided what to bring her attorney, Frank
Carter, in response to that request for gifts. As we will see,
she decided on her own that she would bring only innocuous
things to produce, things that any intern might have in his or
her possession.
Again, this was on December 22, well before the December 28
meeting with the President at which the managers and the
articles say the plan to hide the gifts was hatched. Ms.
Lewinsky explained to the managers what she did and why she did
it. Let's listen.
[Text of videotape presentation:]
Q. Did, uh, did 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 those items with Mr. Jordan?
A. I think I showed them to him, but I'm not 100 percent sure. If
I've testified that I did, then I'd stand by that.
Q. Okay. How did you select those items?
A. Uh, actually, kind of in an obnoxious way, I guess. I--I felt
that it was important to take the stand with Mr. Carter and then, I
guess, to the Jones people that this was ridiculous, that they were--
they were looking at the wrong person to be involved in this. And, in
fact, that was true. I know and knew nothing of sexual harassment. So I
think I brought the, uh, Christmas cards, that I'm sure everyone in
this room has probably gotten from the President and First Lady, and
considered that correspondence, and some innocuous pictures and--they
were innocuous.
Q. Were they the kind of items that typically, an intern would
receive or, like you said, any one of us might receive?
A. I think so.
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. I don't believe so.
Q. Did Mr. Jordan make any comment about those items?
A. No.
Q. Were any of these items eventually turned over to Mr. Carter?
A. Yes.
As an aside, contrary to the assertion of Mr. Manager
Rogan, it is also clear from that excerpt that Ms. Lewinsky
knew nothing of sexual harassment. That is what she said.
So it is clear from this tape that well before December 28
Ms. Lewinsky had made her own decision for her own reasons not
to produce the gifts. She remained firm in this decision for
her own reasons on December 28 when the President gave her more
gifts. Let's watch again.
[Text of videotape presentation:]
Q. Okay. Did--he gave you some gifts that day, and my question to
you is what went through your mind when he did that, when you knew all
along that you had just received a subpoena to produce gifts. Did that
not concern you?
A. No, it didn't. I was happy to get them.
Q. All right. Why did it--beyond your happiness in receiving them,
why did the subpoena aspect of it not concern you?
A. I think at that moment--I mean, you asked me when he gave me
those gifts. So, at that moment, when I was there, I was happy to be
with him. I was happy to get these Christmas presents. So I was nervous
about the case, but I had made a decision that I wasn't going to get
into it too much--
Q. Well--
A. --with a discussion.
Q. --have you in regards to that--you've testified in the past that
from everything that the President had told you about things like this,
there was never any question that you were going to keep everything
quiet, and turning over all the gifts would prompt the Jones attorneys
to question you. So you had no doubt in your mind, did you not, that
you weren't going to turn these gifts over that he had just given you?
A. Uh, I--I think the latter half of your statement is correct. I
don't know if you're reading from my direct testimony, but--because you
said--your first statement was from everything the President had told
you. So I don't know if that was--if those were my words or not, but
I--no, I was--I--it--I was concerned about the gifts. 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 that you stated.
Now, when Ms. Lewinsky raised the issue of gifts with the
President on December 28, she did not state he even answered.
Her recollection of whether he said anything has been murky, as
we have heard discussed here. And in her recent deposition she
declined to resolve the inconsistencies in favor of the version
the managers have advanced.
And then what happened after she left on December 28? As
Ms. Lewinsky recounted the subsequent events, Ms. Currie later
called and arranged to pick up something. But what? According
to Ms. Lewinsky, Ms. Currie never said ``gifts'' when she
called. Ms. Lewinsky assumed that was what she was calling
about--that is her testimony--no doubt because they had been on
her mind for the reasons we have just heard explained.
Now, the managers attempt to respond to all this by saying
over and over, yes, but the President never told Ms. Lewinsky
she had to produce the gifts he had given her. They attempt to
convert his silence into a failure to perform a legal duty and
then to convert that failure to perform a legal duty into a
high crime.
But are we really sure that he didn't tell her to produce
the gifts? Remember, the President volunteered on his own in
the grand jury that Ms. Lewinsky had raised the subject of
gifts with him. That was long before he knew she had said it.
And remember, he said what his response was: ``You have to give
them whatever you have.''
Now, the managers would have you believe Ms. Lewinsky
rejected that recollection wholesale, that she said he never
said any such thing. They need that to be the case. But it is
not so, we now learn, no thanks to Mr. Starr's agents.
Let's watch.
[Text of videotape presentation:]
Q. Okay. Now, were you ever under the impression from anything that
the President said that you should turn over all the gifts to the Jones
lawyers?
A. No, but where this is a little tricky--and I think I might have
even mentioned this last weekend--was that I had an occasion in an
interview with one of the--with the OIC--where I was asked a series of
statements, if the President had made those, and there was one
statement that Agent Phalen said to me--I--there were--other people,
they asked me these statements--this is after the President testified
and they asked me some statements, did you say this, did you say this,
and I said, no, no, no. And Agent Phalen said something, and I think it
was, ``Well, you have to turn over whatever you have.'' And I said to
you, ``You know, that sounds a little bit familiar to me.''
So that's what I can tell you on that.
Q. That's in the 302 exam?
A. I don't know if it's in the 302 or not, but that's what
happened.
Q. Uh-huh.
This is extraordinary testimony. Why? Because Ms. Lewinsky
apparently corroborated the President. She recognized those
words when she heard them. She didn't refute the President. And
the OIC never told us that that was what she said. Never told
the House. Never told this body. We had no idea about Ms.
Lewinsky's recollection until we heard her testimony. We can
only wonder--in troubled disbelief--how much more we still
don't know. The President did not obstruct justice. Ms.
Lewinsky's testimony seriously undermines the gift claim that
is before you.
We have reviewed the first three subparts of article II.
Now, let's look quickly at the fourth.
Ms. Lewinsky's testimony also confirms what has been clear
throughout these proceedings: That her New York job search
efforts began in October 1997, well before Ms. Lewinsky was
ever named a potential witness in the Jones case; and that Mr.
Jordan first became involved in the job search effort in
November, early November, also before she became a witness;
that Ms. Lewinsky had received a job offer in New York from the
United Nations in November also, and also well before there was
any indication she would be a witness; and that Mr. Jordan and
Ms. Lewinsky had several contacts related to her job search in
November, despite the fact that both of them were traveling
extensively, including out of the country in that period.
In fact, Ms. Lewinsky makes it clear in this testimony that
she and Mr. Jordan began arranging the meeting that took place
on December 11 before Thanksgiving, before anyone knew Ms.
Lewinsky's name would be on a witness list--all of this, of
course, before anyone knew Ms. Lewinsky's name would be on a
witness list. If the fact that the assistance to Ms. Lewinsky
preceded her appearance on the witness list needed
confirmation, it has been confirmed again.
But there is more. What has also been confirmed is Ms.
Lewinsky's grand jury testimony that, ``No one ever asked me to
lie. And I was never promised a job for my silence.'' We have
repeatedly reminded this body of these plain and simple words
with their plain, simple and exculpatory meaning.
The House managers repeatedly have tried to suggest that
these words must mean something else. But at no time in their
hours of questioning Ms. Lewinsky did they question her about
this pivotal assertion regarding the job search allegation.
They did not ask her to explain it, to amend it, to qualify it.
They did not challenge it. They did not confront it. They
didn't dare. They knew the answer. They knew there was no quid
pro quo. And their failure to elicit a response speaks volumes.
The President did not obstruct justice. Ms. Lewinsky's
testimony undermines this job search claim, as well. Plain and
simple, the evidence is to the contrary.
Now, Mr. Manager Bryant remarked on Thursday that after
deposing Ms. Lewinsky he felt like the actor Charles Laughton
in the film ``Witness for the Prosecution.'' As counsel for the
President, I would respectfully submit that another famous role
of Charles Laughton might be the more fitting reference. It is
that of the dogged, tireless, obsessed Inspector Javert once
played by Mr. Laughton in the 1935 movie version of ``Les
Miserables.''
The most recent testimony of Ms. Lewinsky has seriously
damaged the managers' case and has confirmed that it is time
for this tireless pursuit of the President to come to an end.
I turn now to my partner, Mr. Kendall, who will discuss Mr.
Jordan's recent testimony.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. I think I see in the Chief Justice's eyes the
desire for----
[Laughter.]
Mr. LOTT. --a 15-minute break. Let's return as shortly
after 3:30 as is possible.
Thereupon, at 3:18 p.m., the Senate recessed until 3:42
p.m.; whereupon, the Senate reassembled when called to order by
the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice. I believe the White
House counsel has an additional presenter at this time.
The CHIEF JUSTICE. The Chair recognizes White House Counsel
Kendall.
Mr. Counsel KENDALL. Mr. Chief Justice, ladies and
gentlemen of the Senate, distinguished House Managers, I am
going to deal with Vernon Jordan's videotape deposition. That
deposition was taken on February 2, this last Tuesday, and it
produced nothing at all which was significant and new. Time and
again, Mr. Manager Hutchinson cited Mr. Jordan's previous grand
jury testimony, and time and again Mr. Jordan confirmed and
recited his previous grand jury testimony.
The managers had a full and fair opportunity to take Mr.
Jordan's testimony, and they, indeed, had time to spare. They
used just about 3 hours of their allotted 4-hour time. And they
discovered nothing that was not contained in the previous 900
pages of Mr. Jordan's grand jury testimony which has been taken
in his March 3, March 5, May 5, May 28, and June 9 appearances
before the OIC grand jury. Assertions by counsel is not the
same thing as proof. And I think that it is clear when you
watch the actual video as we have done today of the three
witnesses whose testimony the managers took earlier this week.
For example, with respect to Mr. Jordan, Mr. Manager
Hutchinson, who did a first-rate job of interrogation as you
can see from the video, told you last Thursday that he needed
to have in evidence the videotape, and you admitted it into
evidence, because--and I quote--``Mr. Jordan's testimony goes
to the connection between the job search, the benefit provided
to a witness, and the solicited false testimony from that
witness.''
Mr. Manager Hutchinson also asserted more than once last
Thursday that Mr. Jordan's testimony will prove that the
President was controlling the job search. There is only one
problem with these assertions. When you actually look at the
videotape and listen to what Mr. Jordan testified to, there is
no support for these propositions. There is no direct evidence
and there is no circumstantial evidence. It is plain that to
help somebody find a job is an acceptable activity. It is only
when this is tied, as the second article of impeachment alleges
it is tied, to some obstruction in the Paula Jones case that it
becomes illegal. And, when fairly considered, Mr. Jordan's
testimony provides no evidence whatsoever of that.
Mr. Jordan was a long-time and close personal friend of the
President.
[Text of videotape presentation:]
Q. It's probably not bad from Washington standards.
Would you describe the nature of your relationship with President
Clinton?
A. President Clinton has been a friend of mine since approximately
1973, when I came to your State, Arkansas, to make a speech as
president of the National Urban League about race and equal opportunity
in our Nation, and we met then and there, and our friendship has grown
and developed and matured and he is my friend and will continue to be
my friend.
Q. And just to further elaborate on that friendship, it's my
understanding that he and his--and the First Lady has had Christmas Eve
dinner with you and your family for a number of years?
A. Every year since his Presidency, the Jordan family has been
privileged to entertain the Clinton family on Christmas Eve.
Q. And has there been any exceptions in recent years to that?
A. Every year that he has been President, he has had, he and his
family, Christmas Eve with my family.
Q. And have you vacationed together with the Clinton family?
A. Yes. I think you have seen reels of playing golf and having fun
at Martha's Vineyard.
Q. And so you vacation together, you play golf together on a semi-
regular basis?
A. Whenever we can.
It has been, since the start of this investigation, well
known that Mr. Jordan was active in helping Ms. Lewinsky secure
employment in New York, and also that he construed this request
which came to him through Betty Currie as having come from the
President himself. In his May 28 grand jury testimony, for
example, Mr. Jordan testified that Betty Currie is the
President's secretary. ``She was the person who called me at
the behest of the President, I believe, to ask me to look into
getting Monica Lewinsky the job.''
And, again, on June 9, Mr. Jordan testified to the grand
jury that, ``The President asked me to help get Monica Lewinsky
a job.''
Mr. Manager Hutchinson played an excerpt, which I will not
play again, which once more repeats that testimony.
Mr. Jordan, however, made clear that while he recommended
Ms. Lewinsky for a job at three New York firms which he had
some connection with, the decision to hire her was the
company's, and he put no pressure of any kind on these
companies to hire Ms. Lewinsky. Indeed, she received an offer
at one company, Revlon, and failed to obtain one from American
Express or Burson-Marsteller.
[Text of videotape presentation:]
Q. Okay. Do you believe that you are acting in the company's
interest or the President's interest when you were trying to secure a
job for Ms. Lewinsky?
A. Well, what I knew was that the company would take care of its
own interest. This is not the first time that I referred somebody, and
what I know is, is that if a person being referred does not meet the
standards required for that company, I have no question but that that
person will not be hired. And so the referral is an easy thing to do;
the judgment about employment is not a judgment as a person referring
that I make. But I do have confidence in all of the companies on whose
boards I sit that, regardless of my reference, that as to their needs
and as to their expectations for their employees that they will make
the right decisions, as happened in the American Express situation.
American Express called and said: We will not hire Ms. Lewinsky. I
did not question it, I did not challenge it, because they understood
their needs and their needs in comparison to her qualifications. They
made a judgment. Revlon, on the other hand, made another judgment.
I am not the employer. I am the referrer, and there is a major
difference.
Q. Now, going back to what you knew as far as information and what
you conveyed to Revlon, you indicated that you did not tell Mr.
Halperin that you were making this request or referral at the request
of the President of the United States.
A. Yes, and I didn't see any need to do that.
Q. And then, when you talked to Mr.--
A. Nor do I believe not saying that, Counselor, was a breach of
some fiduciary relationship.
Q. And when you had your conversation with Mr. Perelman--
A. Right.
Q. --at a later time--
A. Right.
Q. --you do not remember whether you told him--you do not believe
you told him you were calling for the President--
A. I believe that I did not tell him.
Q. --but you assumed that he knew?
A. No. I did not make any assumptions, let me say. I said: Ronald,
here is a young lady who has been interviewed. She thinks the interview
has not gone well. See what you can do to make sure that she is
properly interviewed and evaluated--in essence.
Q. And did you reference her as a former White House intern?
A. Probably. I do not have a recollection of whether I described
her as a White House intern, whether I described her as a person who
had worked for the Pentagon. I said this is a person that I have
referred.
I think, Mr. Hutchinson, that I have sufficient, uh, influence,
shall we say, sufficient character, shall we say, that people have been
throughout my career able to take my word at face value.
Q. And so you didn't need to reference the President. The fact that
you were calling Mr. Perelman--
A. That was sufficient.
Q. --and asking for a second interview for Ms. Lewinsky, that that
should be sufficient?
A. I thought it was sufficient, and obviously, Mr. Perelman thought
it was sufficient.
Q. And so there is no reason, based on what you told him, for him
to think that you were calling at the request of the President of the
United States?
A. I think that's about right.
Q. And so, at least with the conversation with Mr. Halperin and Mr.
Perelman, you did not reference that you were acting in behalf of the
President of the United States. Was there anyone else that you talked
to at Revlon in which they might have acquired that information?
A. The only persons that I talked to in this process, as I
explained to you, was Mr. Halperin and Mr. Perelman about this process.
And it was Mr. Halperin who put the--who got the process started.
Q. So those are the only two you talked about, and you made no
reference that you were acting in behalf of the President?
A. Right.
Q. Now, the second piece of information was the fact that you knew
and the President knew that Ms. Lewinsky was under subpoena in the
Jones case, and that information was not provided to either Mr.
Halperin or to Mr. Perelman; is that correct?
A. That's correct.
The most critical thing about this deposition is it
contained no evidence of any kind which supports the central
allegation of article II, the obstruction of justice article,
that Mr. Jordan's job search assistance was tied to Ms.
Lewinsky testifying in a certain way or that the President
intended Mr. Jordan's assistance to corruptly influence her
testimony. Mr. Jordan was unequivocal about the fact that he
had frequently helped other people and that here there was no
quid pro quo, no tie-in of any kind. Indeed, he provided direct
evidence of this fact.
[Text of videotape presentation:]
Q. Mr. Jordan, you were asked questions about job assistance. Would
you describe the job assistance you have over your career given to
people who have come to you requesting help finding a job or finding
employment?
A. Well, I've known about job assistance and have for a very long
time. I learned about it dramatically when I finished at Howard
University Law School, 1960, to return home to Atlanta, Georgia to look
for work. In the process of my--during my senior year, it was very
clear to me that no law firm in Atlanta would hire me. It was very
clear to me that, uh, I could not get a job as a black lawyer in the
city government, the county government, the State government or the
Federal Government.
And thanks to my high school bandmaster, Mr. Kenneth Days, who
called his fraternity brother, Donald L. Hollowell, a civil rights
lawyer, and said, ``That Jordan boy is a fine boy, and you ought to
consider him for a job at your law firm,'' that's when I learned about
job referral, and that job referral by Kenneth Days, now going to Don
Hollowell, got me a job as a civil rights lawyer working for Don
Hollowell for $35 a week.
I have never forgotten Kenneth Days' generosity. And given the fact
that all of the other doors for employment as a black lawyer graduating
from Howard University were open to me, that's always--that's always
been etched in my heart and my mind, and as a result, because I stand
on Mr. Days' shoulders and Don Hollowell's shoulders, I felt some
responsibility to the extent that I could be helpful or got in a
position to be helpful, that I would do that.
And there is I think ample evidence, both in the media and by
individuals across this country, that at such times that I have been
presented with that opportunity that I have taken advantage of that
opportunity, and I think that I have been successful at it.
Q. Was your assistance to Ms. Lewinsky which you have described in
any way dependent upon her doing anything whatsoever in the Paula Jones
case?
A. No.
That is direct evidence. That is not circumstantial
evidence. That is unimpugned direct evidence.
Mr. Manager Hutchinson emphasized that Mr. Jordan now
admits that he met with Ms. Lewinsky for breakfast on December
31. But Mr. Jordan also conceded in his deposition that, while
he has no direct recollection of it, he also met with Ms.
Lewinsky on November 5, a date well before any of the many
managerial-selected dates for the beginning of the corrupt
conspiracy here.
[Text of videotape presentation:]
Q. . . . Now, when was the first time that you recall that you met
with Monica Lewinsky?
A. If you've read my grand jury testimony--
Q. I have.
A. --and I'm sure that you have--there is testimony in the grand
jury that she came to see me on or about the 5th of November. I have no
recollection of that. It was not on my calendar, and I just have no
recollection of her visit. There is a letter here that you have in
evidence, and I have to assume that in fact that happened. But as I
said in my grand jury testimony, I'm not aware of it, I don't remember
it--but I do not deny that it happened.
Q. And Ms. Lewinsky has made reference to a meeting that occurred
in your office on November 5, and that's the meeting that you have no
recollection of?
A. That is correct. We have no record of it in my office, and I
just have no recollection of it.
Q. And in your first grand jury appearance, you were firm, shall I
say, that the first time you met with Ms. Lewinsky, that it was on
December 11th?
A. Yes. It was firm based on what my calendar told me, and
subsequently to that, there has been a refreshing of my recollection,
and I do not deny that it happened. By the same token, I will tell you,
as I said in my grand jury testimony, that I did not remember that I
had met with her.
Q. And in fact today, the fact that you do not dispute that that
meeting occurred is not based upon your recollection but is simply
based upon you've seen the records, and it appears that that meeting
occurred?
A. That is correct.
The managers' theory is that it wasn't the original job
assistance which constitutes obstruction of justice, it was,
rather, the intensification of it which began at a certain
point--and that point has varied.
When you boil it all down, when you look at Mr. Jordan's
deposition or read his grand jury testimony, you see that he
acted for Ms. Lewinsky on two different occasions. On December
11 he made three phone calls for her to New York firms, and
then on January 8, when she thought an interview had gone
badly, he made another phone call, this time to Mr. Perelman.
That is all he did.
Now, you also will recall, I think, that the managers'
original theory was that what catalyzed this job search
intensification, what really kick-started it, was the entry of
an order in the Paula Jones case by Judge Wright on December
11.
Mr. Manager Hutchinson told you on January 14 what that
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 that 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.
That was the theory then. This is now. We demonstrated, in
our own presentation, of course, that that order was entered
late in the day at a time when Mr. Jordan was high over the
Atlantic in an airplane on his way to Amsterdam.
Mr. Manager Hutchinson's very able examination did not try
to resuscitate that theory. He didn't even make the attempt. He
didn't ask Mr. Jordan about the December 11 order.
So today we have a different time line. We have a new chart
and a new time line. Let's look at this.
This is Mr. Manager Hutchinson's chart this morning. What
is critical here? Well, we learned today that it is the
December 5 date that is critical. That is when the witness list
was faxed to the President's counsel, and that is what
triggered the succeeding chain of events. Mr. Manager
Hutchinson remarked, if I heard him correctly, that whenever
you are talking about obstruction of justice, it ties together,
it all fits together.
Let's look at his chart. We see that December 11 is on
here, but Judge Wright's order has dropped off entirely, unless
it is there where I don't see it. Judge Wright's order is now
not part of the chain of causation.
We look at December 7. We ask ourselves what happened then;
this is 2 days after the witness list came in. It must have
been something nefarious, because the President and Jordan
meet. But Mr. Manager Hutchinson did not represent to you that
they even talked about the Jones litigation or Ms. Lewinsky
because they didn't. The managers told you that in their trial
brief, and it has been Mr. Jordan's consistent testimony.
On December 11, Mr. Jordan did have a meeting with Ms.
Lewinsky. That was originally set up not on December 8, you
will recall, but back in November when Ms. Lewinsky had agreed
to call Mr. Jordan when he returned from his travel.
So the chronology here produces no even circumstantial
evidence of some linkage between the Paula Jones case and Mr.
Jordan's job search.
It is also significant, I think, while the witness list
came in on December 5, the President met with his lawyers on
December 6, the President doesn't call Ms. Lewinsky until
December 17 and Mr. Jordan doesn't learn about the fact that
Ms. Lewinsky is on the witness list until December 19. There
does not seem to be a lot of urgency here.
Let's review the nefarious conspiracy that we have heard
about today to get Ms. Lewinsky a job. We are told today that
Vernon Jordan had no corrupt intent, that Ms. Lewinsky had no
corrupt intent, and that Revlon had no corrupt intent. Rather,
it was the President who somehow spun out this conspiracy. But
I ask you, where, in all of the voluminous record, is there any
evidence, either direct or circumstantial, that the President
somehow tied these things together through Mr. Jordan? It is a
shell game, but the game doesn't have any shell in it, and I
think this is the loneliest conspiracy in human history, if it
was a conspiracy. But it wasn't.
On the subject of quid pro quo, I want to play two
excerpts, and part of these I ask your indulgence. They were
played in part by Mr. Manager Hutchinson, but I think they
deserve to be seen in their full context. In one of them you
are going to hear Mr. Jordan say that he was running the job
search, he was in control of the job search. I think that is
true about the Vernon Jordan job search. Ms. Lewinsky's job
search had also been proceeding with Mr. Richardson--Mr. Jordan
was not involved in any way with that--and through her superior
at the Pentagon, Mr. Ken Bacon. Let's listen to the full
context and listen for any evidence of a quid pro quo.
[Text of videotape presentation:]
BY MR. HUTCHINSON:
Q. Mr. Jordan, let me go back to that meeting on December 11th. I
believe we were discussing that. My question would be: How did the
meeting on December 11 of 1997 with Ms. Lewinsky come about?
A. Ms. Lewinsky called my office and asked if she could come to see
me.
Q. And was that preceded by a call from Betty Currie?
A. At some point in time, Betty Currie had called me, and Ms.
Lewinsky followed up on that call, and she came to my office, and we
had a visit.
Q. Ms. Lewinsky called, set up a meeting, and at some point sent
you a resume, I believe.
A. I believe so.
Q. And did you receive that prior to the meeting on December 11th?
A. I--I have to assume that I did, but I--I do not know whether she
brought it with her or whether--it was at some point that she brought
with her or sent to me--somehow it came into my possession--a list of
various companies in New York with which she had--which were her
preferences, by the way--most of which I did not know well enough to
make any calls for.
Q. All right. And I want to come back to that, but I believe--would
you dispute if the record shows that you received the resume of Ms.
Lewinsky on December 8th?
A. I would not.
Q. And presumably, the meeting on December 11th was set up
somewhere around December 8th by the call from Ms. Lewinsky?
A. I--I would not dispute that, sir.
Q. All right. Now, you mentioned that she had sent you a--I guess
some people refer to it--a wish list, or a list of jobs that she--
A. Not jobs--companies.
Q. --companies that she would be interested in seeking employment
with.
A. That's correct.
Q. And you looked at that, and you determined that you wanted to go
with your own list of friends and companies that you had better
contacts with.
A. I'm sure, Congressman, that you too have been in this business,
and you do know that you can only call people that you know or feel
comfortable in calling.
Q. Absolutely. No question about it. And let me just comment and
ask your response to this, but many times I will be listed as a
reference, and they can take that to any company. You might be listed
as a reference and the name ``Vernon Jordan'' would be a good reference
anywhere, would it not?
A. I would hope so.
Q. And so, even though it was a company that you might not have the
best contact with, you could have been helpful in that regard?
A. Well, the fact is I was running the job search, not Ms.
Lewinsky, and therefore, the companies that she brought or listed were
not of interest to me. I knew where I would need to call.
Q. And that is exactly the point, that you looked at getting Ms.
Lewinsky a job as an assignment rather than just something that you
were going to be a reference for.
A. I don't know whether I looked upon it as an assignment. Getting
jobs for people is not unusual for me, so I don't view it as an
assignment. I just view it as something that is part of what I do.
Q. You're acting in behalf of the President when you are trying to
get Ms. Lewinsky a job, and you were in control of the job search?
A. Yes.
Q. Now, going back--going to your meeting that we're talking about
on December 11th, prior to the meeting did you make any calls to
prospective employers in behalf of Ms. Lewinsky?
A. I don't think so. I think not. I think I wanted to see her
before I made any calls.
Q. And so if they were not before, after you met with her, you made
some calls on December 11th?
A. I--I believe that's correct.
Q. And you called Mr. Richard Halperin of McAndrews & Forbes?
A. That's right.
Q. You called Mr. Peter--
A. Georgescu.
Q. --Georgescu. And he is with what company?
A. He is chairman and chief executive officer of Young & Rubicam, a
leading advertising agency on Madison Avenue.
Q. And did you make one other call?
A. Yes. I called Ursie Fairbairn, who runs Human Resources at
American Express, at the American Express Company, where I am the
senior director.
* * * * *
Q. And what did you basically communicate to each of these
officials in behalf of Ms. Lewinsky?
A. I essentially said that you're going to hear from Ms. Lewinsky,
and I hope that you will afford her an opportunity to come in and be
interviewed and look favorably upon her if she meets your
qualifications and your needs for work.
Q. Okay. And at what level did you try to communicate this
information?
A. By--what do you mean by ``what level''?
Q. In the company that you were calling, did you call the chairman
of human resources, did you call the CEO--who did you call, or what
level were you seeking to talk to?
A. Richard Halperin is sort of the utility man; he does everything
at McAndrews & Forbes. He is very close to the chairman, he is very
close to Mr. Gittis. And so at McAndrews & Forbes, I called Halperin.
As I said to you, and as my grand jury testimony shows, I called
Young & Rubicam, Peter Georgescu as its chairman and CEO. I have had a
long-term relationship with Young & Rubicam going back to three of its
CEOs, the first being Edward Ney, who was chairman of Young & Rubicam
when I was head of the United Negro College Fund, and it was during
that time that we developed the great theme, ``A mind is a terrible
thing to waste.'' So I have had a long-term relationship with Young &
Rubicam and with Peter Georgescu, so I called the chairman in that
instance.
At American Express, I called Ms. Ursie Fairbairn who is, as I said
before, in charge of Human Resources.
So that is the level--in one instance, the chairman; in one
instance a utilitarian person; and in another instance, the head of the
Human Resources Department.
Q. And the utilitarian connection, Mr. Richard Halperin, was sort
of an assistant to Mr. Ron Perelman?
A. That's correct. He's a lawyer.
Q. Now, going to your meeting on December 11th with Ms. Lewinsky,
about how long of a meeting was that?
A. I don't--I don't remember. You have a record of it, Congressman.
Q. And actually, I think you've testified it was about 15 to 20
minutes, but don't hold me to that, either.
During the course of the meeting with Ms. Lewinsky, what did you
learn about her?
A. Uh, enthusiastic, quite taken with herself and her experience,
uh, bubbly, effervescent, bouncy, confident, uh--actually, I sort of
had the same impression that you House Managers had of her when you met
with her. You came out and said she was impressive, and so we come out
about the same place.
Q. And did she relate to you the fact that she liked being an
intern because it put her close to the President?
A. I have never seen a White House intern who did not like being a
White House intern, and so her enthusiasm for being a White House
intern was about like the enthusiasm of White House interns--they liked
it.
She was not happy about not being there anymore--she did not like
being at the Defense Department--and I think she actually had some
desire to go back. But when she actually talked to me, she wanted to go
to New York for a job in the private sector, and she thought that I
could be helpful in that process.
Q. Did she make reference to someone in the White House being
uncomfortable when she was an intern, and she thought that people did
not want her there?
A. She felt unwanted--there is no question about that. As to who
did not want her there and why they did not want her there, that was
not my business.
Q. And she related that--
A. She talked about it.
Q. --experience or feeling to you?
A. Yes.
Q. Now, your meeting with Ms. Lewinsky was on December 11th, and I
believe that Ms. Lewinsky has testified that she met with the President
on December 5--excuse me, on December 6--at the White House and
complained that her job search was not going anywhere, and the
President then talked to Mr. Jordan.
Do you recall the President talking to you about that after that
meeting?
A. I do not have a specific recollection of the President saying to
me anything about having met with Ms. Lewinsky. The President has never
told me that he met with Ms. Lewinsky, as best as I can recollect. I--I
am aware that she was in a state of anxiety about going to work. She
was in a state of anxiety in addition because her lease at Watergate,
at the Watergate, was to expire December 31st. And there was a part of
Ms. Lewinsky, I think, that thought that because she was coming to me,
that she could come today and that she would have a job tomorrow. That
is not an unusual misapprehension, and it's not limited to White House
interns.
Q. I mentioned her meeting with the President on the same day,
December 6th. I believe the record shows the President met with his
lawyers and learned that Ms. Lewinsky was on the Jones witness list.
Now, did you subsequently meet with the President on the next day,
December 7th?
A. I may have met with the President. I'd have to--I mean, I'd have
to look. I'd have to look. I don't know whether I did or not.
Q. If you would like to confer--I believe the record shows that,
but I'd like to establish that through your testimony.
MS. WALDEN: Yes.
THE WITNESS: Yes.
BY MR. HUTCHINSON:
Q. All right. So you met with the President on December 7th. And
was it the next day after that, December 8th, that Ms. Lewinsky called
to set up the job meeting with you on December 11th?
A. I believe that is correct.
Q. And sometime after your meeting on December 11th with Ms.
Lewinsky, did you have another conversation with the President?
A. Uh, you do understand that conversations between me and the
President, uh, was not an unusual circumstance.
Q. And I understand that--
A. All right.
Q. --and so let me be more specific. I believe your previous
testimony has been that sometime after the 11th, you spoke with the
President about Ms. Lewinsky.
A. I stand on that testimony.
Q. All right. And so there's two conversations after the witness
list came out--one that you had with the President on December 7th, and
then a subsequent conversation with him after you met with Ms. Lewinsky
on the 11th.
Now, in your subsequent conversation after the 11th, did you
discuss with the President of the United States Monica Lewinsky, and if
so, can you tell us what that discussion was?
A. If there was a discussion subsequent to Monica Lewinsky's visit
to me on December the 11th with the President of the United States, it
was about the job search.
Q. All right. And during that, did he indicate that he knew about
the fact that she had lost her job in the White House, and she wanted
to get a job in New York?
A. He was aware that--he was obviously aware that she had lost her
job in the White House, because she was working at the Pentagon. He was
also aware that she wanted to work in New York, in the private sector,
and understood that that is why she was having conversations with me.
There is no doubt about that.
Q. And he thanked you for helping her?
A. There's no question about that, either.
Q. And on either of these conversations that I've referenced that
you had with the President after the witness list came out, your
conversation on December 7th, and your conversation sometime after the
11th, did the President tell you that Ms. Monica Lewinsky was on the
witness list in the Jones case?
A. He did not.
Q. And did you consider this information to be important in your
efforts to be helpful to Ms. Lewinsky?
A. I never thought about it.
Mr. Jordan found out about Ms. Lewinsky's subpoena on
December 19 when a weeping Ms. Lewinsky telephoned him and came
to his office. Mr. Manager Hutchinson played that excerpt from
the testimony this morning. I won't replay it. Mr. Jordan then
did what I think is best called due diligence. He talked to Ms.
Lewinsky, got her a lawyer, asked her whether there was any
sexual relationship with the President, and was assured that
there was not. That same evening, he went to the White House
and made a similar inquiry of the President and he received a
similar response.
[Text of videotape presentation:]
Q. And still on December 19th, after your meeting with Ms.
Lewinsky, did you subsequently see the President of the United States
later that evening?
A. I did.
Q. And is this when you went to the White House and saw the
President?
A. Yes.
Q. At the time that Ms. Lewinsky came to see you on December 19th,
did you have any plans to attend any social function at the White House
that evening?
A. I did not.
Q. And in fact there was a social invitation that you had at the
White House that you declined?
A. I had--I had declined it; that's right.
Q. And subsequent to Ms. Lewinsky visiting you, did you change your
mind and go see the President that evening?
A. After the--a social engagement that Mrs. Jordan and I had, we
went to the White House for two reasons. We went to the White House to
see some friends who were there, two of whom were staying in the White
House; and secondly, I wanted to have a conversation with the
President.
Q. And this conversation that you wanted to have with the President
was one that you wanted to have with him alone?
A. That is correct.
Q. And did you let him know in advance that you were coming and
wanted to talk to him?
A. I told him I would see him sometime that night after dinner.
Q. Did you tell him why you wanted to see him?
A. No.
Q. Now, was this--once you told him that you wanted to see him, did
it occur the same time that you talked to him while Ms. Lewinsky was
waiting outside?
A. It could be. I made it clear that I would come by after dinner,
and he said fine.
Q. Now, let me backtrack for just a moment, because whenever you
talked to the President, Ms. Lewinsky was not inside the room--
A. That's correct.
Q. --and therefore, you did not know the details about her
questions on the President might leave the First Lady and those
questions that set off all of these alarm bells.
A. [Nodding head up and down.]
Q. And so you were having--is the answer yes?
A. That's correct.
Q. And so you were having this discussion with the President not
knowing the extent of Ms. Lewinsky's fixation?
A. Uh--
Q. Is that correct?
A. Correct.
Q. And, regardless, you wanted to see the President that night, and
so you went to see him. And was he expecting you?
A. I believe he was.
Q. And did you have a conversation with him alone?
A. I did.
Q. No one else around?
A. No one else around.
Q. And I know that's a redundant question.
A. It's okay.
Q. Now, would you describe your conversation with the President?
A. We were upstairs, uh, in the White House. Mrs. Jordan--we came
in by way of the Southwest Gate into the Diplomatic Entrance--we left
the car there. I took the elevator up to the residence, and Mrs. Jordan
went and visited at the party. And the President was already upstairs--
I had ascertained that from the usher--and I went up, and I raised with
him the whole question of Monica Lewinsky and asked him directly if he
had had sexual relations with Monica Lewinsky, and the President said,
``No, never.''
Q. All right. Now, during that conversation, did you tell the
President again that Monica Lewinsky had been subpoenaed?
A. Well, we had established that.
Q. All right. And did you tell him that you were concerned about
her fascination?
A. I did.
Q. And did you describe her as being emotional in your meeting that
day?
A. I did.
Q. And did you relate to the President that Ms. Lewinsky asked
about whether he was going to leave the First Lady at the end of the
term?
A. I did.
Q. And as--and then, you concluded that with the question as to
whether he had had sexual relations with Ms. Lewinsky?
A. And he said he had not, and I was satisfied--end of
conversation.
Q. Now, once again, just as I asked the question in reference to
Ms. Lewinsky, it appears to me that this is an extraordinary question
to ask the President of the United States. What led you to ask this
question to the President?
A. Well, first of all, I'm asking the question of my friend who
happens to be the President of the United States.
Q. And did you expect your friend, the President of the United
States, to give you a truthful answer?
A. I did.
Q. Did you rely upon the President's answer in your decision to
continue your efforts to seek Ms. Lewinsky a job?
A. I believed him, and I continued to do what I had been asked to
do.
This morning, a very short portion of the President's grand
jury testimony was played. The sound was not very good. It was
a very short snippet, but it relates to what happened between
Mr. Jordan and the President in that December 19, late-night
meeting at the White House. The snippet that was played for you
was:
Q. And Mr. Jordan informed you of that, is that correct?
``That'' being the subpoena.
A. No, sir.
That leaves the misleading impression in his grand jury
testimony the President did not acknowledge this visit with Mr.
Jordan. The question right above the one that was quoted,
however, was the following:
Q. You were familiar, weren't you, Mr. President, that she
had received the subpoena? You have already acknowledged that.
The answer was, ``Yes, sir, I was.''
And then two pages later, the President was asked by the
OIC:
Q. Did you, in fact, have a conversation with Mr. Jordan on
the evening of December 19, 1997, in which he talked to you
about Monica being in Mr. Jordan's office, having a copy of the
subpoena and being upset about being subpoenaed?
And the President's answer was:
I remember that Mr. Jordan was in the White House on
December 19 for an event of some kind, that he came up to the
residence floor and told me that he had--that Monica had gotten
subpoenaed or Monica was going to have to testify and I think
he told me he recommended a lawyer for her. I believe that's
what happened, but it was a very brief conversation.
So I think it is absolutely clear that there is no conflict
between the President's testimony and Mr. Jordan's testimony
about this. Mr. Jordan had recommended Ms. Lewinsky and took
her to the lawyer's office, to a lawyer, a Mr. Frank Carter, a
respected Washington, DC, lawyer, to whom Mr. Jordan had
recommended other clients.
[Text of videotape presentation:]
Q. Now, you have referred other clients to Mr. Carter during your
course of practice here in Washington, D.C.?
A. Yes, I have.
Q. About how many have you referred to him?
A. Oh, I don't know. Maggie Williams is one client that I--I
remember very definitely.
I like Frank Carter a lot. He's a very able young lawyer. He's a
first-class person, a first-class lawyer, and he's one of my new
acquaintances amongst lawyers in town, and I like being around him. We
have lunch, and he's a friend.
Q. And is it true, though, that when you've referred other clients
to Mr. Carter that you never personally delivered and presented that
client to him in his office?
A. But I delivered Maggie Williams to him in my office. I had
Maggie Williams to come to my office, and it was in my office that I
introduced, uh, Maggie Williams to Mr. Carter, and she chose other
counsel. I would have happily taken Maggie Williams to his office.
I will skip the next two videotapes, 21 and 22. I hear a
sigh of relief.
I want to use the next videotape--and I am almost through--
to correct the record as to one point that was made by the
managers on Thursday. And again, this representation was
important because it asserted an interconnection between the
job search assistance and testimony in the Jones case.
We were shown a chart on Thursday and it was a chart that
was entitled ``Interconnection Between Job Help and
Testimony.''
Managers' version:
Q. [so you] Talk to her both about the job and her concerns
about parts of the affidavit.
Answer, according to the managers' version, ``That is
correct.''
When we actually looked at the testimony which we will see
in just a second, the question is:
Q. Did you, in fact, talk to her about the job and her
concerns about parts of the affidavit?
A. I have never in any conversation with Ms. Lewinsky
talked to her about the job, on the one hand, or job being
interrelated with the conversation about the affidavit. The
affidavit was over here. The job was over here.
I don't suggest any intentional misrepresentation, but I
think the record deserves to be corrected.
[Text of videotape presentation:]
Q. Do you know why you would have been calling Mr. Carter on three
occasions, the day before the affidavit was signed?
A. Yeah. I--my recollection is--is that I was exchanging or sharing
with Mr. Carter what had gone on, what she had asked me to do, what I
refused to do, reaffirming to him that he was the lawyer and I was not
the lawyer. I mean, it would be so presumptuous of me to try to advise
Frank Carter as to how to practice law.
Q. Would you have been relating to Mr. Carter your conversations
with Ms. Lewinsky?
A. I may have.
Q. And if Ms. Lewinsky expressed to you any concerns about the
affidavit, would you have relayed those to Mr. Carter?
A. Yes.
Q. And if Mr. Carter was a good attorney that was concerned about
the economics of law practice, he would have likely billed Ms. Lewinsky
for some of those telephone calls?
A. You have to talk to Mr. Carter about his billing.
Q. It wouldn't surprise you if his billing did reflect a--a charge
for a telephone conversation with Mr. Jordan?
A. Keep in mind that Mr. Carter spent most of his time in being a
legal services lawyer. I think his concentration is primarily on
service, rather than billing.
Q. But, again, based upon the conversations you had with him, which
sounds like conversations of substance in reference to the affidavit,
that it would be consistent with the practice of law if he charged for
those conversations?
A. That's a question you'd have to ask Mr. Carter.
Q. They were conversations of substance with Mr. Carter concerning
the affidavit?
A. And they were likely conversations about more than Ms. Lewinsky.
Q. But the answer was yes, that they were conversations of
substance in reference to the affidavit?
A. Or at least a portion of them.
Q. In other words, other things might have been discussed?
A. Yes.
Q. In your conversation with Ms. Lewinsky prior to the affidavit
being signed, did you in fact talk to her about both the job and her
concerns about parts of the affidavit?
A. I have never in any conversation with Ms. Lewinsky talked to her
about the job, on one hand, or job being interrelated with the
conversation about the affidavit. The affidavit was over here. The job
was over here.
Q. But the--in the same conversations, both her interest in a job
and her discussions about the affidavit were contained in the same
conversation?
A. As I said to you before, Counselor, she was always interested in
the job.
Q. Okay. And she was always interested in the job, and so, if she
brought up the affidavit, very likely it was in the same conversation?
A. No doubt.
Q. And that would be consistent with your previous grand jury
testimony when you expressed that you talked to her both about the job
and her concerns about parts of the affidavit?
A. That is correct.
Q. Now, on January 7th, the affidavit was signed. Subsequent to
this, did you notify anyone in the White House that the affidavit in
the Jones case had been signed by Ms. Lewinsky?
A. Yeah. I'm certain I told Betty Currie, and I'm fairly certain
that I told the President.
Q. And why did you tell Betty Currie?
A. I'm--I kept them informed about everybody else that was--
everything else. There was no reason not to tell them about that she
had signed the affidavit.
Q. And why did you tell the President?
A. The President was obviously interested in her job search. We had
talked about the affidavit. He knew that she had a lawyer. It was in
the due course of a conversation. I would say, ``Mr. President, she
signed the affidavit. She signed the affidavit.''
Q. And what was his response when you informed him that she had
signed the affidavit?
A. ``Thank you very much.''
Q. All right. And would you also have been giving him a report on
the status of the job search at the same time?
A. He may have asked about that, and--and part of her problem was
that, you know, she was--there was a great deal of anxiety about the
job. She wanted the job. She was unemployed, and she wanted to work.
Q. Now, I think you indicated that he was obviously concerned
about--was it her representation and the affidavit?
A. I told him that I had found counsel for her, and I told him that
she had signed the affidavit.
Q. Okay. You indicated that he was concerned, obviously, about
something. What was he obviously concerned about in your conversations
with him?
A. Throughout, he had been concerned about her getting employment
in New York, period.
Q. And he was also concerned about the affidavit?
A. I don't know that that was concern. I did tell him that the
affidavit was signed. He knew that she had counsel, and he knew that I
had arranged the counsel.
In his presentation, Mr. Manager Hutchinson discussed the
breakfast with Ms. Lewinsky, which Mr. Jordan now concedes he
had, on December 31. He showed you the restaurant bill. I am
not going to dwell long on that because it really is not
relevant to article II.
First of all, it is nowhere alleged as a ground of
obstruction of justice. Mr. Manager Hutchinson referred to the
seven pillars of obstruction in article II. Those are seven
different factual grounds. This alleged obstruction is nowhere
in the grounds.
There is plainly a conflict in the testimony between Ms.
Lewinsky and Mr. Jordan; although Mr. Jordan, as you will
recall, vehemently denies ever giving that instruction, saying
in the videotape played this morning: ``I'm a lawyer and I'm a
loyal friend, but I'm not a fool. That's ridiculous. I never
did that.''
The second reason why I think this is irrelevant is, it was
not presented as a separate ground for impeachment by the
independent counsel. It was identified--the fact of the
conflicted testimony was identified, but it was not urged as a
separate ground, despite the very, very energetic investigation
of Mr. Starr. We have heard a lot in this case about ``dogs
that won't hunt.'' In my mind, this is like a Sherlock Holmes
story about the dog that didn't bark. If the independent
counsel didn't raise it, that is significant. Finally, it has
nothing whatsoever to do with the President, by anybody's
contention.
Mr. Chief Justice, I would like to raise a question now,
which arose in the final stage of the Vernon Jordan deposition.
Mr. Manager Hutchinson had taken the deposition. I had asked a
couple of questions in response. After I had concluded, Mr.
Jordan made a statement defending his own integrity to which
Mr. Manager Hutchinson objected. I propose--since the issue has
arisen of his integrity and since Mr. Jordan is an honorable
man and has had a distinguished career--that I be allowed to
play the approximately 2-minute segment of his own statement
about his integrity.
The CHIEF JUSTICE. Do the managers object?
Mr. Manager HUTCHINSON. Mr. Chief Justice, it is my
understanding that that is not a part of the Senate record, and
therefore it would not be appropriate to be played under the
rules of the Senate.
The CHIEF JUSTICE. But is it a part of the deposition of
him that was taken?
Mr. Manager HUTCHINSON. It is not a part of the deposition
that was entered into the Senate record under the Senate rules.
The CHIEF JUSTICE. Well, the Parliamentarian advises me
that Division I of the motion on Thursday, which was approved,
would prevent the playing of that. So the Chair will rule that
that is not acceptable.
Mr. LEAHY addressed the Chair.
The CHIEF JUSTICE. The Senator from Vermont, Mr. Leahy, is
recognized.
Mr. LEAHY. I was one of the Senators at that deposition. I
think it would be extremely interesting to hear it. It was
taken at the deposition. I ask unanimous consent that it----
Mr. NICKLES. Regular order.
The CHIEF JUSTICE. The Senator from Vermont may appeal the
decision of the Chair, which is that it not be played, ask
consent for----
Mr. LEAHY. I'm asking unanimous consent, under the
circumstances and because it is so short, that the deposition--
and it would clarify that part of the deposition Mr. Jordan
gave, which has been videotaped--be allowed to be shown here on
the floor.
The CHIEF JUSTICE. Is there objection?
Mr. NICKLES. Objection.
The CHIEF JUSTICE. Objection is heard.
Counsel may proceed.
Mr. Counsel KENDALL. I would like to recognize my
colleague. Well, I think that concludes our presentation.
Mr. Counsel RUFF. We yield back the remainder of our time,
Mr. Chief Justice.
The CHIEF JUSTICE. Very well. The managers have 31 minutes
remaining.
The Chair recognizes Mr. Manager Bryant.
Mr. Manager BRYANT. Thank you, Mr. Chief Justice. We will
conclude our roughly half hour by responding to as many of the
contentions and statements raised by counsel for the White
House as we can. I first want to talk, I suppose, about the
statement that we heard back a couple of weeks ago, which was
repeated today by one of the White House counsels, that ``the
managers want to win too much.''
This is not a game. This is not a game to anyone here.
There are extraordinary consequences to what we are doing and
what we have been doing and what your decision will be. The
stakes are very high. We don't need to take a poll to do what
we did. I am reminded of the testimony of the President and
Dick Morris taking the poll to determine whether to tell the
truth or not, and then after deciding the public would not
forgive his perjury, he said, ``We will just have to win.'' But
that's not the attitude the House managers have in bringing
this case here. The managers fully appreciate the seriousness
and the consequences of this. We want to do the right thing. We
are not here just to win. We want to help the Senate in this
constitutional process do the constitutional thing--not only
for the precedent of this Senate but for the precedent of
future generations in terms of how the courts now and later
will view obstruction of justice and perjury. We believe this
is a constitutional effort and not a game.
The question about snippets, that we just put some snippets
on the air today--we wanted to call live witnesses. We wanted
Ms. Lewinsky to be here and let everybody examine her fully and
completely. But we are working with a timeframe, and we brought
up those points in her testimony and in Mr. Jordan's testimony
and Mr. Blumenthal's testimony that we felt proved our case.
With regard to the issue that Ms. Seligman raised about
filing a false affidavit, she ran that testimony many times. I
thought we ran the President's earlier in these hearings
several times, but I think she beat our record with that
testimony. I appreciate that.
But what that is important for is not what Ms. Lewinsky
felt was going on that night; but I think it perfectly
illustrates what I told you the other day about her testimony.
While she was truthful and while she gave us the testimony she
had to give us to keep her immunity agreement, where there were
some blanks to fill in, or where there was something that could
be bent, she did so.
As they pointed out on the question of the linkage between
filing an affidavit and this cover story, it was so obvious
that they were connected that the OIC did not ask that
question, ``Did you think about this when you''--and that. It
was obvious. But he did not ask that question. She was right;
the question was not asked. So when she, Ms. Lewinsky, had an
opportunity in these hearings, when I asked her, she said,
``Well, you know, I really didn't link the two together.''
Let's not throw away all of our common sense here.
She gets a phone call in the middle of the night with a
message that you are on the witness list, and she says three
things occurred: You are on the witness list, you can file an
affidavit, and you can use a cover story. Why else would the
President raise the issue of a cover story at 2:30 in the
morning if he didn't intend for her to use that?
But keep in mind, too, it really doesn't matter how she
appreciated this. It really matters what the President
intended. And he intended to let her know that she was on the
list, she could be subpoenaed, she could file an affidavit, and
she could use the cover story.
And in fact she did use that cover story. She went to her
lawyer, Mr. Carter, and told him that. And it was incorporated
into the draft affidavit that she went to take papers to the
President to sign, and in those cases she may have been alone.
But they didn't like the specter of her being alone. So they
struck that provision out of the final affidavit. But they did
attempt to use it.
But keep in mind also that it is the President's intent.
And his intent was to interfere with justice in the Paula Jones
case and to have her give a false affidavit. And that is why he
so suggested that.
On the gifts to people, is it really an issue? Is there
really an issue here? There is some fabulous lawyering over
here. But there is no issue here. Ms. Lewinsky testified that
there was no doubt in her mind that Ms. Currie initiated the
call. That is all there is to this issue. The fact that there
were other calls in the day, the fact that one of the other
calls may have been at 3:30, really are moot points. The issue
is, if Betty Currie initiated that phone call, the only impetus
for her to initiate that call had to come from the President.
She was not in that conversation that morning. The President
had to tell her, and apparently did so, because she made the
call.
At the end of the examination of her testimony, or toward
the end--it was shown several times--we asked her, ``Did the
President ever tell you anything about the gifts?'' And she
said, ``Not that I remember.'' And then later on in the
segment, you also saw she was asked the question again by me:
``OK. Were you ever under any impression or the impression from
the President that you should turn over all the gifts to the
Jones lawyers?'' And she said, ``No.'' Then she goes on to say,
``This gets a little tricky here, and it could be I heard the
statements from agents, or somewhere along the line, or perhaps
that it did sound familiar.''
I would suggest to you what happened there is that Mr.
Carter--it is clearly in the testimony and before all of us in
the record--her own lawyer told her she had to turn over all
the records. That is where she heard that.
But logic demands that you reject that view, because why
would the President, whose intent was to conceal this whole
affair, ever think of telling her that: You have to turn over
all those gifts? If he did tell her that she had to turn over
all of those gifts, why would she immediately go out that
afternoon and reject that instruction, and just completely say:
Well, I am going to forget what he told me to do. I am going to
call his secretary and have her come pick up these gifts and
store them for me?
That is just not logical. Common sense tells us that didn't
happen that way. Ms. Lewinsky was absolutely positive that
there was no doubt that Betty Currie initiated the call. And
that is that.
Job search: Very quickly, this is not a bribery case. This
is not giving her a job, bribing her with a job to get her
false testimony. It is not a bribery case. If it was, we
wouldn't be arguing about the impeachability of obstruction of
justice. It would be clear that bribery is mentioned in the
Constitution. It is about attempting to corruptly persuade or
influence the behavior of a witness. That is exactly what that
is about.
I would also close very quickly by telling you in the
beginning I urged you to look at particularly obstruction of
justice charges, the result-benefit analysis. And I do not ever
hear anybody talking about that but me. So maybe I am off base
here. But I ask you to consider each of these seven pillars of
obstruction that Mr. Hutchinson raised, and look at the end
results of those acts, and look at who benefited from those
results. And what I believe you would have found and can still
find is that each case resulted in impeding justice in the
Paula Jones case in some way that favored the President. And
the benefit naturally inured to the President.
I guess if you reject that result-benefit test, and if you
accept each and every argument of these extremely fine defense
counsel that the President wasn't behind any of this, then I
guess you just have to reach the conclusion that the President
was the luckiest man in the world, that people would commit
crimes by filing false affidavits, by hiding evidence, by going
out and possibly trashing the witnesses and giving false
testimony in grand jury proceedings. If that is the way you
feel about it, so be it; we will abide by your judgment. But I
suggest to you that the facts of this case are really not in
contest. They have been argued very well by defense counsel for
the White House.
I am about to exhaust my time. So I yield to Mr. Manager
Hutchinson to make some remarks.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. This
will be very brief, and then I will yield to Mr. Graham.
Let's recall Ms. Monica Lewinsky to the stand for a brief
moment. Let's go to the Park Hyatt Hotel, December 31, 1997,
breakfast between Ms. Lewinsky and Mr. Jordan.
[Text of videotape presentation:]
A. Well, the--sort of the--I don't know what to call it,
but the story that I gave to Mr. Jordan was that I was trying
to sort of alert to him that, gee, maybe Linda Tripp might be
saying these things about me having a relationship with the
President, and right now, I'm explaining this to you. These
aren't the words that I used or how I said it to him, and that,
you know, maybe she had seen drafts of notes, trying to
obviously give an excuse as to how Linda Tripp could possibly
know about my relationship with the President without me having
been the one to have told her. So that's what I said to him.
Q. And what was his response?
A. I think it was something like go home and make sure--oh,
something about a--I think he asked me if they were notes from
the President to me, and I said no. I know I've testified to
this. I stand by that testimony, and I'm just recalling it,
that I said no, they were draft notes or notes that I sent to
the President, and then I believe he said something like, well,
go home and make sure they're not there.
Q. And what did you do when you went home?
A. I went home and I searched through some of my papers,
and--and the drafts of notes I found, I sort of--I got rid of
some of the notes that day.
Q. So you threw them away?
A. Mm-hmm.
THE REPORTER: Is that a ``yes''?
THE WITNESS: Yes. Sorry.
Thank you. This goes to the overall pattern of obstruction.
It goes to credibility. I believe it is relevant in this case.
I yield to Mr. Graham.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Graham.
Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. How much
time do I have?
The CHIEF JUSTICE. You have 18 minutes and some seconds.
Mr. Manager GRAHAM. I may yield back some of the seconds, I
hope.
[Laughter.]
Point of agreement, rebuttal is to refocus, and the law
allows that for the person or the party with the burden. And we
do have the burden.
Point of agreement, White House counsel says there is much
more that we need to know. There is much more we need to know.
White House counsel said strongly, when these proceedings
opened up, the President is not guilty of obstruction of
justice, the President is not guilty of perjury. Refocus: No
fair-minded person, in my opinion, could come to any other
rational conclusion than that our President obstructed justice,
that our President committed perjury in front of a grand jury.
You vote your conscience. I have told you to do so. If we
disagree at the end of the day, that is America at its best. I
have never suggested there was any reasonable doubt that this
President committed crimes. I will ask you at the conclusion of
this case to remove him with a clear conscience. You vote your
conscience, and I know it will be clear.
Refocus: The gifts. Simply put, if you believe the
President of the United States, in his grand jury testimony,
said: I told her, look, the way these things work is when a
person gets a subpoena, you have to give them whatever you
have. That's what the law is, if you believe that, we need to
congratulate our President because he did, in fact, state the
law correctly, he fulfilled his obligation as Chief Executive
Officer of the land. He fulfilled his obligation as an
honorable person by telling someone, who happened to be Ms.
Lewinsky: You are doing a bad thing here even by suggesting we
do something with these gifts. You need to turn them over
because that is what the law says.
If you believe that, that is the only time he really
embraced the law in this case, as I can see. Everything about
him, in the way he behaved, was 180 degrees out from that
statement. That is the most self-serving statement that flies
in the face of every action he took for months. The truth is
that a reasonable person should conclude that when Ms. Lewinsky
approached him about what to do with the gifts, he said: I'll
have to think about that. And you know what, ladies and
gentlemen, he thought about it. And do you know what he did
after he thought about it.--Betty, go get those gifts. And they
wound up under the bed of the President's secretary. And the
people are wondering what the heck happened here? What the heck
happened here is you have a man trying to hide his crimes.
Affidavit--where I come from, if you call somebody at 2:30
in the morning, you are up to no good.
[Laughter.]
That will be borne out, if you listen to the testimony and
use your common sense. He was up to no good. He told her: My
heart is breaking because you are on this witness list and
maybe here's a way to get out of it. That is the God's truth.
That is what he did. That is wrong. That is a crime.
The rule of law, what does it mean? It means that process
and procedure wins out over politics and personality. That
means that subpoenas have to be honored by the great and the
small. That means when subpoenas come, you can't, as the
President, try to defeat them because you are nobody special in
the eyes of the law--except that you are the guardian of the
law. If you are special, you are special in a more ominous way,
not a lesser way.
When you file an affidavit in a court of law, nobody,
because of their position in society, has the right to cheat
and to get somebody to lie for them, even as the President.
That means we are not a nation of men or kings, we are a nation
of laws. And that is what this case has always been about to
me.
This affidavit was false for a reason--because the
President and Ms. Lewinsky wanted it to be false.
The job search? ``Mission accomplished,'' says it all.
``Mission accomplished.'' It went from being no big deal to the
biggest deal in the world with a telephone bill. I don't know
what the telephone bill was to get this job, but it was huge.
``Mission accomplished.''
All these are crimes. All these are things that average
Americans should not be allowed to do. But I am going to tell
you something. At this point in time what is going on is that
he is trying to conceal a relationship about the workplace that
would be embarrassing and that would be illegal and that would
help Ms. Jones and would hurt him. And it is not just about his
private life. But you can say this about the President, he was
trying to get her a job and he was trying to just get her to
file a false affidavit so this would go away. And he was trying
to hide the gifts. That is bad but that is not nearly as bad as
what was to come.
Let me tell you what was to come, ladies and gentlemen.
After the deposition, when it was clear that Ms. Lewinsky may
have been talking, or somebody knew something they weren't
supposed to know, the alarm bells went off and concealing the
relationship changed to redefining the relationship. That is
why he should not be our President. The redefining of the
relationship began very quickly after that deposition. It
started with the President's secretary, and it goes like this:
The President, on two occasions, under the guise of refreshing
his memory, makes the following 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.
If you believe that is about refreshing your memory, you
are not being reasonable. That is about coaching a witness. But
here is where it gets to be nasty. Here is where it gets to be
mean: ``Monica came on to me, and I never touched her, right?
She wanted to have sex with me, and I couldn't do that.'' He
didn't say it once, he said it twice, just to make sure Ms.
Currie would get the point.
Now that Ms. Lewinsky may be a problem, let me tell you how
the discussion goes. It is not from concealing; now it is
redefining.
Conversation with Mr. Morris, after they did the poll about
what to do here, and ``We just have to win.'' The President had
a followup conversation with Mr. Morris during the evening of
January 22, 1998, the day after the story broke, when Mr.
Morris was considering holding a press conference to blast Ms.
Lewinsky out of the water. The President told Mr. Morris to be
careful, to be careful. According to Mr. Morris, the President
warned him not to be too hard on Ms. Lewinsky because ``there
is some slight chance that she may not be cooperating with Mr.
Starr and we don't want to alienate her by anything we are
going to put out.'' In other words, don't blast her now, she
may not be a problem to us.
During this period of time, it went from concealing to
redefining. When he knew he had to win, what did he do? He went
to his secretary and he made her a sexual predator and him an
innocent victim, and he did it twice. But did he do it to
anybody else? Did he redefine his relationship to anybody else?
I now would like to have a clip from Mr. Blumenthal,
please.
[Text of videotape presentation:]
Q. You have a conversation with the President on the same
day the article comes out, and the conversation includes a
discussion about the relationship between him and Ms. Lewinsky,
is that correct?
A. Yes.
Next tape:
Q. Now, you stated, I think very honestly, and I appreciate
that, you were lied to by the President. Is it a fair
statement, given your previous testimony concerning your 30-
minute conversation, that the President was trying to portray
himself as a victim of a relationship with Monica Lewinsky?
A. I think that's the import of his whole story.
Ladies and gentlemen, that is the import of his whole
story. That story was told on the day this broke in the press,
and it goes on. That story is very detailed. It makes him the
victim of a sexual predator called Ms. Lewinsky. He had to
rebuff her. She threatened him. And it goes on and on and on. I
have always wondered, how did that story make it to the grand
jury and how did it make it into the press? We know how it made
it to the grand jury, because Mr. Blumenthal told it, and the
President told him, and they claimed executive privilege, and
the President never straightened it out. Your President
redefined this relationship, and your President let that lie be
passed to a grand jury. Your President obstructed justice in a
mean way.
Next statement.
[Text of videotape presentation:]
Q. That's where you start talking about the story that the
President told you. Knowing what you know now, do you believe
the President lied to you about his relationship with Ms.
Lewinsky?
A. I do.
Q. Okay. Do you have any idea how White House sources are
associated with statements such as ``She's known as `Elvira',''
``She's obsessed with the President,'' ``She's known as a
flirt,'' ``She's the product of a troubled home, divorced
parents,'' ``She's known as `The Stalker'''? Do you have any
idea how that got in the press?
MR. BREUER: I'm going to object. The document speaks for
itself, but it's not clear that the terms that Mr. Lindsey has
used are necessarily--any or all of them--are from a White
House source. I object to the form and the characterization of
the question.
MR. GRAHAM: The ones that I have indicated are associated
with the White House as being the source of those statements
and--
SENATOR SPECTER: Senator Edwards and I think that question
is appropriate and the objection is overruled.
THE WITNESS: I have no idea how anything came to be
attributed to a White House source.
Everybody wants this over so bad you can taste it,
including me, but don't let's leave a taste behind that history
cannot stand. It was shouted in this Chamber, ``For God's sake,
vote.''
Let me quietly, if I can, for God's sake, get to the truth;
for God's sake, figure out what kind of person we have here in
the White House; for God's sake, spend some time to fulfill
your constitutional duty so that we can get it right, not just
for our political moment but for the future of this Nation.
When the President redefined this relationship, he did so
by telling a lie. He told a lie to a key White House aide, who
repeated that lie to a Federal grand jury. In our system,
ladies and gentlemen, that is a crime. That lie made it into
the public domain. That lie was mean. That lie would have the
effect of running this young lady over. You think what you want
to think, too, about Ms. Tripp. I agree she is not going to be
in the hall of fame of friends, but let me tell you, the best
advice she gave that young lady was to keep that blue dress.
The final thing is that our President, in my opinion, and
for you to judge, in August of last year, after being begged
not to by many Members of this body and prominent Americans,
appeared before a Federal grand jury to answer for his conduct
in this case. We have alleged that with forewarning and
knowledge on his part, that instead of clearing it up and
making America a better place, instead of fulfilling his role
as the chief law enforcement officer of the land to do honor to
the law, instead of taking this burden off all Americans'
backs, he told a story that defies common sense, that he played
a butchery game with the English language that ``is'' maybe is
not is, and ``alone'' is not alone, and he told John Podesta,
``My relationship with Ms. Lewinsky was not sexual, including
oral sex.''
He went on and told an elaborate farce to a Federal grand
jury that they just didn't ask the right question and really
the sexual relationship did include one thing but not another.
And he says he never lied to his aides, and he says he never
lied to the grand jury. Well, God knows he lied to somebody,
and he lied to that grand jury, and this whole story is a fraud
and a farce. The last people in the United States to straighten
it out is the U.S. Senate. God bless you in your endeavors.
Mrs. BOXER addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
California.
Mrs. BOXER. In light of the negative comments made against
Mr. Jordan by Manager Hutchinson and Manager Graham, I ask once
again unanimous consent that in fairness--
Mr. GREGG. Regular order.
Mr. LOTT. Regular order.
The CHIEF JUSTICE. Regular order of business has been
called for.
Mrs. BOXER. I ask unanimous consent that, in fairness, Mr.
Jordan's 2-minute testimony regarding his own integrity be
shown to the Senate at this time.
The CHIEF JUSTICE. Is there objection?
Mr. GREGG. I object.
The CHIEF JUSTICE. Objection is heard.
Mr. LOTT. Mr. Chief Justice, has all time been used or
yielded back?
The CHIEF JUSTICE. All time has been used or yielded back.
notice of intent to suspend the rules of the senate by senator lott
In accordance with Rule V of the Standing Rules of the
Senate, I (for myself, Mr. Daschle, Mrs. Hutchison, Mr. Harkin,
Mr. Wellstone, Ms. Collins, Mr. Specter, and Mr. Leahy) hereby
give notice in writing that it is my intention to move to
suspend the following portions of the Rules of Procedure and
Practice in the Senate When Sitting on Impeachment Trials in
regard to any deliberations by Senators on the articles of
impeachment during the trial of President William Jefferson
Clinton.
(1) The phrase ``without debate'' in Rule VII;
(2) the following portion of Rule XX: ``, unless the Senate
shall direct the doors to be closed while deliberating upon its
decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motion shall
be voted on without debate by the yeas and nays, which shall be
entered on the record''; and
(3) In Rule XXIV, the phrases ``without debate'', ``except
when the doors shall be closed for deliberation, and in that
case'' and ``, to be had without debate''.
program
Mr. LOTT. That concludes the presentations for today. The
Senate will reconvene as a Court of Impeachment on Monday at 1
p.m. At that time, the managers and White House counsel will
proceed to closing arguments for not to exceed 3 hours each and
further business will resume after that.
------
ADJOURNMENT UNTIL 1 P.M. MONDAY, FEBRUARY 8, 1999
Mr. LOTT. I ask unanimous consent that the Court of
Impeachment stand adjourned under the previous order.
There being no objection, at 5:06 p.m. the Senate, sitting
as a Court of Impeachment, adjourned until Monday, February 8,
1999, at 1 p.m.
------
SUPPORT OF MOTION TO DISMISS ARTICLES OF IMPEACHMENT
Mr. DODD. Mr. Chief Justice, last week the Senate, sitting
as a Court of Impeachment, voted on Senator Byrd's motion to
dismiss the articles of impeachment brought by the managers
from the House of Representatives. I voted in support of this
motion, and would like to briefly state my position on this
important question.
While the motion failed, it received the support of 44
Senators--11 more votes than needed to acquit the President of
the charges made by the articles. Therefore, this vote
demonstrates to a near certainty that there are insufficient
votes to support the managers' position that the President
should be convicted.
This result comes as a surprise to no one--including most,
if not all, of those who support the President's removal. These
articles should never have been presented to the Senate. The
President's actions were undoubtedly reprehensible. They
deserve condemnation and may warrant prosecution after he
leaves office. But they do not warrant removal--a sanction
unprecedented in our Nation's history, and one that the framers
of our Constitution envisioned would be used in only the rarest
of circumstances to protect the country.
The case presented by the managers is fatally deficient in
three respects:
First, the facts presented, even if viewed in the light
most favorable to the managers' case, do not allege conduct
that meets the high standard laid out by the framers for the
impeachment, conviction, and removal from office of a
President.
Second, the articles as drafted are vague and contain
multiple allegations--denying the President the fairness and
due process that is the right of every American citizen, and
depriving Senators of the clarity that is essential to
discharging their responsibility as triers of fact.
Third, the managers have failed to present facts that meet
their heavy burden of proving the allegations contained in the
articles.
Let me address these points in turn.
The conduct alleged by the managers to be worthy of
conviction arises out of a private, civil lawsuit and a
private, consensual, yet improper relationship between the
President and Ms. Monica Lewinsky. It is the President's
conduct in that lawsuit and in that relationship that are the
basis of the charges at issue here. No charges arise from his
official conduct as President.
It is worth noting that, with regard to the Jones matter,
the Supreme Court itself considered the conduct alleged therein
to be private. The Court ruled that, while the President may
delay or avoid until leaving office lawsuits based on his
official conduct, he may claim no such immunity in an action
based on private conduct unrelated to official duties.
The managers claim that what is at issue is not the
President's private actions but his actions in connection with
efforts to prevent his relationship with Ms. Lewinsky from
becoming known to his family and others. These actions, the
managers argue--including his testimony in the grand jury and
his statements to staff and others--are official in nature.
However, these actions clearly arise out of the President's
efforts to keep secret a personal relationship which he
admitted to be wrong. Under no reasonable analysis can they be
understood to relate to the President's official duties.
It follows, then, that the President's actions certainly do
not rise to the level of ``treason, bribery or other high
crimes and misdemeanors'' set forth by the framers as the
standard for removing a President from office. As Alexander
Hamilton explained, impeachment is to be reserved as ``a remedy
for great injuries done to the society itself''. The
impeachment process is intended to protect the Nation from
official wrongdoing, not punish a President for personal
misconduct.
It is not in my view reasonable to conclude that the
President's actions--while by his own admission wrong and
offensive--pose a danger to the institutions of our society.
The President's past behavior did not--and his continuation in
office does not--pose a threat to the stability of those
institutions.
Indeed, I submit that convicting and removing the President
based on these actions, not the actions themselves, would have
a destabilizing effect on our institutions of government. Were
this scenario to come to pass, then henceforth any President
would have to worry that he or she could be removed on a
partisan basis for essentially personal conduct. That standard
would weaken the Presidency. In the words of Madison, it would
in effect make the President's term equivalent to ``a tenure
during pleasure of the Senate'', and upset the careful system
of checks and balances established by the framers to govern
relations between the legislative and executive branches.
The articles also deserve to be dismissed because of the
fatally flawed manner in which they are drafted. Those flaws
are of two separate kinds.
First, the articles fail to allege wrongdoing with the kind
of specificity required to allow the President--or indeed, any
person--to defend himself, and to allow the Senate to fully
understand and judge the charges made against him. White House
counsel described the articles as an ``empty vessel'', a
``moving target'' where neither the President nor the Senate
knows with precision what has been alleged. Senators were
presented with videotaped testimony of former Federal
prosecutors who stated that standard prosecutorial practice
requires that allegations of perjury and obstruction must be
stated with particularity and specificity. The allegations here
have not been so stated. That lack of specificity is manifestly
unfair to the President. And it is detrimental to the Senate's
ability to discharge its responsibility as the trier of fact in
this case.
The second fatal structural flaw in the articles is that
the managers have aggregated multiple allegations of wrongdoing
into single articles. Article I allows the President to be
impeached for ``one or more'' of four enumerated, unspecified
categories of alleged misconduct. Similarly, in article II he
is alleged to have obstructed justice in ``one or more'' of
seven ways. This smorgasbord approach to the allegations
creates the deeply troubling prospect that the President could
be convicted and removed without two-thirds of the Senate
agreeing on what precisely he did wrong. For this reason, too,
dismissal is appropriate.
Dismissal is, finally, appropriate because the facts
undergirding the managers' case do not prove the criminal
wrongdoing the managers allege. Manager McCollum told the
Senate that it must first find criminal wrongdoing and then
determine whether to remove the President from office. While it
is left to each Senator to determine the standard of proof he
or she will use to judge the evidence, Manager McCollum's own
analysis suggests that that standard should be beyond a
reasonable doubt. After all, that is the standard used in all
other criminal cases. Why should the President be subjected to
any lower standard than that to which all citizens are
entitled? Indeed, he should not--not only because he deserves
no less fairness than other citizens, but also because this
high standard of proof is appropriate to the gravity of the
sanction the Senate is being asked to impose.
In my view, the managers have failed to prove criminal
culpability on the part of the President beyond a reasonable
doubt. The record is replete with exculpatory, contradictory,
and ambiguous facts.
Consider, for example, these:
(1) Ms. Lewinsky--who was questioned some 22 times by
investigators, prosecutors, and grand jurors (not to mention
twice by the managers themselves)--said under oath that neither
the President nor anyone else ever asked her to lie.
(2) She also said--again, under oath--that no one ever
promised her a job for her silence.
(3) Further, she stated without contradiction that the
President did not suggest that she return the gifts given her
by the President to him or anyone else on his behalf.
(4) Betty Currie, the President's secretary--who was
questioned some nine times--likewise testified that the
President did not suggest that the gifts to Ms. Lewinsky be
returned.
(5) She also said that she never felt pressure to agree
with the President when he spoke with her following the Jones
deposition, and, indeed, felt free to disagree with his
recollection.
(6) Lastly, the managers argued that a December 11, 1997
ruling by the judge in the Jones case, permitting the calling
of witnesses regarding the President's conduct, triggered
intensive efforts that very day by the President and Vernon
Jordan to help Ms. Lewinsky find a job. We now know that the
facts contradict that account of the managers. A meeting on
that date between Mr. Jordan and Ms. Lewinsky was scheduled 3
days earlier. It was held several hours before the judge's
ruling. At the time of that ruling, Mr. Jordan was on an
airplane bound for Holland.
In addition, factual discrepancies between the President
and Ms. Lewinsky--about when their relationship began, about
the nature of the inappropriate contacts between them, about
the number of those contacts, and about the number of
inappropriate telephone calls between them--amount to
differences in recollection that in no way can be considered
criminal on the part of the President. More fundamentally, they
cannot be considered material to this proceeding. Not even the
Office of Independent Counsel considered these discrepancies
relevant or material to the matter at hand. It cannot
reasonably be argued, in any event, that the President should
be removed from his office because of them.
For all of these reasons--the failure of the managers to
prove beyond a reasonable doubt that the President committed
criminal wrongdoing, the structural flaws in the articles
themselves, and the failure of the allegations, even if proven,
to warrant the unprecedented action of conviction and removal--
these articles should be dismissed. We have reviewed enough
evidence, heard enough arguments, and asked enough questions to
know with reasonable certainty that the flaws in the managers'
case cannot be remedied. We know enough to decide this matter
now. The national interest is best served not by extending this
proceeding needlessly, but by ending it.
I regret that the Senate has failed to do that. But I
continue to believe that we must dispose of this matter as soon
as possible so we can return to the other important business of
the Nation.
------
OPPOSITION TO MANAGERS' MOTION FOR THE APPEARANCE OF WITNESSES
Mr. DODD. Mr. Chief Justice, last week the Senate, sitting
as a Court of Impeachment, voted on a motion by the managers
for the appearance of witnesses and to admit evidence not in
the trial record. I opposed this motion, and would like to
briefly state my reasons for doing so.
While the motion carried, the fact that it was opposed by
44 Senators demonstrates that a large number of our colleagues
believe that the record of this case is sufficient to allow
Senators to decide on the articles of impeachment. Indeed, it
is not merely sufficient, it is voluminous. As I will discuss
more fully below, neither the managers nor counsel for the
President would in any way be harmed by a requirement that they
rely on the record as presently constituted.
Let me concede at the outset that this motion is not an
easy one to decide. There is an argument to be made for calling
witnesses. Our colleagues who believe there ought to be
witnesses are motivated by earnest reasons.
However, the issue for us is not whether there is a case
for witnesses. It is this: Do we need to hear from witnesses in
order to fulfil our responsibility as triers of fact? The
answer to that question, in my opinion, is no. We know enough
to decide this case, and decide it now.
There may be legitimate reasons for calling witnesses. But
the reasons for not calling them are compelling.
There are five reasons, in particular, that strongly argue
against the motion.
First, the record is more than sufficient to allow the
Senate to decide this case. We are all painfully familiar with
the essential details of this matter. Like most Americans, we
have been subjected to the blizzard of media attention paid to
it from its very start just over a year ago.
This is not 1868, when only a handful of people could
witness the last Presidential impeachment. One hundred and
thirty years later, we can receive an independent counsel's
voluminous and graphic report over the Internet literally at
the moment it is made available to the public. We can witness
the proceedings of the House Judiciary Committee live on
television. We can observe the televised impeachment
proceedings in the House Chamber as if we are there.
This trial is now in its fourth week. We have been provided
with massive portions of a record that exceeds 67,000 pages in
length. We have heard days of arguments. Ninety of us have
asked some 105 questions to the House Republican managers and
to counsel for the President.
So I daresay that the facts of this case have been drilled
into our consciousness--relentlessly, overwhelmingly, and, it
seems endlessly.
I should add one more adverb: repeatedly. That leads to the
second reason for not calling witnesses: they have testified
repeatedly and without contradiction on the key facts.
Again and again, the record shows the same questions asked
of the same witnesses. Ms. Lewinsky has been questioned a total
of 23 times; Ms. Currie 9 times; Mr. Jordan 6 times; and Mr.
Blumenthal 5 times. They were asked hundreds upon hundreds of
questions--by some of the toughest, shrewdest legal minds in
the country. Their testimony fills in excess of two 2,500 pages
of the trial record.
What is the likelihood that prolonging this trial to hear
from these and possibly other witnesses will bring new details
to light that could change the outcome of this trial? Regarding
at least one witness--Ms. Lewinsky--we know from her interview
by the managers two weekends ago: virtually nil.
A third reason to oppose this motion is that witness
testimony will invite the introduction of salacious details
onto the floor of the U.S. Senate--details with which we are
already painfully familiar, and details about which any
differences between the President and Ms. Lewinsky are
immaterial and irrelevant to the charges contained in the
articles presented by the House Republican managers.
The managers tell us that they have no interest in raising
any such details. But sexual misconduct is at the core of this
case. Manager Bryant admitted as much when he said on the floor
that the issue in article I is ``perjury about sex''. The same
could be said about article II--the issue is obstruction about
sex.
Every question about perjury or obstruction, then,
necessarily invites testimony about the sexual details of this
scandal. Given the massive size of the record, I do not think
we need to risk allowing the Senate to become a forum for that
kind of speech. It will not bring dignity to this proceeding or
credit to this institution.
If we somehow think that we can summon witnesses to appear
in this trial and at the same time guarantee that the Senate
will not become a kind of burlesque stage for the airing of
this case's tawdry factual essence, let me remind my colleagues
of the frenzied circus that formed immediately upon the news
that Ms. Lewinsky had arrived in Washington, D.C. for
questioning by the managers. Once the door to witnesses is
opened, the Senate will be hard-pressed to keep that atmosphere
from spilling into this trial and this body.
The fourth reason why we should not call witnesses is that
they will prolong this process needlessly and extensively.
Senator Warner made the point well several days ago: It is
questionable whether the list of witnesses, and the time
required to hear from them, could be strictly limited because
to do so might deny the President his right to defend himself.
The point was echoed by one of the attorneys for the
President. He stated that he and his associates would be
committing ``malpractice'' if they failed to seek the most
aggressive possible discovery process should that course be
opened to them.
That discovery process may reasonably be expected to
include subpoenas for documents, interviews with corroborating
witnesses, depositions, examinations and cross-examinations. As
any person familiar with litigation knows, such a process is
not easily restricted in time and scope. It could take weeks,
or longer, to conclude. During that time, Senators would not
necessarily be free from the burdens of serving as triers of
fact in the Court of Impeachment. They could well be called
upon to make any number of evidentiary rulings. They could be
called upon to comment publicly on matters raised during
depositions--including on salacious matters that deserve no
comment. In short, this process could drag on and on.
Fifth, and finally, let me say that I remain unconvinced by
the argument of the managers that witnesses are so critical
here. They have failed convincingly to explain why witnesses
are so indispensable in this trial if they were so dispensable
during the impeachment proceedings in the other body.
During those proceedings, Mr. Manager Hyde said that ``the
most relevant witnesses have already testified at length about
the matters in issue. And in the interest of finishing our
expeditious inquiry, we will not require most of them to come
before us to repeat their testimony.'' Regarding Monica
Lewinsky and Linda Tripp, he added that they ``have already
testified under oath. We have their testimony. We don't need to
reinvent the wheel.''
Likewise, Mr. Manager Gekas stated during the House
hearings that ``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.''
The fervor with which the managers call for witnesses now
is not only inconsistent with their refusal to call them
earlier, it is also inconsistent with their underlying
assertion that the facts in evidence already prove the
President's criminal culpability. If the managers have any
doubt about whether their evidence was sufficient to prove
guilt and justify removal, then they had a responsibility to
resolve those doubts in the House of Representatives--before
they came to this body and had us take an oath to do impartial
justice. They should never have put us through this trial.
In conclusion, and at the risk of stating the obvious, we
should remember that we, the Members of the Senate, are the
triers of fact here. We are the ones who control how this trial
is to be conducted. Each side deserves to be treated fairly.
But neither side deserves an unlimited and open-ended right to
put forth their arguments.
I have never known a lawyer arguing a losing case to say he
or she couldn't benefit from one more day in court. The proper
response to a lengthy trial and a weak case is not more length
and more case--it is an end to the case.
Does anyone seriously believe that the outcome of this
proceeding will be changed by allowing a parade of witnesses?
Does anyone seriously believe that they will shed new and
meaningful light on the key areas of this dispute?
After our historic, bipartisan agreement to begin this
trial, after weeks of the trial itself, after the opportunity
to read a massive factual record, after the opportunity to ask
over 100 questions--after all this, I do not believe that
witnesses are now needed to demonstrate the Senate's commitment
to conduct this trial in a fair and thorough manner. The
dignity of this proceeding and the decorum of this institution
are not likely to be enhanced--and could well be damaged--by
taking such a step.
In my view, the managers' motion to call witnesses is the
expression of an increasingly desperate desire to breathe life
into a case that--as the vote on the motion to dismiss
demonstrated--has failed to convince anywhere close to two-
thirds of the Senate as to its merit. They are eager for
something, anything, to rescue the sinking ship that their
impeachment has become.
Their motion, furthermore, is an expression of the partisan
process that they began in the House and now seek to perpetuate
in the Senate. Having lost five seats in the November
elections, Republican leaders in the other body, including the
managers, knew that their best chance to impeach the President
was during the lame duck session of the 105th Congress. So they
eschewed a bipartisan inquiry, decided not to call witnesses,
and forbade Members from considering a censure resolution in
that Chamber--all so they could force a vote on articles of
impeachment before the start of the 106th Congress. Two of the
articles considered failed. Two others passed, but only by
exceedingly slim margins: the article alleging obstruction of
justice would have failed if just five Representatives had
voted differently; the article alleging perjury would have
failed if just 11 Representatives had cast their vote against
impeachment.
Having rushed to judgment in the House, the managers now
rush to delay judgment in the Senate. Why? I think the reason
is obvious: because they know that their case is weak. From the
moment the articles were drafted in the House, they have
attempted to obscure that inescapable fact.
Each side of this dispute has now had ample opportunity to
present its case. The time has come to bring this matter to a
close, and return to the other compelling issues that we were
elected to address. While I regret that the majority party in
the Senate has decided to move forward with the calling of
witnesses and gathering of additional information, I remain
hopeful that we can conclude this trial at the earliest
possible opportunity.
------
Monday, February 8, 1999
[From the Congressional Record]
The Senate met at 1:06 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Almighty God, guide the Senators today as they move closer
to the completion of this impeachment trial and confront some
of the most difficult decisions of their lives. Give them
physical strength and mental fortitude for this day. In
anticipation of Your burden-lifting blessing, we place our
trust in You.
We renew our prayers for peace in the Middle East. Thank
You for the life and leadership of King Hussein of Jordan, that
persistent peacemaker and emissary of light in the often dim
negotiations for just peace. Now at this time of his untimely
death, we pray for the people of Jordan and for his son, King
Abdullah, as he assumes the immense challenges of leadership.
In Your holy Name. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Order of Procedure
Mr. LOTT. This afternoon the Senate will resume
consideration of the articles of impeachment. Pursuant to S.
Res. 30, the Senate will proceed to final arguments for not to
exceed 6 hours, equally divided between the House managers and
the White House counsel.
At the conclusion of those arguments today, I expect the
Senate to adjourn the impeachment trial until tomorrow. We
expect tonight, when we go out of the impeachment trial, to
have a period for legislative business so we can pass a
resolution or consider a resolution with regard to King
Hussein.
Order for Tuesday, February 9, 1999
Mr. LOTT. I now ask unanimous consent that when the Senate
completes its business today, it stand in adjournment, to
reconvene as a Court of Impeachment at 1 p.m. on Tuesday,
February 9, 1999.
The CHIEF JUSTICE. Without objection, it is so ordered.
Unanimous Consent Request
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the February 5, 1999, affidavit of Mr. Christopher Hitchens and
the February 7, 1999, affidavit of Ms. Carol Blue be admitted
into evidence in this proceeding.
The CHIEF JUSTICE. Is there objection?
Mr. DASCHLE. At this juncture in the trial, I am compelled
to object.
The CHIEF JUSTICE. Objection is heard.
Mr. LOTT. I believe we are ready to proceed, Mr. Chief
Justice.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Sensenbrenner.
Mr. Manager SENSENBRENNER. Mr. Chief Justice, distinguished
counsel for the President, and Senators, I am Congressman Jim
Sensenbrenner. I represent 580,000 people in southeastern
Wisconsin in the U.S. House of Representatives. During my
entire service in Congress, I have served as a member of the
Committee on the Judiciary of the House of Representatives.
We are nearing the end of a long and difficult process. The
Senate has considered for the past several weeks the grave
constitutional responsibility to determine whether the actions
of President Clinton merit his conviction and removal from
office. The Senate has been patient, attentive and engaged
throughout this unwelcome task, and for this the House managers
are grateful. The managers also thank the distinguished Chief
Justice for his patience and impartial demeanor throughout this
trial.
At the outset of the managers' closing arguments, it is
important to distinguish what has caused only the second
Presidential impeachment in history from extraneous matters
that bear no relation to the verdict the Senate will shortly
reach. When this trial began 4 long weeks ago, we said that
what was on trial was the truth and the rule of law. That has
not changed, despite the lengthy legal arguments you have
heard. The truth is still the truth and a lie is still a lie.
And the rule of law should apply to everyone no matter what
excuses are made by the President's defenders.
The news media characterizes the managers as 13 angry men.
They are right in that we are angry, but they are dead wrong
about what we are angry about. We have not spent long hours
poring through the evidence, sacrificed time with our families
and subjected ourselves to intense political criticism to
further a political vendetta. We have done so because of our
love for this country and respect for the Office of the
Presidency, regardless of who may hold it. We have done so
because of our devotion to the rule of law and our fear that if
the President does not suffer the legal and constitutional
consequences of his actions, the impact of allowing the
President to stand above the law will be felt for generations
to come.
``The Almanac of American Politics'' has called me ``a
stickler for ethics.'' To that, I plead guilty as charged
because laws not enforced are open invitations for more serious
and criminal behavior. This trial was not caused by Kenneth
Starr, who only did his duty under a law which President
Clinton himself signed. It was not caused by the House
Judiciary Committee's review of the independent counsel's
mountain of evidence. Nor was it caused by the House of
Representatives approving two articles of impeachment, nor by
the Senate conducting a trial mandated by the Constitution.
Regardless of what some may say, this constitutional crisis
was caused by William Jefferson Clinton and by no one else.
President Clinton's actions, and his actions alone, have caused
the national agenda for the past year to be almost exclusively
concentrated on those actions and what consequences the
President, and the President alone, must suffer for them.
This trial is not about the President's affair with Monica
Lewinsky. It is about the perjury and obstruction of justice he
committed during the course of the civil rights lawsuit filed
against him, and the subsequent independent counsel
investigation authorized by Attorney General Janet Reno.
The President has repeatedly apologized for his affair, but
he has never, never apologized for the consequences of the
perjury and obstruction of justice he has committed. Perhaps
those decisions were based upon a Dick Morris public opinion
poll which told the President that the American people would
forgive his adultery but not his perjury. Perhaps it was for
another reason. Whatever the White House's motivations were,
the fact remains that the President's apologies and the
statements of his surrogate contritionists have been carefully
crafted for the President to continue to evade and, yes, avoid
responsibility for his deceiving the courts to prevent them
from administering justice.
Because the President's actions to obstruct justice are so
egregious and repeated, many have ignored his grand jury
perjury, charges before you in article I. I wish to point out
four glaring examples of William Jefferson Clinton's
perjurious, false and misleading statements to the grand jury
and not at the civil deposition in the Paula Jones case.
First, the President lied under oath to the grand jury when
he falsely testified about his attorneys' use of a false
affidavit at his deposition. Second, he lied under oath to the
grand jury about his conversations with Betty Currie. Third, he
lied under oath to the grand jury about what he told his aides
about his relationship with Ms. Lewinsky, knowing that those
aides would be called to testify to the grand jury. Fourth, he
lied under oath to the grand jury when he testified about the
nature of his relationship with Ms. Lewinsky.
An ordinary citizen who lies under oath four times to a
grand jury is subject to substantial time in a Federal prison.
The decision each Senator must make with respect to article I
is whether the President is to pay a price for his perjury,
just like any citizen must. The President's defenders and spin
doctors would have you believe that the President told all of
these lies under oath to protect himself and his family from
personal embarrassment, and even if he did tell a lie, it was
not that bad a lie.
Senators, please remember that the President's grand jury
appearance was over 6 months after the news media broke the
story about the President's affair with Ms. Lewinsky. By August
17, few people doubted that he had an affair with her. There
was little left to hide. And he lied after practically everyone
who was asked--including many of you--advised the President to
tell the truth to the grand jury. And still he lied.
We have heard a litany of excuses, including the President
saying he was not paying a great deal of attention and that he
was trying to figure out what the facts were, and that he
needed to know whether his recollection was right, and that he
had not done anything wrong. And on and on. The President knew
what had happened. If Monica Lewinsky came on to him and made a
sexual demand upon him and he rebuffed her, as he told Sidney
Blumenthal, he would have nothing to apologize for.
Senators, don't be fooled by the President's excuses and
spin control. The facts and the evidence clearly show that he
knew what he was doing was to deceive everyone, including the
grand jury. He and his defenders are still in denial. They will
not accept the consequences of his repeated and criminal
attempts to defeat the judicial process. His lies to the grand
jury were not to protect his family or the dignity of his
office but to protect himself from criminal liability for his
perjury and obstruction of justice in the Jones case.
Over 9 years ago, the Senate removed Judge Walter Nixon
from office for about the same offense--lying under oath to the
grand jury. The vote in the Senate was 89-8 in favor of Judge
Nixon's removal, with 48 current Senators and Vice President
Gore voting guilty. To boot a Federal judge from office while
keeping a President in power after the President committed the
same offense sets a double standard and lowers the standard of
what the American people should expect from the leader of their
country. To conclude that the standard of Presidential
truthfulness is lower than that of a Federal judge is absurd.
To conclude that perjury and obstruction of justice are
acceptable if committed by a popular President during times of
peace and prosperity sets a dangerous precedent which sets
America on the road back to an imperial Presidency above the
law.
To justify the President's criminal behavior by demonizing
those who seek to hold him accountable ignores the fact that
President Clinton's actions, and those actions alone,
precipitated the investigations which have brought us here
today. To keep a President in office whose gross misconduct and
criminal actions are a well-established fact will weaken the
authority of the Presidency, undermine the rule of law, and
cheapen those words which have made America different from most
other nations on the Earth: equal justice under law.
For the sake of our country and for future generations,
please find the President guilty of perjury and obstruction of
justice when you cast your votes.
the journal
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Cannon.
If you will wait a moment, Mr. Manager Cannon. If there is no
objection, the Journal of the proceedings of the trial is
approved to date. Please go ahead.
Mr. Manager CANNON. Mr. Chief Justice, counsel to the
President, Members of the Senate, my name is Christopher B.
Cannon, and I represent over 600,000 people in the Third
District of Utah.
I want to begin with a couple of thank-yous. First, I thank
you Senators for your attention during this series of
presentations. I know that you all have deep conflicts over the
matter before you. Some of you have made strong and public
statements about it. But you have all paid extraordinary
attention, and for that I thank you.
I also thank the other members of the management team. It
has been a remarkable experience to have been associated with
them during the last 5 months--almost as good, I might say, as
it would have been to have been home with my wife, children,
and our new baby.
I want to share with you a recent family experience. I have
been home just about a little over a day out of the last 3
weeks. It took my 10-month-old baby a little while to warm up
to me when I was home last. Later, as I started packing, she
realized I was leaving again and she insisted that I hold her.
I think she felt that if she held on, I wouldn't disappear.
Unfortunately, she fell asleep during the trip to the airport.
I know that the other managers have had similar disruptions in
their families. For instance, Charles Canady's wife had a baby
during the trial.
I, therefore, thank my wife and children, and the wives and
children of all of the managers for their forbearance and
support during this process. Like us, they believe in the
obligation we have to assure good government. I might say that,
like us, they are grateful that the managers' role is ending.
For the managers, this process is almost done. I hope that
history will judge that we have done our duty well. We have
been congratulated and condemned. But we are done.
While our difficult role is ending, yours is just
beginning. While I am certain that sitting here silently has
been difficult, the truly daunting task before you now is to
conclude this trial with some sense of legitimacy. For America
is deeply divided, and the end result of an impeachment trial
was designed by the Founding Fathers to salve those wounds.
Traditionally, after an airing of the facts and a vote by the
Senate, either a President is removed or he is vindicated. In
this case, it seems, neither of those results may be realized.
While the facts are clear that the President committed perjury
and obstruction of justice, it is equally clear that this body
may not remove him from office. From this perception, you face
the challenge of legitimizing the end result. Your vote will
end this matter. It is nonjusticiable. Whatever your decision
is, it cannot be undone. The outcome will be right by
definition. But how well you do the work of divining that
outcome will affect the way we as a nation deal with the
divisions among us.
To proceed in a manner that will be trusted, and viewed as
legitimate by the American people, you must deal with the
differences between this proceeding and prior impeachment
trials. You must do this with an obvious commitment to your
oath to do justice impartially according to the Constitution
and the law. The law includes the rules and precedents of the
Senate.
Senate Resolution 16 made this process different from all
of the preceding 13 Senate trials on impeachment, principally
by removing from the managers the right to present our case as
we see fit. I suspect that the lewd subject matter and the
partisan fight in the House may have influenced your decision.
But there is an integrity to the historic rules and reasons
for them. For instance, the Senate by nature will be divided in
the impeachment proceedings while the managers are united. It
is therefore easier for the managers to decide on how to
present their case than for the Senate.
There are other differences in this proceeding from
historic impeachment practice before the Senate. May I list the
changes for you with the intent to help you focus on the goal
of a conclusion that we, the people, will feel is legitimate.
Senate Resolution 16 called for a 24-hour presentation or
``trial,'' that mainly consisted of what the public saw as the
yammering of lawyers. Time was equally divided rather than
sequenced as it is in a trial where opening statements are made
and then evidence is put on through witnesses. In a trial, each
side typically takes the time necessary to establish its case
or undermine the witness through cross-examination. After the
moving party has made its case, the responding party makes it
case. Time is dictated only by what each side feels it needs.
Each witness is subject to whatever cross-examination is
appropriate. The case develops tested piece by tested piece,
and ultimately one side prevails.
Here, the managers had to cut very important portions of
our limited case. We had a limited number of witnesses, limited
to videotaped appearances, limited to fit an arbitrary three
hour rule. That time was lessened because we had to reserve
time for rebuttal.
According to judicial traditions, defendants have to
challenge each witness as they appear, not wrap the credibility
of all in one wide ranging response. In these proceedings, the
Senate has not had the opportunity to assess the credibility of
witnesses as the case developed. The White House then used its
time with long video portions and small cutting accusations.
Who knows what the White House might have done if it had been
able, or found it necessary, to challenge witnesses as they
testified?
Another diversion from judicial and Senate trial precedent
was that the only rebuttal for the managers was what we
reserved after our video presentation and, awkwardly, in the
questioning period where important, complicated issues were cut
off by artificial time limits, while peripheral issues got more
time than they deserved. This questioning period had the
unfortunate side effect of focusing the public on the
partisanship of the Senate.
The problem of the newness of the presentation format was
exacerbated by our new media environment. The Internet with its
immediate and often unvetted content, and cable television with
its perpetual talking heads, gave equal time and equivalency of
weight to the managers and the White House, with no witness
testimony to constrain them. The process gave rise to the
perception that the ``fix was in,'' leaving some to gloat at
having scammed the situation, and others angry at being
unheard.
And that is the context within which the Senate must now
find a legitimate outcome. Given the wide-ranging discussions
of options, it is clear this is no easy task. Will it be:
Adjournment with condemnation?
Findings of fact about the President's behavior?
A bifurcated vote to show agreement with the articles of
impeachment but not removing the President?
A simple up or down on the articles of impeachment?
Or a vote for acquittal followed by censure?
I don't know which, if any, of these options really makes
sense. And I don't know of any other options. I do know that
the issue is grave, and that your responsibility is great.
So I am here today to ask you to set aside some natural
inclinations for the good of the country.
I implore you, Senators, both Republican and Democrat, to
set aside partisanship, politics, polls, and personalities and
exchange them for loftier inclinations--those of ``procedure,''
``policy,'' and ``precedents.'' These are the only guidelines
this body should have.
As the Senate deliberates this case, I ask that a few key
facts never be forgotten:
One. That the President committed perjury when he lied
under oath.
Two. The Senate has historically impeached judges for
perjury--even recently by some of you assembled here.
Three. Any American watching these proceedings who commits
perjury would also be punished by the law.
Four. If the Senate follows our Nation's precedents of
punishing perjurers, and if the Senate follows its own
precedents of convicting perjurers, then there is only one
clear conclusion in this matter: conviction.
Senators, we as Americans and legislators have never
supported a legal system which has one set of laws for the
ruler and another for the ruled. After all, our very own Pledge
of Allegiance binds us together with the language of ``liberty
and justice for all.'' If that is the case, if we intend to
live up to the oaths and pledges we take, then our very own
President must be subject to the precedents our Nation's
judicial system and this Senate body have heretofore set.
Because I love this country and its institutions, I pray
for inspiration for each of you as you seek the proper,
legitimate outcome. May God bless you in the process.
Thank you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Gekas.
Mr. Manager GEKAS. Mr. Chief Justice, colleagues on each
side of the podium, Members of the Senate, if I were to take
some time to thank the Chief Justice for his patience in all
this, would that be counted against my time?
The CHIEF JUSTICE. Yes.
Mr. Manager GEKAS. Then I will send you a note.
[Laughter.]
We do offer our thanks to the Chief Justice.
I come from Pennsylvania, and the people in my district and
the entire State, and the people in their 49 brethren States
across the Nation recognize that there is really only one
issue, with all the fury and the tumult and the shouting and
the invective, the language, and just the plain shouting that
has occurred across the Halls of Congress and every place else
in the country.
It all swoops down the telescope to one issue: Did the
President utter falsehoods under oath? Everyone understands
that. Everyone comes to the conclusion that that is a serious
allegation that has been made through the impeachment, and one
which you must judge in the final vote that you will be
casting.
But why is it important about whether or not the President
uttered the falsehoods under oath? It is important not just to
constitute the basis of perjury, as is alleged, and/or
obstruction of justice, which is alleged, but even if those two
were not proved in all their elements as crimes, you would
still have to consider a falsehood under oath as constituting
an impeachable offense. I say that advisedly.
It starts--my contention does--with the assertions of our
esteemed colleagues who represent the President. Time after
time, and in their briefs and in their statements on and off
the floor, they have stated you need not have a criminal
offense for it to constitute an impeachable offense. They
provided examples of that. They said that all you have to
demonstrate is that an impeachable offense is one that rocks
against the integrity of the system of government. I am
paraphrasing, of course.
I submit--and I feel this so strongly that it bothers me
that I can't make it clear--that to violate the oath as a
witness in a civil case, or a criminal case, in the Jones
matter, or in the grand jury, smashes against the integrity of
our system of government. There are sundry reasons for that.
In this case, if you follow the logic and the extreme
intellectual presentation made by White House counsel that
refutes every item that--or attempts to refute, not refutes--
attempts to refute every item asserted by the managers, if you
believe all of that and are confused or in doubt about the
Jones case and whether lies under oath were committed, or at
the grand jury, you must think about this. This is, to me,
proof positive that the President uttered falsehoods under oath
in all of his public stances.
On December 23, the President, under oath, answered
interrogatories that were sent to him by the court in the Jones
case in which he said, in answer to the question, Have you ever
had sexual relations with anyone in a subordinate role while
you were Governor of Arkansas, or President of the United
States?--this is important. At that time--and the record will
disclose all of this--at that time, there was no definition in
front of him, no gaggle of attorneys trying to dispute what
word meant what, no judge there to interpose the legal standard
that should be employed, but rather the boldfaced, naked phrase
of ``sexual relations'' that everyone in the whole world
understands to be what it is--and the President answered under
oath ``None.''
I submit to the Members of the Senate, if the answer then,
December 23, before ever stepping foot in the deposition of the
Paula Jones case, if he never appeared there, or whatever he
said there was so clouded you can't draw a conclusion,
certainly you can refer back to December 23 and see a starting
point of a pattern of conduct on the part of the President that
proves beyond all doubt that he committed a pattern and actual
falsehoods under oath time and time again.
If that is not enough, on January 15, as the record will
disclose, he answered under oath requests for documents in
which the question is asked under oath, to which the President
responded, Have you ever received any gifts or documents from--
and it mentioned among others Monica Lewinsky--and the
President under oath said ``No'' or ``None.'' The record will
show for sure exactly what he said. But he denied that any
gifts were transferred from, or any documents, or any items of
personalty, from Lewinsky to the President.
I submit to you that if you are confused about that,
because of the great presentation made by the counsel for the
President about the murkiness and cloudiness of the Jones
deposition, the maddening consequences of the President's
testimony--``maddening,'' they said--then you can refer back to
January 15 before the deposition, and December 23, and find
proof positive in the documents already a part of the case that
you have to decide that, indeed, a pattern of falsehoods under
oath was initiated and conducted by the President of the United
States.
That is very important. Those allegations, by the way, have
gone completely uncontradicted by the President of the United
States.
I think they took great delight--these colleagues of mine
on behalf of the President--great delight in saying--at one
point they put the marquee in the sky, that in so many
different ways when Monica Lewinsky said, ``Nobody told me to
lie,'' that was the case for them. What a case they made.
``Nobody told me to lie.'' They won the case right then and
there in their minds, because that was exculpatory and that was
brandishing in this case once and for all, Monica said,
``Nobody told me to lie.''
I am going to take some liberties with the Latin that I
learned in school, and we all learned in college and law
school, ``falsum in unum is falsum in toto,'' meaning if you
say something false in one phase of your testimony, more than
likely the triers of fact can find that you were false in all
of them.
I am going to change that. I think I am right when I say
that ``veritas in unum is veritas in toto.'' So when Monica
Lewinsky says, ``Nobody told me to lie,'' and that is the
indomitable, indestructible truth that the White House counsel
say, that is the case, then it also must be ``veritas in
toto,'' because when she said that she gave gifts to the
President, then you must accept that ``veritas in unum is
veritas in toto.''
That goes on and on and on.
Somebody is waving, ``Cut this short.''
[Laughter.]
It is very tough for me to do that, but I will comply.
I have a witness. I call a witness to bolster my part of
this summation. The witness is the American people.
Mr. Craig, in his last appearance on this podium, was
delighted to be able to quote a poll that showed that 75
percent of the people of our country felt that there was no
need to present videotapes to the Senate in the trial--75
percent, he said with great gusto, of the American people.
Of course the polls of all types were quoted time and time
again by the supporters of the President as showing why you
should vote to acquit. The polls, the polls, the polls.
I now call the American people's poll on whether or not
they believe that the President committed falsehoods under
oath--80 percent of the American people--I call them to my side
here at the podium to verify to you that the President
committed falsehoods under oath.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Chabot.
Mr. Manager CHABOT. Thank you. I am Steve Chabot. I
represent the First District of Ohio, which is Cincinnati.
This week we will likely finally conclude this trial. Has
it been difficult? Yes. Would we all have preferred that none
of this ever happened? Of course. But the President has put our
Nation through a terrible ordeal, and it has been our duty to
pursue this case to its conclusion.
Despite the dire warnings, scare tactics and heavy-handed
threats by those who would circumvent the solemn constitutional
process that we are all engaged in, our great country has
survived. We have finished this trial in just a few weeks. The
economy continues to be strong, and the Nation's business is
getting done.
But, Senators, before you turn out the lights and head
home, you must make one final decision. It is a decision that
should not be influenced by party affiliation or by politics or
by personal ties. It is a decision that should be guided by our
Constitution, by our laws, and by your own moral compass.
A few months ago I stood here in your shoes, as did all the
colleagues here, and the colleagues in the House, preparing to
make what would likely be the most important vote of our
careers. Throughout the process, I did my best to be fair, to
keep an open mind. I listened carefully to the views of my
constituents, the people who sent me to Congress. I reviewed
the evidence in excruciating detail. Ultimately, for me, the
choice was clear. I came to the conclusion that it was my duty
to support impeachment. Now it is your turn to cast what could
be the most important vote of your political careers. The
question is, Will moral fortitude or political expediency rule
the day?
This past weekend, I had the opportunity to spend a couple
hours at my college alma mater, William and Mary, not too far
from here, down in Williamsburg, VA. As I walked around the
campus, I could not help but think back to my college days and
what motivated me to seek public office in the first place.
Back in 1972, I was a 19-year-old college student casting
my first ballot in a Presidential election. Like a majority of
Americans that year, I voted for a Republican, Richard Nixon,
for President. Four years later, however, I voted for a
Democrat, Jimmy Carter. This decision stemmed from my profound
disappointment over Watergate and a strong conviction that
President Nixon should not have received immunity for his
actions.
Now, just as in college, I find myself extremely troubled
by the actions of a President. In fact, as I started to think
about what I would say to you today, I wasn't sure how to
begin. How exactly do you wrap up in 10 minutes or less
everything we have witnessed in the last year? We have seen
Bill Clinton's finger-waving denial to the American people. We
have seen the President lie before a Federal grand jury. We
have seen the President obstruct justice. We have seen the
President hold a public celebration immediately following the
House impeachment vote. We all know the President's behavior
has been reprehensible.
President Clinton, however, refuses to admit what all of us
know is true. To this day, he continues to deny and distort; he
continues to dispute the undeniable facts that are before the
Senate and before the American people. The President's
attorneys have done their best to disguise the truth as well.
At the beginning of this trial, I predicted in my
presentation that they would use legal smokescreens to mask the
law and the facts. To their credit, they produced smoke so
thick that it continues to cloud this debate. But if you look
through the smoke and the mirrors employed by these very able
lawyers, you will see the truth. The truth is that President
Clinton lied to a Federal grand jury. He lied about whether or
not he had committed perjury in a civil deposition, about the
extent of his relationship with a subordinate Federal employee,
about his coaching of his secretary, Betty Currie, and about
the countless other matters.
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.
President Clinton also obstructed justice and encouraged
others to lie in judicial proceedings. He sought to influence
the testimony of a potentially adverse witness with job
assistance, and he attempted to conceal evidence that was under
subpoena.
These truths cannot be ignored, distorted, or swept under
the rug. Some of the President's partisan defenders want you to
do just that. But it would be wrong. It would be wrong for you
to send the message to every American that it is acceptable to
lie under oath and obstruct justice. It would be wrong for you
to tell America's children that some lies are all right. It
would be wrong to show the rest of the world that some of our
laws don't really matter.
I must agree with Phyllis and Jack Stanley, constituents of
mine who live in my district, who wrote me a letter saying:
We believe that President Bill Clinton should definitely be
impeached for the sake of the country. If he is not impeached,
will not the rule of law in this country be weakened? We do not
feel glee over the prospect of President Clinton's impeachment,
however. For the sake of coming generations, acknowledging that
integrity, honor and decency matter greatly is very important,
especially in the highest office of the land.
Like most of you, I have spent countless hours at grocery
stores, shopping malls, in schools, in my church talking to my
constituents. I have also read thousands of letters that have
been sent to my office, just as we all have. What I have heard
and read doesn't surprise me. People in Cincinnati, OH, have a
variety of views on what the ultimate verdict should be by this
body. Many want the President removed from office. Others want
a censure. Still others would just like to see the process end.
But regardless of their views, they are honorable people who
care about our country and our future.
I know that throughout the process some of the President's
more partisan defenders have harshly criticized the managers,
the House of Representatives, and anyone who would dare believe
the President committed any crimes. These partisan attacks have
been unfortunate because I think we all know that these issues
are serious and that they deserve serious consideration. I know
it, the American people know it, and I think you all know it,
too. But despite the partisan rhetoric of the attacks, I
believe that once this trial ends, we must work together.
So I ask everyone here today to make a commitment, a
commitment to every American, that regardless of the trial's
outcome, we will join together to turn the page on this
unfortunate chapter that President Clinton has written into our
Nation's history.
The question before you now is: How will this chapter end?
Will the final chapter say that the U.S. Senate turned its back
on perjury and obstruction of justice by a President of the
United States, or will it say that the Senate took a principled
stand and told the world that no person, not even the
President, stands above the law; that all Americans, no matter
how rich, how powerful, or how well connected, are accountable
for their actions, even the President.
As the father of two children and a former schoolteacher
myself at an inner-city school in Cincinnati, I believe it is
very important that we teach our children that honesty,
integrity, and the rule of law do matter.
While I am in Cincinnati, I spend a lot of time visiting
schools throughout my community. I taught the seventh and
eighth grades back in Cincinnati. When I go there, I go to
elementary schools, I go to junior highs, I go to high schools;
and I have been doing this for a number of years. Do you know
what is inevitably one of the questions that the kids will ask
me almost every time? It is, ``Have you ever met the President
of the United States?''
Why do kids ask that question? Because our kids understand
how important the Office of the Presidency is. The person who
occupies that office owes it to the children of this Nation to
treat the office with respect. In the past, when those kids
asked me that question, they asked me that question out of
pride and respect. They looked up to the office. They looked up
to everything the office represents. Bill Clinton has let our
children down, and that is one of the greatest things that
bothers me. It is the effect this will have on the children of
this Nation.
Let me conclude with a statement that I received recently
from a student, Juliette Asuncion, at Mother Mercy High School:
I am writing to express my feelings on the scandalous
situation that has taken over the White House for the past
couple of months. First, I would like to state the qualities
that should be found in the President of the United States.
Since the President is the official representative of the
United States, he should uphold the values and ideals held by
the people of this country. The President should be honest and
a trustworthy person. He should be a good decision maker, have
good morals and have his priorities straight. He should devote
his time to the country and set a good example for the people
of this Nation. I feel that President Clinton does not measure
up to these standards. He's lied to the American people; he's
committed perjury. For someone in his position, this is an
unforgivable act, and he should not be allowed to just walk
away without a punishment. He has shown that he feels he can go
above the law, and I strongly believe the President should be
impeached.
I conclude by telling you, when you cast your vote, you
remember that by your vote you are determining the lesson that
Julia, your children and grandchildren will learn. So how will
this chapter end? The decision is yours.
I now yield to the gentleman from Georgia, Robert Barr.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Barr.
Mr. Manager BARR. Thank you, Mr. Chief Justice.
Distinguished and worthy adversarial counsel for the
President, including my good friend and former Georgetown law
professor, Charles Ruff, gentlemen and ladies of the Senate, my
name is Bob Barr. I represent the Seventh District of Georgia,
but in a broader sense I represent the country because I have
been directed, as every one of the other 12 managers of the
House has been directed by the American people, by a majority
vote of the House of Representatives, to urge you to review the
evidence and issue a verdict of conviction on the two articles
of impeachment passed by the House of Representatives.
Two days ago, all of us celebrated the birthday of former
President Ronald Reagan. During his first year in office, on
May 17, 1981, this President, known for giving voice to
America's best and most decent instincts, spoke to the American
people from Notre Dame University. Though spoken nearly 18
years ago, and clearly not in contemplation of an impeachment,
the former President's words provide guidance for you today.
It was that date that President Reagan spoke of a certain
principle; and in so doing, he quoted another giant of the 20th
century, Winston Churchill. Specifically, President Reagan
spoke of those who derided simple, straightforward answers to
the problems confronting our country; those who decried clarity
and certainty of principle, in favor of vagueness and
relativism. He said:
They say the world has become too complex for simple
answers. They are wrong. There are no easy answers, but there
are simple answers. We must have the courage to do what is
morally right. Winston Churchill said that, ``the destiny of
man is not measured by material computation. When great forces
are on the move in the world, we learn we are spirits--not
animals.'' And he said, ``there is something going on in time
and space, and beyond time and space, which, whether we like it
or not, spells duty.''
Duty. A clear, simple concept. A foundational principle.
Your duty is clearly set forth in your oath; your oath to
do impartial justice according to the Constitution and the law.
In the past month, you have heard much about the
Constitution; and about the law. Probably more than you 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. Evidence and law, you have
seen it and you have heard it.
You have also seen and heard about straw men raised up by
the White House lawyers, and then stricken down mightily. You
have heard them essentially describe the President alternately
as victim or saint. You have heard even his staunchest allies
describe his conduct as ``reprehensible.'' Even some of you, on
the President's side of the aisle, have concluded, ``there's no
question about his having given false testimony under oath and
he did that more than once.''
There has also been much smoke churned up by the defense.
Men and women of the Senate, Monica Lewinsky is not on
trial. Her conduct and her intentions are not at issue here.
Vernon Jordan is not on trial and his conduct and his
intentions are not at issue here. William Jefferson Clinton is
on trial here. His behavior, his intentions, his actions--these
and only these are the issues here. When the White House
lawyers raise up as a straw man that Vernon Jordan may have had
no improper motive in seeking a job for Ms. Lewinsky; or that
there was no formal ``conspiracy'' proved between the President
and Vernon Jordan; or that Ms. Lewinsky says she did not draw a
direct link between the President's raising the issue of a
false affidavit and the cover stories, keep in mind, these are
irrelevant issues. When the White House lawyers strike these
theories down, even if you were to conclude they did, they are
striking down nothing more than irrelevant straw men.
What stands today, as it has throughout these proceedings,
are facts--a false affidavit that benefits the President, the
coaching of witnesses by the President, the secreting of
subpoenaed evidence that would have harmed the President, lies
under oath by the President. These reflect President Clinton's
behavior; President Clinton's intentions; President Clinton's
actions; and President Clinton's benefit. Not through the eyes
of false theories; but by the evidence through the lens of
common sense.
You have heard tapes and read volumes of evidence. Not
pursuant to the process we as House Managers would have
preferred, but much evidence, nonetheless, has been presented.
Many are saying, with a degree of certainty that usually
comes only from ignorance, that there is nothing I or any of us
can say to you today, on the eve of your deliberations, to sway
your minds. I beg to differ with them. Moreover, we have been
directed by the people of this country, by a majority vote of
the House of Representatives, to fulfill and reaffirm a
constitutional process and to present evidence to you and argue
to you.
There is much, in urging a vote for conviction, that can be
gained by turning to, and keeping in mind, President Reagan's
words to America, to do duty: duty unclouded by relativism,
unmarred by artificiality. Duty that lives on after your vote--
just as America will live on and prosper after a vote to
convict. Duty untainted by polls. The country's fascination
with polls has wormed its way even into these proceedings when,
just a few days ago, we heard one of the White House lawyers
cite polls as a reason not to release the videotapes.
Polls played no role in the great decisions, decisive
decisions that make America a nation and kept it a free and
strong nation. Polls likewise played no role in the great
trials of our Nation's history that opened schools equally to
all of America's children, or that provided due process and
equal protection of the laws for all Americans, regardless of
economic might or political power.
Yet, it is in many respects polls that threaten to become
the currency of political discourse and even of judicial
process as we near to enter the 21st century.
Your duty, which I know you recognize today, is and must be
based not on polls or politics, but on law and the
Constitution. In other words, principle.
What you decide in this case, the case now before you, will
tell America and the world what it is we have, as a foundation
for our Nation, not just today, but for ages to come. It will
tell us and this Nation whether these seats here today will
continue to be filled by true statesmen. Whether these seats
will continue to echo with the booming principles, eloquence
and sense of duty of Daniel Webster, John Calhoun, Everett
Dirksen, Robert Byrd. I would add to that list of statesmen my
fellow Georgian and your former colleague, Sam Nunn, whose
concern for duty and our Nation's security caused him recently
on CNN to raise grave concerns over our Nation's security
because of the reckless conduct of this President. Will the
principles embodied in our Constitution and our laws be
reaffirmed; wrested from the pallid hands of pollsters and
pundits, and from the swarm of theorists surrounding these
proceedings? Will they be taken up by you, and placed squarely
and firmly back in the hands of Thomas Jefferson, Alexander
Hamilton, James Madison, George Washington, Abraham Lincoln,
Martin Luther King, Jr., and so many other true statesmen of
America's heritage? Principles that have stricken down bigotry,
tyrants, and demagogs; principles that, through open and fair
trials, have saved the innocent from the hangman's noose; and
likewise have sent the guilty, clothed in due process, to then
ether regions.
It is principle, found and nurtured in our Constitution and
our laws, that you are now called on to both use and reaffirm.
Not only America is watching, the world is, too. And, for
those who say people from foreign lands look down on this
process and deride this process, I say, ``not so.''
Let me speak briefly of a man not born in this country, but
a man who has made this his country. A man born not in Atlanta,
GA, though Atlanta is now his home. A man born many thousands
of miles away, in Eritrea. A man to whom President Reagan
surely was in a sense speaking, both in 1981 when he spoke of
America's eternal sense of duty, and in January 1985, when he
spoke of the ``American sound'' that echoes still through the
ages and the continents.
The man whose words I quote is a man who watches this
process through the eyes of an immigrant, Mr. Seyoum Tesfaye. I
have never met Mr. Tesfaye, but I have read his works. He
wrote, in the Atlanta Journal and Constitution, just 3 days
ago, on February 5, that this impeachment process ``is an
example of America at its best . . . a core constitutional
principle that profoundly distinguishes America from almost all
other nations.'' He noted without hyperbole, that this process,
far from being the sorry spectacle that many of the President's
defenders have tried to make it, truly ``is a hallmark of
representative democracy,'' reaffirming the principle that ``no
man is above the law--not even the President.''
These are not the words of the House Managers; though they
echo ours.
These are not the words of a partisan.
These are the words of an immigrant. A man who came to
America to study, and has stayed to work and pay taxes just as
millions of us do every day.
Men and women of the United States Senate, you must, by
affirming your duty to render impartial justice based on the
Constitution and the law, reaffirm those same laws and that
very same Constitution, which drew Mr. Tesfaye and countless
millions of other immigrants to our shores over the ages. This
is not a comfortable task for any of us. But, as Martin Luther
King, Jr., correctly noted, in words that hang on my office
wall, and perhaps on some of yours, it is not in ``times of
comfort and convenience'' that we find the measure of a man's
character, but in times of ``conflict and controversy.'' This
is such a defining time.
Obstruction of justice and perjury must not be allowed to
stand. Perjury and obstruction cannot stand alongside the law
and the Constitution.
By your oath, you must, like it or not, choose one over the
other, up or down, guilt or acquittal. I respectfully submit on
behalf of the House of Representatives and on behalf of my
constituents in the Seventh District of Georgia that the
evidence clearly establishes guilt and that the Constitution
and laws of this land demand it.
I thank the Members of the Senate and yield to Mr. Manager
Buyer.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Buyer.
Mr. Manager BUYER. Thank you, Mr. Chief Justice.
Mr. Chief Justice, distinguished counsel and Senators, my
name is Steve Buyer, House manager, from Monticello, IN. I
represent 20 counties between South Bend and Indianapolis. I
will not try to claim the cornerstone of Hoosier common sense.
Mr. Kendall would wrestle me for that cornerstone. But as a
former criminal defense attorney, I want to take a moment and
compliment the White House counsel and Mr. Kendall for doing
your best to defend your client in the face of overwhelming
facts and compelling evidence.
[Laughter.]
Your role here--a side comment here--your role here is much
easier, though, in a Court of Impeachment as opposed to a
criminal court of law.
As a former Federal prosecutor, I compliment Chairman Henry
Hyde and my colleagues, the House managers, who have embraced
and given life meaning of the rule of law and presented this
case to the Senate in a professional, thorough, and dignified
manner.
I assure you, the House managers would not have prosecuted
the articles of impeachment before the bar of the Senate had we
not had the highest degree of faith, belief, and confidence
that, based on the evidence, the President committed high
crimes and misdemeanors which warrant his removal from office.
As you come to judgment, I recommend you square yourself
with your duty first.
On January 7, I witnessed as the Chief Justice administered
your oath to do impartial justice according to the Constitution
and the laws. You should follow this prescription: Find the
truth, define the facts, apply the law, give reverence to the
Senate precedents while defending the Constitution. But I
submit, it is the integrity of your oath in which you must
regulate to uphold the principle of equal justice under the
law.
During the question-and-answer phase with the Chief Justice
on Saturday, January 23, I stood in the well of the Senate and
recommended that you vote on findings of fact. I want to clear
the record of my intent of the recommendation. It has been
grossly distorted.
It is not to establish the guilt, as some have alleged. A
finding of fact is not a finding of fiction. On the contrary,
it is to prevent decisions by triers of fact from basing their
judgment on fiction or chance or politics. The Chief Justice
ruled that you are triers of fact, and since this
constitutional proceeding of impeachment is more like a civil
proceeding than a criminal trial, I bring to your attention
rule 52 of the Federal Rules of Civil Procedure that provides,
in pertinent part, that when a judge sits alone as a trier of
fact, he or she is required to set down in precise words the
facts as he or she finds them. This requirement is mandatory
and cannot be waived by the parties of Federal practice.
A memorandum of findings of fact is not a radical concept
to American jurisprudence. It is customary and habitually used
in State and Federal courts all across this land. Since you sit
collectively as a Court of Impeachment, as the triers of fact,
I recommended the findings of fact to guarantee that you have
carefully reviewed the evidence and have a rational basis for
your final judgment.
To claim that findings of fact is unconstitutional is
false. The Supreme Court has consistently permitted the Senate
to shape the contours and the due process of an impeachment
trial.
The Senate owes the American people and history an
accounting of the stubborn facts.
I would like to comment on some statements.
I have heard some Senators state publicly that they are
using the standard of beyond a reasonable doubt. But the Senate
has held consistently that the criminal standard of proof is
inappropriate for impeachment trials. The result of conviction
in an impeachment trial is removal from office; it is not meant
to punish. You are to be guided by your own conscience, not by
the criminal standard of proof of beyond a reasonable doubt.
I have also heard some Senators from both sides of the
aisle state publicly, ``I think these offenses rise to the
level of high crimes and misdemeanors.'' To state publicly that
you believe that high crimes and misdemeanors have occurred,
but for some reason you have this desire not to remove the
President, that desire, though, does not square with the law,
the Constitution, and the Senate's precedents for removing
Federal judges for similar offenses.
So long as William Jefferson Clinton is President, the only
mechanism to hold him accountable for his high crimes and
misdemeanors is the power of impeachment and removal. The
Constitution is very clear. You cannot vindicate the rule of
law by stating high crimes and misdemeanors have occurred, but
leave the President in office subject to future prosecution
after his term is expired.
Without respect for the law, the foundation of our
Constitution is not secure. Without respect for the law, our
freedom is at risk.
The President is answerable for his alleged crimes to the
Senate here and now.
Moreover, if criminal prosecution and not impeachment is
the way to vindicate the rule of law, then the Senate would
never have removed other civil officers such as Federal judges,
who are not insulated from criminal prosecution while holding
office.
Thus, in providing for criminal punishment after conviction
and removal from office, it was the framers who insured that
the rule of law would be vindicated both in cleansing the
office and in punishing the individual for the criminal act.
I have asked myself many times how allowing a President to
remain in office while having committed perjury and obstruction
of justice is fair to those across the country who are sitting
in jail for having committed the same crimes. I have had the
fairness argument thrown into my face consistently.
Fairness is important. Fairness is something that is simple
in its nature and is powerful in the statement that it makes. A
statement which you send carries us into tomorrow and becomes
our future legacy.
If you vote to acquit, think for a moment about what you
would say to those who have been convicted of the same crimes
as the President.
What would you say to the 182 Americans who were sentenced
in Federal court in 1997 for committing perjury?
What would you say to the 144 Americans who were sentenced
in Federal court in 1997 for obstruction of justice and witness
tampering?
Would you attempt to trivialize the evidence and say,
``This case was only about lying about sex''?
I want to cite the testimony before the House Judiciary
Committee of one woman who experienced the judicial system in
the most personal sense, and that is the testimony of Dr.
Barbara Battalino. I think it is compelling.
She held degrees in medicine and law, and Manager Rogan
showed some of the testimony just the other day. You see, she
was prosecuted by the Clinton Justice Department and convicted
for obstruction of justice because of her lie under oath about
one act of consensual oral sex with a patient on VA premises.
Her untruthful response was made in a civil suit which was
later dismissed. In a legal proceeding, Dr. Battalino was asked
under oath: ``Did anything of a sexual nature take place in
your office on June 27, 1991?''
Her one word reply, ``No,'' convicted her and forever
changed her life.
Her punishment? She was convicted of a felony, forced to
wear an electronic monitoring device, and is presently on
probation. She lost her license to practice medicine and her
ability to practice law.
Our prisons hold many who are truly contrite, they are
sorry, they feel pain for their criminal offenses, and some
whose victims have even forgiven them, others who were very
popular citizens and had many friends and apologized profusely,
but they were still held accountable under the law.
Just like the President is acclaimed to be doing a good
job, many in prison today were doing a good job in their chosen
professions. None of our laws provides for good job
performance, contrition, forgiveness, or popularity polls as a
remedy for criminal conduct.
These were the closing lines of Dr. Battalino's opening
statement before the House Judiciary Committee:
We all make mistakes in life. But, common frailty does not
relieve us from our responsibility to uphold the Rule of Law.
Regardless, this nation must never let any person or people
undermine the Rule of Law. . . . If liberty and justice for all
does not reign, we--like great civilizations before us--will
surely perish from the face of the earth.
What you would say to Dr. Battalino and others similarly
situated is very important because fairness is important.
Alexander Hamilton, writing not long after the Constitution
was adopted, well expressed the harm that would come to our
Republic from those who, by example, undermine respect for the
law. In a statement that bears repeating, Hamilton wrote:
If it were to be asked, What is the most sacred duty and
the greatest source of security in a Republic? The answer would
be, an inviolable respect for the Constitution and Laws--the
first growing out of the last. . . . Those, therefore, who . .
. set examples, which undermine or subvert the authority of the
laws, lead us from freedom to slavery; they incapacitate us
from a government of laws. . . .
President Clinton, by his persistent and calculated
misconduct and illegal acts, has set a pernicious example of
lawlessness, an example which, by its very nature, subverts
respect for the law. His perverse example inevitably undermines
the integrity of both the Office of the President and the
judicial process.
You see, ladies and gentlemen, without choice we were all
born free, and we inherited a legacy of liberty at great
sacrifice by many who have come before us. We cannot
collectively as a free people enjoy the liberties without
measured personal restraint. And that is the purpose of the
rule of law. It is the function of the courts to uphold the
dignity of that prescription and the God-given liberties of all
of us. That is how we are able to carry this Nation forward in
the future generations.
So in light of the historic principles regarding
impeachment, the overwhelming evidence to the offenses alleged,
and the application of the Senate precedents, I believe it
makes it very clear that our President--who has shown such
contempt for the law, the dignity and the integrity of the
office of the Presidency that was entrusted to him--must be
held to account; and it can only be by his removal from office.
The House managers reserve the remainder of our time.
The CHIEF JUSTICE. Very well.
The Chair recognizes the White House counsel.
Mr. Counsel RUFF. Mr. Chief Justice, thank you.
I wonder, Mr. Majority Leader, whether we can take a brief
break because there is a need to arrange furniture.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Mr. LOTT. I was hesitant to suggest it, too, early today,
Mr. Chief Justice.
[Laughter.]
Recess
Mr. LOTT. On the request of counsel, I ask unanimous
consent that we take a 10-minute recess. And please return
quickly to the Chamber so we can get back to business.
There being no objection, at 2:12 p.m. the Senate recessed
until 2:35 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes Mr. White House
Counsel Ruff.
Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Mr. Chief
Justice, managers of the House, ladies and gentlemen of the
Senate, I can't resist beginning, following the lead of my
colleagues across the well here, by telling you that my name is
Charles Ruff and I am from the District of Columbia, and we
don't have a vote in the Congress of the United States.
[Laughter.]
I truly did not intend to begin quite this way, but I must.
I do not think there is a court in the land where a prosecutor
would be able to stand up for one-third of his allotted time,
speak in general terms about what the people are entitled to
and what the rule of law stands for--as important as all of
that may be--and sit down and turn to the defense counsel and
ask that defense counsel go forward, reserving 2 hours for
rebuttal. I recognize that procedural niceties have not
necessarily characterized the way this trial has gone forward.
But I do believe--and this is the only time today I will say
this, I promise--that kind of prosecutorial gambit is
symptomatic of what we have seen before in these last weeks--
wanting to win too much.
That said, let me begin where I intended to begin. We are
taking the last steps along a path that, for most of us, has
seemed to be unending. Indeed, some of us may have a sense that
we have gone well beyond ``Yogi Berra land'' to deja vu all
over again and all over again and all over again. I thought
long and hard as I thought about what I was going to say today,
and how I could be of most help to you as you make this
momentous decision that will soon be entrusted to you. I
momentarily considered whether the answer to that question was
simply to yield back my time, but I weighed that against the
special pleasure of stretching out our last hours with you.
[Laughter.]
Or as Ernie Banks would have said, ``It's such a nice day,
let's play two.''
[Laughter.]
But cursed as I am with lawyerly instincts, I decided to
compromise. I promise you as much brevity as I can manage, even
if not much wit, while making a few final points that I think
you need to carry with you as you go into your deliberations.
You have heard the managers' vision--or at least some part
of it--of the process we have been engaged in and the lessons
we have learned and what it will look like at the end of our
journey. I respect them as elected Representatives of their
people and as worthy adversaries. But I believe their vision
could be too dark, a vision too little attuned to the needs of
the people, too little sensitive to the needs of our democracy.
I believe it to be a vision more focused on retribution, more
designed to achieve partisan ends, more uncaring about the
future we face together.
Our vision, I think, is quite different, but it is not
naive. We know the pain the President has caused our society
and his family and his friends. But we know, too, how much the
President has done for this country. And more importantly, we
know that our primary obligation, the duty we all have, is to
preserve that which the founders gave us, and we can best
fulfill that duty by carefully traveling the path that they
laid out for us.
You have heard many speeches over the past few weeks about
high crimes and misdemeanors. As I look back on the arguments
and the counterarguments, it seems to me that really very
little can be gained by repeating them; for when all is said
and done, what they mean is this: The framers chose stability.
They made impeachment and removal constitutional recourses of
last resort. The question that the managers appear to have
asked--and I am unable to tell you what they will ask today--is
whether perjury or obstruction of justice in the abstract are
impeachable offenses. That is not the question you must answer.
Nor must you assume, as the managers appear to, that
because judges are removed for having committed perjury, a
President must be removed as well. That is not what the rule of
law requires. The rule of law and evenhanded justice is
something more than a simple syllogism. You must decide whether
on these facts arising out of these circumstances this
President has so endangered the state that we can no longer
countenance his remaining in office.
I think in their hearts the managers do not truly disagree.
Whatever they have been able to glean from the historical
record or more modern scholarship, they cannot in the end avoid
the conclusion that removal of the President is not something
that the framers took lightly. Indeed, two of their own
witnesses in the Judiciary Committee, Professor Van Alstyne and
Judge Wiggins, tried to make it clear to them that even if they
were to find that the offenses described in the independent
counsel's referral as being committed, another decision had to
be made. That decision was whether in the interest of society
the President should be impeached. As Professor Van Alstyne put
it, in words that I admit are unflattering to my client but
nonetheless makes the point: ``In my own opinion,'' he said,
``I regard what the President did, that which the Special
Counsel report declared, are crimes of such a low order that it
would unduly flatter the President by submitting him to trial
in the Senate, I would not bother to do it.''
I read that statement to you, not obviously because the
professor and I are on the same side of the political divide or
have the same view of the President's conduct, but because it
is important, I think, to understand, as I fear the managers do
not, that the framers full well understood what they were doing
when they drafted the impeachment provision of the
Constitution. They consciously chose not to make all misconduct
by the President a basis for removal; they chose instead only
that conduct that they viewed as most serious, as most
dangerous, to our system of government.
As I said, I think in their hearts the managers recognize
the force of it. But they have argued to you that perjury and
obstruction really should be treated as the equivalent of
treason and bribery and the danger that they pose to our
society. They have offered on this much rhetoric and a few
substantive arguments. I want to look at just a few of these
arguments as they were advanced in the managers' opening and
not really addressed instead.
First, a historical item, that Blackstone in his commentary
listed bribery and perjury and obstruction of justice under the
same heading of ``offenses against public justice''; second, a
modern statutory equivalent of that argument that under the
sentencing guidelines we actually treat perjury more severely
than we do bribery; and, third--this is a theme you have heard
throughout these proceedings, what I will call the ``system of
justice argument''--that the President's conduct, if he is not
removed, will somehow subvert enforcement of our civil rights
laws.
But all of these arguments are mere subterfuge, offered
because the managers knew that to make any plausible case for
removal they must bring these articles within the very small
circle of offenses that the framers believed were truly
dangerous to the state.
First, Blackstone: It is true that the commentaries rate
perjury as among 21 offenses against public justice. Notably,
however, Blackstone ranks the 21 in order of seriousness, or,
as he puts it, ``malignity.'' No. 1 on the list, a most
malignant offense, is a felony that I have to admit is unknown
to me--that of vacating records. No. 6 is returning from
transportation, also an offense rarely seen in our modern
society. Nos. 10 and 12 are barratry, maintenance and
champerty, especially dear to me because they involve my
profession, but rarely viewed these days, I think you will
agree. And, at No. 15 is perjury.
If, as Madison told us, Blackstone was in the hands of
every man, what does that tell us about why the framers chose
treason and bribery and other high crimes and misdemeanors as
the grounds of impeachment? It tells us that they fully
understood that comparative gravity of offenses against public
justice, and, nonetheless, chose only those that truly pose
that danger to the state--treason, for obvious reasons, and
bribery because to them the risk that the executive would sell
himself to a foreign country, for example, was much more than
mere speculation. And then other high crimes of similar
severity.
As to the lesson to be learned from the more modern day,
the sentencing guidelines, Manager McCollum argued to you a few
weeks ago that those to whom you have given the responsibility
to assess the comparative severity of crimes have concluded
that perjury is at least as serious a crime as bribery. That
decision, he told you, is evidenced by the commission's
decision to assign perjury an offense level of 12, or
approximately 1 year in prison, and to bribery an offense level
slightly below that. But even to the extent that such an
argument were to be weighed in the constitutional balance,
Manager McCollum was simply not being candid with you, for he
failed to explain that under these same guidelines a bribe of,
let's say, $75,000 taken by an elected official, or a judge for
that matter, automatically carries an offense level of 24, or
twice that of perjury, and a prison sentence four to five times
longer.
The drafters of our guidelines, to the extent that Mr.
McCollum asked you to look at them, full well understand the
special gravity of bribes taken by the country's leaders, and
to distinguish that offense from the offenses, even at best,
that are before you now.
Lastly is this system of justice argument--the notion that
somehow President Clinton has undermined our civil rights laws.
Whatever I might say could not match the eloquence of my
colleague, Ms. Mills, and, therefore, I will not attempt fate
by venturing further into that territory.
I really do not want to become further immersed in the
minutia here. On this, I do agree with the managers. We cannot
lose sight of the constitutional forest for some of the
analytical trees.
There is only one question before you, albeit a difficult
one, one that is a question of fact, and of law and
constitutional theory. Would it put at risk the liberty of the
people to retain the President in office? Putting aside
partisan animus, if you can honestly say that it would not,
that those liberties are safely in his hands, then you must
vote to acquit.
Each of you has a sense of this in your mind and your heart
better than anything I can convey, or I suspect anything better
than my colleagues could convey to you. And I will not
undertake to instruct you further on this issue.
Just as we ultimately leave that question in your hands, we
leave to the conscience of each Member the question of what
standard of proof you apply. Despite Congressman Buyer's
exhortation to the contrary, this body has never decided for
any of you what standard is appropriate or what standard is
inappropriate. Each Senator is left to his or her own best
judgment.
I suggested to you when I last spoke to you that I believe
you must apply a standard sufficiently stringent to enable you
to make this most important decision with certainty and in a
manner that will ensure that the American people understand
that it has been made with that certainty.
This is not an issue as to which we as a people and we as a
Republic can be in doubt.
Let me move to the articles. Just as you have listened
patiently to our debate about the meaning of ``high crimes and
misdemeanors,'' you have, as well, heard seemingly endless
discourse about the specific details of the various matters
that the managers allege constitute grounds for removal. I will
strive, therefore, not to be unduly repetitive more than is at
least absolutely necessary.
My colleagues, last Saturday and in their earlier
presentations, have done my work for me, but I want to focus
for just a little while on those aspects of the managers'
presentation that merit your special attention or those that
have been particularly elucidated or, for that matter,
beclouded by the testimony you heard and watched on Saturday.
As we start this discussion, let me offer you a phrase that
I hope you will remember as I move through the articles with
you. That phrase is ``moving targets and empty pots.'' ``Moving
targets,'' ever-shifting theories, each one advanced to replace
the last as it has fallen, fallen victim to the facts. ``Empty
pots,'' attractive containers, but when you take the lid off
you find nothing to sustain them.
I used the term, ``empty vessels,'' in my opening
presentation, but it has since struck me that that was much too
flattering and might even suggest that they had the capacity to
float, which they don't.
Article I, the first moving target. As we have said
repeatedly, we have been more than a little puzzled as to the
exact nature of the charges advanced by the managers under the
rubric of article I, and our puzzlement has only increased, I
must tell you, since this trial began.
We have argued, I think with indisputable force, that both
articles are so deficient that they would not survive a motion
to dismiss in any court in the land. We are not insensitive to
the claim that we are advancing some lawyer's argument, and we
are seeking some technical escape, but I urge you not to treat
this issue so lightly. As you look to article I, for example,
ask yourselves whether you can at this late moment in the trial
identify for yourselves with any remote sense of certainty the
statements that the managers claim were perjurious.
I suspect you will hear a lot about that in the 2 hours
following my presentation, but I will try to look ahead just a
bit.
Ask yourselves whether you are comfortable in this gravest
of proceedings that when you retire to your deliberations you
could ever know that the constitutionally required two-thirds
vote is present on any one charge.
We have been making this argument for some time and with
some frequency, and so you would think that at least once the
trial began the managers would have fixed on some definable set
of charges. But, no. Indeed, it struck me even earlier this
afternoon that when Manager Sensenbrenner rose to speak to you,
he was prepared to give you four examples of perjury. We have
heard a lot of examples. We haven't heard much certainty.
Just to give you an example of how rapidly the target can
move, you will recall that in describing the incidents of
perjury allegedly committed by the President, the managers made
much of the preliminary statement he read to the grand jury,
including the use of the words ``occasionally,'' and ``on
certain occasions'' to describe the frequency of certain
conduct and made the general allegation that the statement was
itself part of a scheme to deceive the grand jury.
Yet, strangely, when Mr. Manager Rogan was asked about
these very charges as late as January 20, he quite clearly
abandoned them.
I direct your attention to the exhibits before you and to
the charts. Appearing on television on January 20, with Chris
Matthews, this is what transpired:
MATTHEWS. . . . now defend these--these elements--one, that
the president lied when he said he had had these relationships
with her on certain occasions. Is that the language?
Rep. ROGAN. That is the . . .
MATTHEWS. And--and why is that perjurious--perjurious?
Rep. ROGAN. In fact, I'm not--I don't think it's
necessarily perjurious. That is--that's one little piece of
this answer that he gave at the grand jury. . . .
* * * * *
MATTHEWS. Well, another time he used a phrase with regard
to this ridiculous thing called phone sex, he referred to it as
occasionally or on occasion. Why do you add them in as part of
the perjury indictment?
Rep. ROGAN. That's not added in as part of the perjury
indictment in Article I. I simply raised that issue when I was
addressing the Senate.
* * * * *
MATTHEWS. You better get to those senators because I think
they made the mistake I did of thinking that was one of the
elements in the perjury charge.
And similarly over here, although I have reversed the order
a bit:
MATTHEWS. . . . Go through what you think are the main
elements in your perjury indictment of the president,
impeachment. . . .
Rep. ROGAN. One of the things they were focusing on is a
point, I think, I made last week when I was presenting the case
for perjury dealing with that preliminary statement that the
president read that just really gave the grand jury a
misperception of what the president's relationship was with
Monica Lewinsky. Now I never said that was the basis for the
perjury charge. In fact, that's not even one of the four areas
that's alleged, but they're trying to pick these little dots
out of the matrix and try to hang their hat on that. . . .
I have to tell you, as did Mr. Matthews, I made the same
mistake. I heard Manager Rogan say:
This prepared statement he read to the grand jury on August
17th, 1998, was the linchpin in his plan to ``win.''
I heard him say:
It is obvious that the reference in the President's
prepared statement to the grand jury that this relationship
began in 1996 was intentionally false.
I heard him say:
The President's statement was intentionally misleading when
he described being alone with Ms. Lewinsky only on certain
occasions.
And I heard him say:
The President's statement was intentionally misleading when
he described his telephone conversations with Monica Lewinsky
as occasional.
That is what I heard when Manager Rogan spoke to you a few
weeks ago.
I know it is unusual to be given a bill of particulars on
television, but maybe that is part of the modern litigation
age.
So as to article I's charge, now that this is off the
books, that the President perjured himself concerning his
relationship with Ms. Lewinsky, we are once again left with the
claim that he lied about touching, about his denial that he
engaged in conduct that fell within his subjective
understanding of the definition used in the Jones deposition--
this in the course of testimony, Members of the Senate, in
which the President had already made the single most
devastating admission that any of us can conceive of. It defies
common sense. And as any experienced prosecutor--and five
experienced prosecutors said this to the Judiciary Committee--
will tell you, it defies real world experience to charge
anyone, President or not, with perjury on the grounds that you
disbelieve his testimony about his own subjective belief in the
definition of a term used in a civil deposition.
Nothing in the evidentiary record has changed since the OIC
referred this matter to the House 6 months ago. Indeed, it is
impossible to conceive what could change in the evidentiary
record. And the managers have offered this charge and persist
in it for reasons not entirely clear to me, but some blind
faith that they must go forward, facts or no.
There are three other elements of article I. First, the
allegation that the President lied when he claimed he did not
perjure himself in the Jones deposition. The President, of
course, made no such representation in the grand jury.
The managers cannot, no matter how they try, resurrect the
charges of the article, then, article II, that was so clearly
rejected by the House of Representatives. Yet, if you listen to
their presentations over the past weeks, it becomes evident
that, whether intentionally or unintentionally, they themselves
have come to the point where the President's testimony on
January 17 in the Jones deposition and August 17 in the grand
jury are treated as though they were one and the same.
Just a few minutes ago you heard Manager Gekas talk to you
about perjury, and probably 90 percent of what he talked to you
about was perjury in the Jones case--in the Jones case. It
doesn't exist anymore. The House of Representatives determined
that that was not an impeachable offense. It appears to make no
difference, though, that the House rejected this charge, for
the managers do continue to dwell on it as though somehow they
could show the House from which they came that they made a
mistake.
Only last Saturday, Manager Graham could be heard decrying
the President's claim that he had never been alone with Monica
Lewinsky, something that comes not out of the grand jury but
out of the Jones deposition, at the same time he was taking him
to task for his disquisition on the word ``is,'' something that
is in the grand jury but is entirely irrelevant to these
perjury charges. You could even see it in their videotape
presentation last Saturday when snippets from January 17, then
August 17, were played without any definition and without any
sense that there was any distinction between the two events.
There is literally nothing in the President's grand jury
testimony that purports to adopt wholesale his testimony in the
Jones deposition. If anything, it is evident that he is
explaining at length and clarifying and adding to his
deposition testimony. Indeed, even if the original article II
had survived, the President's belief that he had ``worked
through the minefield of the Jones deposition without violating
the law''--which is a quote from his grand jury testimony--
could not allow the managers, somehow, to establish that that
statement was independently perjurious, and they surely cannot
do so now that the original article II has disappeared.
As to the second and third remaining elements of article I,
that the President lied about Mr. Bennett's statement to Judge
Wright at the time of the Jones deposition, and that he lied
about his own statements to his staff, I will deal with them in
my discussion of the obstruction charges in article II. Suffice
it to say that nothing in the record as it came to you in
January could support conviction on article I, and nothing
added to the record since then has changed that result.
Let me move to article II. Manager Hutchinson told you in
his original presentation that article II rested on--his
words--``seven pillars of obstruction.'' I had suggested in my
opening statement of a few weeks ago that it would be more
accurate to call them seven shifting sand castles of
speculation, but Manager Hutchinson has not proved willing to
accept my description and so I will accept his. Let's remove
one pillar right at the start.
Article II charges that the President engaged in a scheme
to obstruct the Jones case--the Jones case--and alleges as one
element of this scheme that in the days following January 21
the President lied to his staff about his relationship with Ms.
Lewinsky, conduct that could not possibly have had anything to
do with the Jones litigation.
I will get to the merits of that charge standing alone in a
little while, but I bring up the more--forgive me--technical
argument here, to highlight once more the extent to which the
House simply ignored the most basic legal principles in
bringing these charges to you. I have yet to hear from the
managers a single plausible explanation for the inclusion of
this charge as part of a scheme to obstruct the Jones
litigation, and I can think of none. I am sure that in the 120
minutes remaining to them, some portion of that time will be
spent explaining just this point. And, so, one pillar gone; a
slight list observed.
Next: Ms. Lewinsky's affidavit and the first of the empty
pots. The managers charge that the President corruptly
encouraged a witness to execute a sworn affidavit that he knew
to be perjurious, false, and misleading, and similarly
encouraged Ms. Lewinsky to lie if she were ever called as a
witness. In my opening statement, and in Mr. Kendall's more
detailed discussion, we made two points: First, that Ms.
Lewinsky had repeatedly denied that she had ever been asked or
encouraged to lie; and, second, that there was simply no direct
or circumstantial evidence that the President had ever done
such a thing.
It is not in dispute that the President called Ms. Lewinsky
in the early morning of December 17 to tell her about the death
of Betty Currie's brother, and in the same call that he told
her that she was now listed on the Jones witness list. The
managers have from the beginning relied on one fact and on one
baseless hypothesis stemming from this call which, in the
managers' minds, was the beginning and the middle and the end
of the scheme to encourage the filing of a false affidavit.
There is literally no other event or statement on which they
can rely.
The one fact to which the managers point is Ms. Lewinsky's
testimony that the President said that if she were actually
subpoenaed, she possibly could file an affidavit to avoid
having to testify, and at some point in the call mentioned one
of the so-called cover stories that they had used when she was
still working at the White House--that is, bringing papers to
him. And it is on this shaky foundation, a very slim pillar
indeed, that the managers build the hypothesis.
In the face of the seemingly insurmountable hurdle of Ms.
Lewinsky's repeated denials that anyone ever asked or
encouraged her to lie, the managers have persisted in arguing,
and continue to do so, that the President did somehow encourage
her to lie, even if she didn't know it. Now you have heard that
theme sounded really for the first time on Saturday, and then a
little bit today--even if she didn't know it, because both
really understood that any affidavit Ms. Lewinsky would file
would have to be false if it were to result in her avoiding her
deposition. But neither the fact on which they rely nor their
hypothesis was of much help to the managers before Ms.
Lewinsky's deposition and neither, surely, has any force after
her deposition.
After you saw Ms. Lewinsky's testimony, there can be
nothing left of what was, at best, only conjecture. Even before
her deposition, Ms. Lewinsky had testified, as had the
President in the grand jury, that given the claims being made
in the Jones case, a truthful albeit limited affidavit might--
might--establish that Ms. Lewinsky had nothing relevant to
offer in the way of testimony in the Jones case.
Faced with this record, the managers asked you to authorize
Ms. Lewinsky's deposition, representing that she would--and I
quote, and this is from the managers' proffer--``rebut the
following inferences drawn by White House counsel on key
issues, among others that President Clinton did not encourage
Ms. Lewinsky to file a false affidavit and that President
Clinton did not have an understanding with Ms. Lewinsky that
the two would lie under oath.''
Unhappily for the managers--and perhaps their unhappiness
was best reflected in the tone of Manager Bryant's discussion
on this subject--Ms. Lewinsky's testimony, as you saw yourself
on Saturday, did just the opposite.
In an extended colloquy with Mr. Manager Bryant on the
subject of the affidavit, Ms. Lewinsky made clear, beyond any
doubt, first, that the President had never discussed the
contents of the affidavit with her; second, that there was no
connection between the suggestion that she might file an
affidavit and the reference to any cover story; third, that she
believed it possible to file a truthful affidavit.
You saw much of this portion of Ms. Lewinsky's deposition
on Saturday, and I am not going to impose too much on your
patience, but I do want to play just a very few segments of
that videotape.
First, two segments dealing with the content of the
affidavit.
[Text of videotape presentation:]
Q. Are you, uh--strike that. Did he make any representation
to you about what you could say in that affidavit or--
A. No.
Q. What did you understand you would be saying in that
affidavit to avoid testifying?
A. Uh, I believe I've testified to this in the grand jury.
To the best of my recollection, it was, uh--to my mind came--it
was a range of things. I mean, it could either be, uh,
something innocuous or could go as far as having to deny the
relationship. Not being a lawyer nor having gone to law school,
I thought it could be anything.
Q. Did he at that point suggest one version or the other
version?
A. No. I didn't even mention that, so there, there wasn't a
further discussion--there was no discussion of what would be in
an affidavit.
* * * * *
Q. In his answer to this proceeding in the Senate, he has
indicated that he thought he had--might have had a way that he
could have you--get you to file a--basically a true affidavit,
but yet still skirt these issues enough that you wouldn't be
called as a witness.
Did he offer you any of these suggestions at this time?
A. He didn't discuss the content of my affidavit with me at
all, ever.
Next, a couple of brief segments on the issue of the cover
stories.
[Text of videotape presentation:]
Q. Well, based on prior relations with the President, the
concocted stories and those things like that, did this come to
mind? Was there some discussion about that, or did it come to
your mind about these stories--the cover stories?
A. Not in connection with the--not in connection with the
affidavit.
* * * * *
Q. Did you discuss anything else that night in terms of--I
would draw your attention to the cover stories. I have alluded
to that earlier, but, uh, did you talk about cover story that
night?
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 or bringing me
papers.
Q. I think You have testified that you're sure he said that
that night. You are sure he said that that night?
A. Yes.
Q. Now, was that in connection with the affidavit?
A. I don't believe so, no.
* * * * *
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 the 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 separate 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.
And third, a brief segment on the supposed falsity of any
affidavit that might be filed.
[Text of videotape presentation:]
Q. The night of the phone call, he's suggesting you could
file an affidavit. Did you appreciate the implications of
filing a false affidavit with the court?
A. I don't think I necessarily thought at that point it
would have to be false, so, no, probably not. I don't--I don't
remember having any thoughts like that, so I imagine I would
remember something like that, and I don't, but--
And last, if we might, a brief segment on the question of
whose best interests were being served.
[Text of videotape presentation:]
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.
Brief, put pointed, I think, and I am sure you remember
them from Saturday, and I am sure you will take those excerpts
with you as you move into your deliberations.
There was another issue that surfaced early on, although
perhaps it has dissipated, and that is whether the President
ever saw a draft of Ms. Lewinsky's affidavit, something that
the managers alleged early on but, indeed, as we now know from
that testimony, not only did nobody ever see a draft of the
affidavit, the President and Ms. Lewinsky never even discussed
the content of her affidavit. ``Not ever,'' as she put it,
either on December 17 or on January 5 or on any other date.
According to Ms. Lewinsky, the President told her he didn't
need to see a draft because he had seen other affidavits.
Early on, Manager McCollum speculated for you--speculated
for you--that when the President told Ms. Lewinsky that he
didn't need to see her affidavit because he had seen other
affidavits, he really must have meant that he had seen previous
drafts of hers, and this is what he said:
I doubt seriously the President was talking about 15 other
affidavits of somebody else and didn't like looking at
affidavits anymore. I suspect, and I would suggest to you, that
he was talking about 15 other drafts of this proposed
affidavit, since it had been around the horn a lot of rounds.
That is what Manager McCollum told you. Now we know that
those drafts didn't exist. They never existed. How do we know?
Somewhat belatedly, the managers got around to telling us that.
In describing the testimony they would expect to receive from
Ms. Lewinsky when they moved for the right to take her
deposition, they wrote in their motion:
That same day, January 5, she called President Clinton to
ask if the President would like to review her affidavit before
it was signed. He declined, saying he had already seen about 15
others. She understood that to mean that he had seen 15 other
affidavits rather than 15 prior drafts of her affidavit (which
did not exist).
In sum, one, the only reference to an affidavit in the
December 17 call was the suggestion of the President that
filing one might possibly enable Ms. Lewinsky to avoid being
deposed, itself an entirely legitimate and proper suggestion.
Two, the President and Ms. Lewinsky never discussed the
content of her affidavit on or after December 17.
Three, the President never saw or read any draft of the
affidavit before it was signed.
Four, the President believed that she could file a true
affidavit.
Five, Ms. Lewinsky believed that she could file a true
affidavit.
Six, there is not one single document or piece of testimony
that suggests that the President encouraged her to file a false
affidavit.
If there is no proof the President encouraged Ms. Lewinsky
to file a false affidavit, surely there must be some proof on
the other charge that encouraged her to give perjurious
testimony if she were ever called to testify. Well, there
isn't.
Let's begin by noting something that should help you assess
the President's actions during this period--both the charge
that he encouraged the filing of a false affidavit and the
charge that he encouraged Ms. Lewinsky to testify falsely.
The conversation that the managers allege gave rise to both
offenses is that call of the early morning of December 17. The
managers suggest that the President, in essence, used the
subterfuge of a call to inform Ms. Lewinsky about the death of
Ms. Currie's brother to discuss her status as a witness in the
Jones case. Subterfuge? Come on. A tragedy had befallen a woman
who was Ms. Lewinsky's friend and the President's secretary.
But let's put this in the managers' own context. On
December 6, the President learned that Ms. Lewinsky was on the
Jones witness list. According to the managers, that was a
source of grave concern and spurred intensified efforts to find
her a job--efforts that were still further intensified when, on
December 11, Judge Wright issued her order allowing lawyers to
inquire into the President's relationships with other women.
Yet, I have not heard any explanation as to why the President,
now theoretically so distraught that he was urging Mr. Jordan
to keep Ms. Lewinsky happy by finding her a job, as Manager
Hutchinson would have it, waited until December 17--11 days
after he learned Ms. Lewinsky was on the witness list and 6
days after the supposedly critical events of December 11--to
call and launch his scheme to suborn perjury.
As to the charge of subornation, the managers do concede,
as they must, that the President and Ms. Lewinsky did not even
discuss her deposition on the 17th, logically, I suppose, since
she wasn't actually subpoenaed until 2 days later.
One might think that this would dispose of the matter,
since they do not identify a single other moment in time when
there was any discussion of Ms. Lewinsky's potential testimony.
But once again, having lifted the lid and seen that their pot
was empty, they ask you to find that the same signal that we
now know did not encourage the filing of an affidavit was a
signal to Ms. Lewinsky to lie if she was ever called to
testify. But of course we have long known that there was no
such signal. And the grand jury--as was so often the case, one
of the jurors took it upon him or herself to ask that which the
independent counsel chose not to. You have this before you, and
you have seen it before:
A 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?
[MS. LEWINSKY]: I don't believe so. No.
A JUROR: Can you exclude that possibility?
[MS. LEWINSKY]: 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--
A JUROR: The telephone call.
[MS. LEWINSKY]: 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.
A JUROR: Thank you.
But all of this is not enough to dissuade the managers.
Now that they know that the only two participants in the
relevant conversation denied that there was any discussion of
either the affidavit or the testimony, they have created still
another theory. As Manager Bryant told you last week--and in
essence it was repeated today--``I don't care what was in Ms.
Lewinsky's mind.''
That is quite extraordinary. The only witness, the supposed
victim of the obstruction, the person whose testimony is being
influenced, says that it didn't happen. And the managers
nonetheless want you to conclude, I assume, that some
subliminal message was being conveyed that resulted in the
filing of a false affidavit without the affiant knowing that
she was being controlled by some unseen and unheard force. I
won't comment further. Two more pillars lie in the dust.
Next, the gifts. On this charge, the record is largely, but
in critical respects not entirely, as the record has been from
the beginning. Here is what it shows.
On the morning of December 28, the President gave Ms.
Lewinsky Christmas presents in token of her impending departure
for New York. Ms. Lewinsky testified that she raised the
subject of her subpoena and said something about getting the
gifts out of her apartment, to which she herself has now told
you the President either made no response or said something
like, ``Let me think about it.''
Betty Currie testified consistently that Ms. Lewinsky
called her to ask her to pick up a box and hold them for her.
Ms. Lewinsky has testified equally consistently, and testified
again in her deposition, that it was her recollection that Ms.
Currie called her and said that she understood she ``had
something for her'' or perhaps even the President said, ``You
have something for me.'' The President denies that he ever
spoke to Betty Currie about picking up gifts from Monica
Lewinsky. Betty Currie denies that the President ever asked her
to pick up gifts from Monica Lewinsky.
Ms. Lewinsky has stated on three occasions before her most
recent deposition that Ms. Currie picked up the gifts at 2
o'clock in the afternoon on the 28th. Having been shown the
infamous 3:32 cell phone call, which had previously been
trumpeted by the managers as absolute proof that it was Ms.
Currie who called Ms. Lewinsky, who initiated the process, Ms.
Lewinsky testified on Monday that Ms. Currie came to pick up
the gifts sometime during the afternoon and that there had been
other calls earlier in the day.
But we learned at least a couple of interesting new things
from Ms. Lewinsky on this subject.
First, when she received her subpoena on December 19, 9
days--9 days--before she spoke to the President about them, Ms.
Lewinsky was frightened at the prospect that the Jones lawyers
would search her apartment, and she began to think about
concealing the gifts that she cared most about that would
suggest some special relationship with the President. And as
she told you, she herself decided then that she would turn over
only what she described as the most innocuous gifts, and it was
those gifts that she took with her to see her lawyer, Mr.
Carter, on December 22.
Thus, when she arrived to pick up her Christmas gifts from
the President on December 28, she had already decided that she
would not turn over all the gifts called for by the subpoena
and had already segregated out the ones she intended to
withhold. But she didn't tell the President about that.
Instead, as she testified, she broached the question of what to
do with the gifts and the possibility of giving them to Betty
Currie, again without describing what had already occurred, to
which the President either made no reply or said something
like, ``I'll think about it.''
This testimony sheds light on one of the issues that has
troubled everyone who has tried to make sense out of what
happened on that day. Why would the President, if he were
really worried about Ms. Lewinsky's turning over gifts pursuant
to the subpoena, give her more gifts? From our perspective, the
answer has always been an easy one. He wouldn't have been
concerned. He has testified that he was not concerned about
gifts, that he gives them all the time to all sorts of people,
and he wasn't worried about it.
We know that from Ms. Lewinsky's perspective, as she
explained in her deposition, it also made no difference that
the President was giving her additional gifts, because she had
already decided, having had the subpoena in hand for 9 days,
that she would not turn them over.
A second ray of light also shines on two aspects of the
managers' case from Ms. Lewinsky's deposition.
You may remember that as part of article I in their trial
brief, the managers allege that the President lied to the grand
jury--this is one of the never-ending list of possible
perjuries--that he recalled saying to Ms. Lewinsky on December
28 that she would have to ``turn over whatever she had'' when
she raised the gift issue with him.
The managers sought to obtain from Ms. Lewinsky testimony
that would support that charge of perjury as well as the
concealment charge under article II, but she turned that world
upside down on both the perjury charge and the obstruction
charge.
When asked whether the President had ever said to her,
``You will have to give them whatever you have,'' or something
like that, Ms. Lewinsky testified that FBI Agent Fallon of the
OIC had interviewed her after the President's grand jury
testimony, after they already knew what the President had said
under oath, and asked her whether she recalled the President
saying anything like that to her. I am sure somewhat to the
surprise of Manager Bryant, she testified that she told Agent
Fallon, ``That sounds familiar.''
Now aside from the not-so-minor point that Ms. Lewinsky's
testimony corroborates the President's recollection of his
response and undermines the charge in both article I and
article II, a couple of other things are worth noting. As my
colleague, Ms. Seligman, pointed out to you on Saturday, this
was the first time after all Ms. Lewinsky's recorded versions
of the events of December 28, that we had ever heard that the
President's version sounded familiar to her. And second, there
is not a single piece of paper--at least that we are aware of--
in the entire universe turned over by the independent counsel,
by the House, and thence to us that reflects the FBI's
interview of Ms. Lewinsky. If she hadn't been honest enough to
tell Manager Bryant about it, we and you would never have
known.
Senators, what else is there in the vaults of the
independent counsel or in the memory of his agents that we
don't know about?
Another pillar down.
The job search. It may have become tiresome to hear it, but
any discussion of the job search must begin with Ms. Lewinsky's
testimony oft repeated that no one promised her a job to
influence her testimony. Remember my two themes: Moving
targets, empty pots. They come together here. What the managers
have presented to you in a series of different speculative
theories, as each one is shown to be what it is, they move on
to the next in the hope they will find one, someday, that
actually has a connection to reality. But they cannot find that
elusive theory; for the stubborn facts will not budge, nor will
the stubborn denials by every participant in their mythical
plot.
Now we know that Monica Lewinsky's job search began in the
summer of 1997, well in advance of her being involved in the
Jones case. In October, she interviewed with U.N. Ambassador
Richardson, was offered a job. She had her first meeting with
Mr. Jordan early in November, well before she appeared in the
Jones case. The next contact was actually before Thanksgiving
when she made an effort to set up another meeting with Mr.
Jordan and was told to call back after the holiday. She did, on
December 8, and set up a meeting on December 11--again, before
either she or Mr. Jordan knew that she was involved in the
Jones case.
On that date of December 11 which we have heard so much
about, Mr. Jordan did open doors for Ms. Lewinsky in New York,
but there was no inappropriate pressure. At American Express
and Young & Rubicam she failed on her own, and at Revlon she
succeeded on her own. As Mr. Jordan told the grand jury when
asked whether there was any connection between his assistance
to her and the Jones case, his answer was ``unequivocally,
indubitably no.''
In search of some evidence that Mr. Jordan's efforts were,
indeed, triggering Ms. Lewinsky's status as a witness and
therefore inappropriate, the managers focused on his January 8
call to Mr. Perelman, the CEO of MacAndrews & Forbes,
admittedly a date known to Ms. Lewinsky, to Mr. Jordan, and to
the President. Ms. Lewinsky had reported that her original
interview had not gone well, although we know it actually had,
and that her resume had already been sent over from MacAndrews
& Forbes to Revlon where she ultimately was offered a job.
Mr. Jordan was candid stating he went to the top because he
wanted to get action if action could be had, but the record is
clear that the woman involved at Revlon who interviewed Ms.
Lewinsky had already made a decision to hire her. No one put
any pressure on her. There was no special urgency. There was no
fix. In fact, if you want it known what happens when Mr. Jordan
calls the CEO of a company to get action, look at his call to
the CEO of Young & Rubicam: No job; no job. They made an
independent decision whether or not to hire Ms. Lewinsky.
Other than the managers, there are only two people, as far
as I can tell, who ever tried to create a link between the job
search and the affidavit: Linda Tripp and Kenneth Starr. No
one--not Ms. Lewinsky, not Mr. Jordan, not the President, no
one--ever said anything to so much as suggest the existence of
such a linkage, and the managers can find no proof; which is
not to say they didn't try.
Manager Hutchinson, you will recall, originally asked you
to look at the events of January 5 when he said Ms. Lewinsky
had met with her attorney, Mr. Carter, and then, according to
the managers' account, Mr. Carter began drafting the affidavit
and Ms. Lewinsky was so concerned that she called the President
and he returned her call. The problem with that version, as my
colleague, Mr. Kendall, showed you, was the affidavit wasn't
drafted until January 6. Mr. Carter has so testified.
The managers would also have you believe that Mr. Jordan
was involved in drafting the affidavit and that he was involved
in the deletion of language from the draft that suggested that
she had been alone with the President. Ms. Lewinsky's and Mr.
Jordan's testimony is essentially the same. They talked, Mr.
Jordan listened--you recall him saying, ``Yes, she was talking,
I was doodling,''--he called Mr. Carter, he transmitted to Mr.
Carter some of her concerns, but he made it very clear to Ms.
Lewinsky he wasn't her lawyer. And in words that will resonate
forever, at least among the legal community, Mr. Jordan said,
``I don't do affidavits.'' And, of course, Mr. Carter himself
testified it was his idea to delete the language about being
alone.
The very best the managers can do on this issue is to
establish that Ms. Lewinsky talked to Mr. Jordan in the same
conversation about the job search and about her affidavit. But
as Mr. Jordan told you, Ms. Lewinsky was always talking about
the job search, and he made it very clear to you that there was
no linkage between the two.
If we can play just a very brief section of Mr. Jordan's
deposition.
[Text of videotape presentation:]
Q. In your conversation with Ms. Lewinsky prior to the
affidavit being signed, did you in fact talk to her about both
the job and her concerns about parts of the affidavit?
A. I have never in any conversation with Ms. Lewinsky
talked to her about the job, on one hand, or job being
interrelated with the conversation about the affidavit. The
affidavit was over here. The job was over here.
And of course we have already dispensed with the notion to
the extent that the managers continue to assert that the
President never discussed the contents of the affidavit with
Ms. Lewinsky or even ever saw a draft.
Recognizing that they would never be able to show that the
inception of the job search was linked in any way to the
affidavit, the managers developed a theory which they have
advanced to you that the President committed obstruction of
justice when the job search assistance became, in their words,
``totally interconnected, intertwined, interrelated,'' with the
filing of Ms. Lewinsky's affidavit.
The problem the managers have had, however, is that they
have not been able to figure out when this occurred, why it
occurred, or how it occurred. Think back on how many versions
of their theory you have heard just in the last few weeks.
First, it all started on December 11 when Judge Wright issued
her order permitting Jones' lawyers to take depositions to
prove that the President had relations with other women. That
was what galvanized the President and Mr. Jordan to make real
efforts to find Ms. Lewinsky a job.
Woops, didn't quite fit the facts.
Mr. Jordan met with Ms. Lewinsky and made calls to
prospective employers before the order was issued. Let's try
this. Second, well, it wasn't really the 11th, it was the 5th
when the witness list came out. But they had already told you
in a trial brief quite explicitly, and in the majority report
of the committee to the Congress, that there was ``no
urgency.'' Those were their words; there was ``no urgency''
after December 5. I am a city boy, but that dog went back to
sleep.
Third, as Manager Hutchinson told you on Saturday, what
really happened was that by December 17 the President had ``got
the job search moving'' and thought ``maybe she is now more
receptive,'' and that is why he called Ms. Lewinsky on the 17th
and told her she was on the witness list.
Nice try. No facts.
I don't know whether this chart, which Manager Hutchinson
used, was intended to speak for itself or to be elucidated by
his own comments, but let's look at it. ``December 5th, witness
list--Lewinsky,'' exclamation point. Her name is on it.
``December 6: President meets with attorneys on witness list.''
True.
``December 7th: President and Jordan meet.''
That is also true, but we know they didn't talk about
Monica Lewinsky. I am not quite sure why it is there.
``December 8th: Lewinsky sets up a meeting with Jordan for
the 11th.''
True. At that point, she doesn't know she is on the list
and Mr. Jordan doesn't know she is on the list.
``December 11th: Lewinsky job meeting with Jordan.''
Yes, true. But as we know, well before Judge Wright's order
came out, the two of them still don't know that her name is on
the witness list.
December 17th was the calls.
True. They are on the list.
On December 19, the subpoena was served.
True.
``December 28: President and Lewinsky meet; evidence
(gifts) concealed.''
True, but I am not sure what that means in this context.
Last, interestingly, was breakfast at the Park Hyatt.
``More evidence at risk.''
It is clear that if you string all of these events together
and you have a theory that will link them all together, you
have made some progress. There is only one problem: Other than
what we know to be true on this list, there is nothing other
than surmise that links them together in any fashion that one
could consider improper or certainly illegal. But that is, in
essence, where the managers have brought us in their
theorizing, for their fourth theory is that the pressure did
not really begin to build until Ms. Lewinsky was actually
subpoenaed and began to prepare an affidavit.
On this theory, a call to Mr. Perelman was the final step--
going right to the top of MacAndrews & Forbes to make
absolutely sure that Ms. Lewinsky stayed on the team. But here
there are other facts with which to deal. For example, look
what happened--or more importantly, didn't happen--on December
19. On that day, Monica Lewinsky came, weeping, to Mr. Jordan's
office carrying with her the dreaded subpoena. Mr. Jordan
called the President and visited with him that evening. And you
will recall that they talked in very candid terms to the
President about their relationship. Wouldn't one think that if
the President was, in fact, engaged in some scheme to use a job
in New York to influence Ms. Lewinsky's testimony, this would
be the critical moment, that some immediate steps would be
taken to be absolutely sure that there was a job for her? But
what do we find? Mr. Jordan takes no further action on the job
front until January 8.
There was never so much as a passing reference concerning
any connection between the job search and the affidavit among
any of the three participants--any of them--because there was
not one conversation that anyone could conclude was designed to
implement this nefarious scheme that the managers would have
you find. So now we have an entirely new theory--the ``one-man
conspiracy,'' a beast unknown, I think, to Anglo-American
jurisprudence.
The fact that Ms. Lewinsky--this is on the managers'
theory--didn't know she was on the witness list until December
17, and Mr. Jordan didn't know about it until she was
subpoenaed on the 19th, and Mr. Perelman never knew it, all are
``proof positive'' that the President himself was the
``mastermind'' pulling on unseen strings and influencing the
participants in this drama, without their even knowing that
they were being influenced. Under this theory--the latest in a
long line--Ms. Lewinsky's denial that she ever discussed the
contents of her affidavit with the President, her denial that
there was any connection between the job and her testimony, Mr.
Jordan's denial that there was ever a connection between his
efforts to find her a job and the affidavit, and the fact that
Mr. Jordan never discussed any such connection with the
President, are simply evidence of the fact that there must have
been such a connection; that unbeknownst to Ms. Lewinsky, she
was being corruptly encouraged to file a false affidavit. With
all due respect, somebody has been watching too many reruns of
``The X-Files.''
Confronted with this problem, the managers now offer you
one last theory. With ever-increasing directness, they now
accuse Mr. Jordan himself of obstructing justice by urging Ms.
Lewinsky to destroy her notes. Seemingly, they ask you to
find--even in the face of Mr. Jordan's forceful denials--that
one who would forget a breakfast at the Park Hyatt until
reminded of it by being shown the receipt, and who then
admitted his recollection was refreshed and would admit that he
remembered a discussion of the notes, must have obstructed
justice himself. And, of course, he must have been engaged all
along with an effort to influence Ms. Lewinsky's testimony on
behalf of the President.
Nonsense. Nonsense. And so this pillar returns to the dust
from which it came.
Next, the events surrounding Mr. Bennett's statement to
Judge Wright during the Jones deposition formed the basis for
two charges: First, that the President obstructed justice in
the Jones case; second, that he committed perjury by telling
the grand jury that he really wasn't paying attention at the
critical moment.
Both charges depend on the managers' ability to prove that,
indeed, the President had been paying attention. To do that,
they always rely on the videotape of the deposition in which it
can be seen that the President was looking in the direction of
his lawyer while Mr. Bennett was talking.
But 2 weeks ago, they came to you and they produced, with a
modest flourish, a new bit of evidence--an affidavit from Mr.
Barry Ward, clerk to Judge Wright, trumpeted, in their words,
as ``lending even greater credence to their crime.'' In their
memorandum in support of their request to expand the record by
including Mr. Ward's affidavit, the managers told you the
following, and this is the managers' own language:
From his seat at the conference table next to the judge, he
saw President Clinton listening attentively to Mr. Bennett's
remarks, while the exchange between Mr. Bennett and the judge
occurred.
Then they said:
Mr. Ward's declaration would lend even greater credence to
the argument that President Clinton lied on this point during
his grand jury testimony and obstructed justice by allowing his
attorney to utilize a false affidavit in order to cut off a
legitimate line of questioning. Mr. Ward's declaration proves
that Mr. Ward saw President Clinton listening attentively while
the exchange between Mr. Bennett and the presiding judge
concurred.
But this is what Mr. Ward's affidavit actually says. The
affidavit was attached to the very motion the language of which
I just read to you. I direct your attention only to the last
sentence, because this is the only one of any moment: ``From my
position at the conference table, I observed President Clinton
looking directly at Mr. Bennett while this statement was being
made.''
Search if you will for any evidence relating to whether the
President was looking attentively or not. There is not one iota
of evidence added by the videotape. You were misled. Indeed,
Mr. Ward said to the Legal Times on February 1, 1999, ``I have
no idea if he was paying attention. He could have been thinking
about policy initiatives, for all I know.'' You were misled.
The record before the affidavit is the record after the
affidavit. The managers ask that you remove the President of
the United States on the basis of the videotape showing that he
was looking in the direction of his lawyer.
It was not much of a pillar to start with.
There is no dispute of the conversation of January 18
between the President and Ms. Currie. There is no dispute that
President Clinton called Ms. Currie into the White House on
Sunday, January 18, the day after his deposition, and asked her
certain questions and made certain statements about his
relationship with Ms. Lewinsky. The only dispute is whether, in
doing so, the President intended to tamper with a witness. The
managers contend that he was corruptly attempting to influence
Ms. Currie's testimony. The President denies it.
Since we know that Ms. Currie was not on the Jones witness
list at the time of the President's deposition, or at the time
of either of the conversations with Ms. Currie, and we know
that discovery was about to end, the managers have argued that
the President's own references to her in the Jones deposition
constituted an invitation to the Jones lawyers to subpoena her.
They argue that proof of that invitation can be found in the
witness list signed by the Jones lawyers on January 22, which
listed Ms. Currie and other potential witnesses.
When I spoke to you on January 19, I told you that Ms.
Currie had never been placed on the witness list. I was wrong.
Manager Hutchinson has quite properly taken me to task for it.
But I fear that he became so caught up in this information that
he has lost sight of its true significance, or rather a lack
thereof.
In order to convince you that Betty Currie was going to be
called by the Jones lawyer when the President spoke to her on
January 18, the managers, somewhat like Diogenes, lit their
lantern and sought out the most reliable witness they could
find, a witness whose credibility was beyond question, who had
no ulterior motive, no bias--Paula Jones' lawyer. They brought
it to you in a form that they hoped would allow his motive and
bias to go untested.
Remember how the managers told you that it is important to
look a witness in the eye to test his demeanor. I doubt that
you need to do that to understand what might color Mr. Holmes'
view of the world. Let's look at what he had to say. You have
in the exhibits before you an unredacted witness list attached
to Mr. Holmes' affidavit. I have put up on the easels the
redacted list as it was originally used by the managers a few
weeks ago because I really see no purpose in unduly exposing
the names of the people who are on that witness list. But let
me direct you to these words just to highlight it: ``Under
Seal.''
You will remember that the President has been criticized
for violating a gag order when he spoke to his own secretary
about his deposition. What then do we say when the managers
produce a document from a lawyer for one of the parties that is
still under seal, not yet released by the court, and reveals
the names of individuals who are no part of these proceedings?
Surely the managers could have made their point just as well
without such a revelation.
Mr. Holmes states that the Jones lawyers had two reasons
for putting Ms. Currie's name on the witness list: One, because
of President Clinton's deposition testimony; and, two, because
they had ``received what they considered to be reliable
information that Ms. Currie was instrumental in facilitating
Monica Lewinsky's meetings with Mr. Clinton and that Ms. Currie
was central to the cover story Mr. Clinton and Ms. Lewinsky had
developed to use in the event their affair was discovered.''
They don't tell us where he got this reliable information. But
of course we know.
Let's figure out whether in fact Betty Currie really made
it on the list because of the President's testimony. If you
look at the number of times she is mentioned in the deposition,
it becomes conventional wisdom that the President inserted her
name into his testimony so frequently and so gratuitously that
he did in fact invite the Jones lawyers to call her and, thus,
must have known that she was going to be a witness when he
spoke to her on January 18. But if you look at the deposition,
you will find that the first time her name is mentioned, the
President is simply responding to a question about his earlier
meetings with Ms. Lewinsky and stated that Betty was present.
The lawyers for the plaintiff then asked 13 questions, give
or take a few, about Ms. Currie. We know there is no secret
here. They got their information from Linda Tripp. And Linda
Tripp surely told them about Ms. Lewinsky's relationship with
Ms. Currie. It was only in response to a couple of their
questions about whether letters had ever been delivered to Ms.
Currie and whether she stated at some extraordinarily late hour
that the President said, ``You'll have to ask her.'' He did not
invite, he did not suggest to them that they call Ms. Currie.
They knew, whatever they needed to know about Ms. Currie, to
put her on their witness list.
To judge further whether Ms. Currie made it on the list
because of the President's invitation, or because they already
knew about witnesses from Ms. Tripp, let me direct your
attention--if you look at the exhibit in front of you rather
than the redacted version here, the first listed on the witness
list is No. 165. Her name does not come up at all in the
deposition. But we know that she was in fact the subject of
conversation surreptitiously recorded between Ms. Tripp and Ms.
Lewinsky. And note that the name of Vernon Jordan is not on the
list. They are the ones, the Jones lawyers are the ones, who
first bring them up. And we know, of course, that they knew
from Ms. Tripp that he was already involved in this scenario.
Thus, neither the January 22 witness list nor Mr. Holmes'
affidavit supported the managers' theory. The President did not
know that Ms. Currie would be a witness when he spoke to her
after her deposition, and he could not, therefore, have
tampered with the witness.
Well beyond their statement about how they got this
information, Mr. Holmes volunteers that they didn't get it from
the Washington Post, or perhaps not. But it is clear that in
the days after the Post article, we know that some of the names
on the list came from the press reports, we know that Jones
lawyers began tracking the newly public activities of the
independent counsel, which was issuing its own subpoenas in the
hours and days following the lawyers' release. And for some
insight into what they believe the independent counsel thought
was going on, look at the pleading they filed with Judge Wright
on Wednesday, January 28, to prevent the Jones lawyers from
continuing to use their investigation as an aid--that is, the
independent counsel's investigation--as an aid to civil
discovery.
The pleading said, ``As recently as this afternoon,
plaintiff's counsel caused process to be served on Betty Currie
who appeared before the grand jury in Washington yesterday.
Such deliberate and calculated shadowing of the grand jury's
investigation will necessarily pierce the veil of grand jury
secrecy.''
The managers have criticized us for ignoring the second
conversation between the President and Ms. Currie, suggesting
that I suppose it takes on an even more sinister cast than the
first. But there is simply nothing of any substance to take
from this second conversation that adds to the events of
January 18. It is clear that the conversation occurred on
Tuesday, January 20, before the Starr investigation became
public. The managers disingenuously have suggested in their
exhibit, the one they distributed on Saturday, that this
conversation occurred after the Post story appeared. If you
look at the exhibit that was used on Saturday, you will see:
January 20, Post story is known. Of course, that's late at
night. January 21, Post story was on the Internet. The
President calls Betty for 20 minutes. And then sort of sneaking
it in down here, January 20 or 21, President coaches Currie for
the second time.
But the record shows this: Ms. Currie has said that the
conversation occurred ``whenever the President was next in the
White House.'' That is after the Sunday conversation. And that
was Tuesday, the 20th, the day after the Martin Luther King
holiday. Thus, the second conversation is of no greater legal
significance than the first since the President knew no more
about Ms. Currie's status as a witness on Tuesday than he did
on Sunday.
In sum, the managers have tried to convince you that the
President knew or must have known that Betty Currie would be a
witness in the Jones case. If anything, we now know that the
reason she was put on the January 22 list, along with many
others, had more to do with Linda Tripp than anything else.
But putting this aside for the moment; that is, putting
aside the question whether the President could have had any
reason to believe that Ms. Currie would be a witness, look at
whether Ms. Currie herself believed that she was being
corruptly influenced on January 18. In response to continuing
efforts by the prosecutors to get her to admit that she felt
some untoward pressure from the President, she testified--and
you have seen this before as well:
. . . 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.
* * * * *
Q. That was your impression, that he wanted you to say--because he
would end each of the statements with ``Rights?,'' 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.
So on a human level, we have the President, who has just
seen his worst nightmare come true, and who knows that he is
about to face a press tidal wave that will wash over him and
his family and the country, and we have his secretary who knows
of, indeed has been a part of, his relationship with Monica
Lewinsky but knows nothing about the long-since ended improper
aspects of that relationship--we have a conversation that was
the product of the emotions that were churning through the
President's very soul on that day. What we do not have is an
attempt to corruptly influence the testimony of the witness.
Only one pillar left. The managers ask the Senate to find
that the President's conversations with Mr. Blumenthal and
other aides was an effort to influence their testimony before
the grand jury. Their theory, much as was true of some of their
other theories, flounders on shoals that they don't account
for. As they would have it, in the days immediately following
the Lewinsky story, the President spoke with a few members of
his senior staff, as they would allege, knowing that they would
probably be grand jury witnesses and misled them about his
relationship with Ms. Lewinsky, so that they would convey that
misinformation to the grand jury when they were called.
Now, just so that you can see for yourself what the
President testified to in the grand jury on the subject, I want
to play about 3 or 4 minutes of that testimony for you.
[Text of videotape presentation:]
Q. If they 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, in the days after the story
broke; do you have any reason to doubt them?
PRESIDENT CLINTON. No. The--let me say this. It's no secret to
anybody that I hoped that this relationship would never become public.
It's a matter of fact that it had been many, many months since there
had been anything improper about it, in terms of improper contact. I--
Q. Did you deny it to them or not, Mr. President?
PRESIDENT CLINTON. Let me finish. So, what--I did not want to
mislead my friends, but I wanted find language where I could say that.
I also, frankly, did not want to turn any of them into witnesses,
because I--and, sure enough, they all became witnesses.
Q. Well, you knew they might be----
PRESIDENT CLINTON. And so----
Q.--witnesses, didn't you?
PRESIDENT CLINTON. And so I said to them things that were true
about this relationship. That I used--in the language I used, I said,
there's nothing going on between us. That was true. I said, I have not
had sex with her as I defined it. That was true. And did I hope that I
would never have to be here on this day giving this testimony? Of
course. But I also didn't want to do anything to complicate this matter
further. So, I said things that were true. They may have been
misleading, and if they were I have to take responsibility for it and
I'm sorry.
Q. It may have been misleading, sir, and you knew though, after
January 21st when the Post article broke and said that Judge Starr was
looking into this, you knew that they might be witnesses. You knew that
they might be called into a grand jury, didn't you?
PRESIDENT CLINTON. That's right. I think I was quite careful what I
said after that. I may have said something to all these people to that
effect, but I'll also--whenever anybody asked me any details, I said,
look, I don't want you to be a witness or I turn you into a witness or
give you information that could get you in trouble. I just wouldn't
talk. I, by and large, didn't talk to people about this.
Q. If all of these people--let's leave out Mrs. Currie for a
minute. Vernon Jordan, Sid Blumenthal, John Podesta, Harold Ickes,
Erskine Bowles, Harry Thomasson, after the story broke, after Judge
Starr's involvement was known on January 21st, have said that you
denied a sexual relationship with them. Are you denying that?
PRESIDENT CLINTON. No.
Q. And You have told us that you----
PRESIDENT CLINTON. I'm just telling you what I meant by it. I told
you what I meant by it when they started this deposition.
Q. You have told us now that you were being careful, but that it
might have been misleading. Is that correct?
PRESIDENT CLINTON. It might have been. Since we have seen this
four-year, $40-million-investigation come down to parsing the
definition of sex, I think it might have been. I don't think at the
time that I thought that's what this was going to be about. In fact, if
you remember the headlines at the time, even you mentioned the Post
story. All the headlines were--and all the talking, people who talked
about this, including a lot who have been quite sympathetic to your
operation, said, well, this is not really a story about sex, or this is
a story about subornation of perjury and these talking points, and all
this other stuff. So, what I was trying to do was to give them
something they could--that would be true, even if misleading in the
context of this deposition, and keep them out of trouble, and let's
deal--and deal with what I thought was the almost ludicrous suggestion
that I had urged someone to lie or tried to suborn perjury, in other
words.
It is clear from that excerpt, I think, that in the hours
and days immediately following the release of the Post story,
the President was struggling with two competing concerns: How
to give some explanation to the men and women he worked with
every day, and worked with most closely, without putting them
in a position of being grand jury witnesses. But he was not in
any sense seeking to tamper with them or to obstruct the grand
jury's investigation.
Putting aside for the moment our strenuous disagreement
both with the factual underpinning of and the legal conclusions
that flow from the managers' analysis of these events, I find
it difficult to figure out how it is that they believe the
President intended that his statement to Mr. Blumenthal or his
statement to Mr. Podesta would involve their conveying false
information to the grand jury, or that he sought in some
fashion to send that message to the grand jury when, at the
very moment that those aides were first subpoenaed, he asserted
executive privilege to prevent them from testifying before the
grand jury. For someone who wanted Mr. Blumenthal to serve, as
the managers would have it, as his messenger of lies, that is
strange behavior indeed.
There is an issue here that I don't really want to get into
at length, and I, not having heard the last 2 hours of the
managers' presentation, don't know whether they are going to
get into, and that is Manager Graham's favorite issue, the
question of whether there was some scheme to smear Monica
Lewinsky--early, middle, or late. Other than to say that no
such plan ever existed, I just want to ask the managers this.
Although I must admit that for the first time in my life I have
heard Marlene Dietrich's name used as a pejorative--what was
Manager Bryant saying about Ms. Lewinsky? That she was lying?
That she misled the managers? That because her testimony helped
the President, they were now going to attack her character and
her integrity? I don't know how many of you have seen ``Witness
For The Prosecution,'' either before or after Mr. Bryant used
that example, but ask yourselves: What was he saying? What was
he doing?
Ladies and gentlemen of the Senate, I don't know whether
there is a market for used pillars, but they are all lying in
the dust.
It is difficult for me as a lawyer, as an advocate for my
client, to speak to this body about lofty constitutional
principles without seeming merely to engage in empty rhetoric.
But I would like to think, I guess, that if there were ever a
forum in which I could venture into that realm, be excused for
doing so, could be heard without the intervening filter of
skepticism that I fear too often lies between lawyer and
listener, this is the time and this is the moment. Only once
before in our Nation's history has any lawyer had the
opportunity to make a closing argument on behalf of the
President of the United States and only once before has the
Senate ever had to sit in judgment on the head of the executive
branch.
We all must cast an eye to the past, looking over our
shoulders to be sure that we have learned the right lessons
from those who have sat in this Chamber before us. But we also
must look to the future, to be sure that we leave the right
lessons to those who come after us. We hope that no one will
ever have need of them, but if they should, we owe them not
only the proper judgment for today but the proper judgment for
all time.
You have heard the managers tell you very early on in these
meetings that we have advanced a ``so what'' defense; that we
are saying the President's conduct is really nothing to be
concerned about; that we should all simply go home and ignore
what he has done. And that, of course, to choose a word that
would have been familiar to the framers themselves, is
balderdash.
If you want to see ``so what'' in action, look elsewhere.
``So what'' if the framers reserved impeachment and removal for
only those offenses that threaten the state? ``So what'' if the
House Judiciary Committee didn't quite do their constitutional
job, if they took the independent counsel's referral and added
a few frills and then washed their hands of it? ``So what'' if
the House approved articles that wouldn't pass muster in any
court in the land? ``So what'' if the managers have been
creating their own theories of impeachment as they go long? And
``so what,'' and ``so what,'' and ``so what?''
By contrast, what we offer is not ``so what,'' but this:
Ask what the framers handed down to us as the standard for
removing a President. Ask what impeachment and removal would
mean to our system of government in years to come. Ask what you
always ask in this Chamber: What is best for the country? No,
the President wouldn't allow any of us to say ``so what,'' to
so much as suggest that what he has done can simply be
forgotten. He has asked for forgiveness from his family and
from the American people, and he has asked for the opportunity
to earn back their trust.
In his opening remarks, Manager Hyde questioned whether
this President can represent the interests of our country in
the world. Go to Ireland and ask that question. Go to Israel
and Gaza and ask that question. If you doubt whether he should,
here at home, continue in office, ask the parent whose child
walks safer streets or the men and women who go off to work in
the morning to good jobs.
We are together, I think, weavers of a constitutional
fabric in which all of us now are clothed and generations will
be clothed for millennia to come. We cannot leave even the
smallest flaw in that fabric, for if we do, one day someone
will come along and pull a thread and the flaw will grow and it
will eat away at the fabric around it and soon the entire cloth
will begin to unravel. We must be as close to perfect in what
we do here today as women and men are capable of being. If
there is doubt about our course, surely we must take special
care, as we hold the fabric of democracy in our hands, to leave
it as we found it, tightly woven and strong.
Before today I wrote down the following: ``The rules say
that the managers will have the last word.'' The rules today
say the managers will have the last paragraphs. But that truly
isn't so, because even when they are finished, theirs will not
be the last voices you hear. Yes, one or more of them will now
rise and come to the podium and tell you that they have the
right of it and we the wrong, that our sense of what the
Constitution demands is not theirs and should not be yours.
That is their privilege.
But as each of them does come before you for the final
time, and as you listen to them, I know that you will hear not
their eloquence, as grand as it may be; not the pointed jibes
of Manager Hutchinson nor the stentorian tones of Manager Rogan
nor the homespun homilies of Manager Graham nor the grave
exhortations of Manager Hyde, but voices of greater eloquence
than any of us can muster, the voices of Madison and Hamilton
and the others who met in Philadelphia 212 years ago, and the
voices of the generations since, and the voices of the American
people now, and the voices of generations to come. These, not
the voices of mere advocates, must be your guide.
It has been an honor for all of us to appear before you in
these last weeks on behalf of the President. And now our last
words to you, which are the words I began with: William
Jefferson Clinton is not guilty of the charges that have been
brought against him. He did not commit perjury. He did not
commit obstruction of justice. He must not be removed from
office.
Thank you very much.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Recess
Mr. LOTT. Mr. President, I ask unanimous consent we take a
15-minute recess.
There being no objection, at 4:19 p.m. the Senate recessed
until 4:41 p.m.; whereupon, the Senate reassembled when called
to order by the Chief Justice.
The CHIEF JUSTICE. The Senate will be in order. The Chair
recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I believe now we are ready to
proceed with the managers from the House. I understand that
they do have a 2-hour presentation. I will look for guidance
from the Chief Justice about whether we should take a break for
the last 45 minutes--that would be after Mr. Manager Rogan--if
at all.
The CHIEF JUSTICE. Very well.
The Chair recognizes Mr. Manager McCollum.
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice and
Members of the Senate.
At the outset of my closing remarks, I would like to lay
the record straight on a couple of matters. With all due
deference to White House counsel, the suggestion that Mr. Ruff
made at the beginning of his closing, that we were somehow
being unfair to him on the timing today of the rebuttal, seems
to me to be a little strained. ``Methinks thou doth protest too
much,'' was a remark I used earlier, a quote from Shakespeare,
and I think it is appropriate here, too, because if you recall,
we had no rebuttal at all as you normally would have in the end
of our case, to begin with. Secondly, we thought we ought to
have live witnesses here. We haven't had those. The list could
go on. I really don't think we are being unfair.
Secondly, I would like to make one correction and make a
clear point. I am sure it was not intended, but in your
remarks, I believe, Mr. Ruff, you indicated there was no
history with regard to ``beyond a reasonable doubt'' standard.
Maybe I misunderstood that, but I want the record to be clear
that in the Claiborne case there was, in fact, a vote that took
place here in the case of Judge Claiborne, 75-17, saying that
that standard did not apply to impeachment cases.
Having said that, I would like to move on to my own
thoughts. Notwithstanding the clever and resourceful arguments
that White House counsel have made to you today, and in the
past few weeks, I suspect that most of you--probably more than
two-thirds--believe that the President did, indeed, commit
most, if not all, of the crimes he is charged with under these
articles of impeachment. I suspect that a great many of you
share my view that these are high crimes and misdemeanors.
But nonetheless, it is my understanding that some of you
who share these views are not prepared to vote to convict the
President and remove him from office. That instead, you are of
the mind at the moment--subject to our persuading you
otherwise--in your own debate, to acquit him.
Ultimately, the choice is yours, not ours. But I would like
to spend a few moments with you reviewing just a few of the
facts--not many--and suggesting to you what I believe we
managers believe would be some very significant negative
consequences of failing to remove this President.
Having heard all of the evidence over the past few days and
weeks, there should be little doubt that beginning in December
1997 William Jefferson Clinton set out on a course of conduct
designed to keep from the Jones court the true nature of his
relationship with Monica Lewinsky. Once he knew he would have
to testify, he knew he was going to lie in his deposition. And
he knew he was going to have to lie, not only himself but get
Monica Lewinsky to lie--if he was going to be successful--and
he was going to have to get his personal secretary to lie about
his relationship, and have his aides and others help cover them
up if he would be successful in lying in the Jones court
deposition.
He did all of these things. And then he chose to lie to the
grand jury again, because if he did not, he would have not been
able to protect himself from the crimes he had already
committed.
No amount of arguments by White House counsel can erase one
simple fact: If you believe Monica Lewinsky, you cannot believe
the President. If you believe Monica Lewinsky, the President
committed most of the crimes with which he is charged in these
arguments today.
For example, while the President did not directly tell her
to lie, he never advised her what to put in her affidavit, she
knew from the December 17 telephone conversation with the
President that he meant for her to lie about the relationship
and file a false affidavit, and he would lie as well.
I want to refresh your recollection. These charts we put up
some time before--you have them in front of you. This is a
direct quote from her. We showed this on television Saturday,
where she was reading from her grand jury deposition and
confirming, this is, indeed, what she said and what she--her
interpretation of that affidavit, phone conversation, despite
everything else you heard.
She said:
For me, the best way to explain how I feel what happened
was, you know, no one asked me or encouraged me to lie, but no
one discouraged me either. . . .
. . . It 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
be humiliated in front of the entire world about what we've
done,'' which I would have fought him on probably. That was
different. And by him not calling me and saying that, you know,
I knew what that meant. . . .
``I knew what that meant.''
She lied in that affidavit. The President, clearly,
intended to influence her by suggesting the affidavit and all
the other things that went on in that conversation, and all of
the circumstances that were there.
Monica Lewinsky was equally clear in her testimony to you
Saturday that Betty Currie called her about the gifts, not the
other way around. And surely nobody believes that Betty Currie
would have called Monica Lewinsky about the gifts on December
28 unless the President had asked her to do so.
Then the day after the President's deposition in the Jones
case, the President clearly committed the crimes of witness
tampering and obstruction of justice when, in logical
anticipation of Betty Currie being called as a witness, he said
to Betty Currie: ``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 can't do that.''
I am not going to rehash all of the evidence in this case
again, but it is my understanding that some of you may be
prepared to vote to convict the President on obstruction of
justice and not on perjury. I don't know how you can do that. I
honestly don't know how anybody can do that. If you believe
Sidney Blumenthal's testimony that the President told him that
Monica Lewinsky came at him and made a sexual demand and that
he rebuffed her and that she threatened him and said she would
tell people they had an affair, and that she was known as a
stalker among her peers, surely you must conclude that the
President committed perjury when he told the grand jury that he
told his aides, including Blumenthal, nothing but the truth,
even if misleading.
The exact quotes, people are worried about the exact
quotes. What are the words?
And so I said to them things that were true about this
relationship . . . so, I said things that were true. They may
have been misleading . . . so, what I was trying to do was to
give them something that could--that would be true, even if
misleading. . . .
That was played on television in the White House
presentation a few minutes ago. That was perjury. What he told
Sidney Blumenthal was not true. It wasn't just misleading, it
was not true. He knew it was not true and it was perjury in
front of the grand jury.
If you believe the President committed the crimes of
witness tampering and obstruction of justice when he called
Betty Currie to his office the day after his deposition and
told her, ``You were always there when she was, right''--the
ones I just read to you, and the other statements to coach
her--surely you must also conclude that the President committed
perjury before the grand jury when he told the grand jurors his
purpose in making these statements.
These are his exact words to the grand jurors:
I was trying to figure out what the facts were. I was
trying to remember. I was trying to remember every time I had
seen Ms. Lewinsky.
That is not true. He knew that was not true. That is not
what he was doing. No one can rationally reason that that is
what he was trying to do when he made the coaching statements
to Ms. Currie. That was perjury in front of the grand jury.
We have heard a lot of talk about the civil deposition.
Nobody is trying to prove up that deposition or is lying in
here today. Nobody is trying to use that as a duplication or
anything else of the sort. But the President said before the
grand jurors:
My goal--
Talking about the Jones case deposition--
in this deposition was to be truthful . . . .
That is the lie. That is the perjury. That is as simple as
the second count of the perjury article is. Does anybody
believe, after hearing all of this, that the goal of the
President in the Jones deposition was to be truthful? He lied
to the grand jury and committed perjury.
Last but not least, if you believe Monica Lewinsky about
the acts of a sexual nature that they engaged in, how can you
not conclude the President committed perjury when he
specifically denied those acts? Those were very explicit. Mr.
Ruff suggested that maybe this is a subjective question. Maybe
about the interpretation of the definition you might call it
subjective. We are not going to go over it again today, but he
used specific words that he confirmed were in that definition
and said, ``I did not do those things. I did not touch those
parts.'' Monica Lewinsky, if you believe her, testified that he
did do those things--many times.
He committed perjury when he said he didn't do those
things, if you believe Monica Lewinsky. If you are going to
vote to convict the President on the articles of impeachment
regarding obstruction of justice, I urge you in the strongest
way to also vote to convict him on the perjury article as well.
I think you would be doing a disservice not to do that, and it
would be sending a terrible message about perjury and the
seriousness of it for history and to the American people.
As you have seen in the Federal Sentencing Guidelines,
which Mr. Ruff talked about a while ago, perjury and
obstruction of justice do have, under the baseline guidelines,
a higher amount of sentencing than simple, plain ``vanilla''
bribery does. That is where they start. He is right, you can
get enhancements for aggravating circumstances for bribery in
certain cases, and you can get a greater sentence. But so can
you get a greater sentence for perjury if there was a
significant effort to wrongfully influence the administration
of justice, for example; and you can get a significantly
enhanced sentence for perjury if you committed perjury, and so
on.
We didn't choose to bring up a litany and show all the
enhancements. Of course, you can do that. But for the pure
base, there is no question about it.
The other significant thing that you will recall I brought
up--some of us did--a couple of weeks ago is witness bribery.
Bribing a witness is treated more severely under sentencing
guidelines for base sentencing than ordinary bribery is.
Clearly, all three are high crimes and misdemeanors.
What are the consequences of failing to remove this
President from office if you believe he committed the crimes of
perjury and obstruction of justice? What are the consequences
of failing to do that? What is the downside?
First, at the very least, you will leave a precedent of
doubt as to whether perjury and obstruction of justice are high
crimes and misdemeanors in impeaching the President. In fact,
your vote to acquit under these circumstances may well mean
that no President in the future will ever be impeached or
removed for perjury or obstruction of justice. Is that the
record you want?
Second, you will be establishing the precedent that the
standard for impeachment and removal of a President is
different from that of impeaching or removing a judge or any
other official while, arguably--although it never happened--a
Federal judge could be removed for the lesser standard under
the good behavior clause of the Constitution. Such a removal
would have to be by a separate tribunal, by a procedure set by
statute, because under the impeachment provisions of the
Constitution which all judges have been removed under
previously, the same single standard exists for removing the
President as for removing a judge. That standard is that you
have to have treason, bribery, or other high crimes and
misdemeanors.
So while the Constitution on its face does not make a
distinction for removing a President or removing a judge, if
you vote to acquit, believing that the President committed
perjury and obstruction of justice, for all times you are going
to set a precedent that there is such a distinction.
Third, if you believe the President committed the crimes of
perjury and obstruction of justice and that they are high
crimes and misdemeanors, but you do not believe a President
should be removed when economic times are good and it is
strongly against the popular will to do so, by voting to acquit
you will be setting a precedent for future impeachment trials.
Can you imagine how damaging that could be to our
constitutional form of government, to set the precedent that no
President will be removed from office for high crimes and
misdemeanors unless the polls show that the public wants that
to happen? Would our Founding Fathers have ever envisioned
that? Of course not. Our Constitution was structured to avoid
this very situation.
Fourth, what happens to the rule of law if you vote to
acquit? What damage is done for future generations by a vote to
acquit? Will more witnesses be inclined to commit perjury in
trials? Will more jurors decide that perjury and obstruction of
justice should not be crimes for which they convict? No
military officer, no Cabinet official, no judge, no CEO of a
major corporation, no president of a university, no principal
of a public school in this Nation would remain in office, no
matter how popular they were, if they committed perjury and
obstruction of justice as charged here.
To vote to acquit puts the President on a pedestal which
says that, as long as he is popular, we are going to treat him
differently with regard to keeping his job than any other
person in any other position of public trust in the United
States of America. The President is the Commander in Chief; he
is the chief law enforcement officer; he is the man who
appoints the Cabinet; he appoints the judges.
Are you going to put on the record books the precedent that
all who serve under the President and whom he has appointed
will be held to a higher standard than the President? What
legacy to history is this? What mischief have you wrought to
our Constitution, to our system of government, to the values
and principles cherished by future generations of Americans?
All this because--I guess this is the argument--Clinton was
elected and is popular with the people? All this, when it is
clear that a vote to convict would amount to nothing more than
the peaceful, orderly, and immediate transition of government
of the Presidency to the Vice President?
William Jefferson Clinton is not a king; he is our
President. You have the power and the duty to remove him from
office for high crimes and misdemeanors. I implore you to
muster the courage of your convictions, to muster the courage
the Founding Fathers believed that the Senate would always have
in times like these. William Jefferson Clinton has committed
high crimes and misdemeanors. Convict him and remove him.
I yield to Mr. Canady.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Canady.
Mr. Manager CANADY. Thank you, Mr. Chief Justice.
Members of the Senate, during the next few minutes I will
address the constitutional issue you are called on to decide in
this case: Are the crimes charged against the President
offenses for which he may be removed from office? Are these
crimes high crimes and misdemeanors? Are these crimes that
proceed, as Alexander Hamilton said, ``from the abuse or
violation of some public trust?''
The President's lawyers have argued vigorously that even if
all the charges against the President are true, the
Constitution forbids the removal of this President. They
contend that this isn't even a close case, that the crimes
charged against the President are far removed from the
constitutional category of high crimes and misdemeanors--a
category of offenses they have sought to restrict narrowly to
misconduct causing ruinous harm to the system of government.
While the President's lawyers have been consistent in
urging a narrow and restricted understanding of the impeachment
and removal power, they have not been--and I repeat--they have
not been consistent in describing the standard used to
determine if high crimes and misdemeanors have been committed.
In their submission to the House of Representatives they
stated unequivocally that ``the Constitution requires proof of
official misconduct for impeachment.'' Those are their words. I
quote them again. ``The Constitution requires proof of official
misconduct for impeachment.'' Indeed, that statement was the
primary heading for their whole argument on constitutional
standards. And likewise, in their trial memorandum submitted to
the Senate, they argue that impeachment should not be used to
punish private misconduct.
Subsequently, they have apparently abandoned this position,
recognizing that it would lead to the absurd result of
maintaining in office Presidents who were undoubtedly unfit to
serve. They now begrudgingly concede that a President is not
necessarily impeached and removed simply because these crimes
did not involve the abuse of powers of his office. They have
been driven to concede there are at least some circumstances in
which a President may be removed for crimes not involving what
they call ``official misconduct.'' But, of course, they contend
that the circumstances in this case don't even justify
consideration of removal.
In the proceedings in the House and in their trial
memorandum submitted to the Senate, the President's lawyers
made much of the argument that tax fraud by a President of the
United States would not be sufficiently serious to justify
impeachment and removal. I had mentioned this before in these
proceedings, and I mention it again now because it vividly
demonstrates the low standard of integrity, the pathetically
low standard of integrity that would be established for the
Presidency if the arguments of the President's lawyers are
accepted by the Senate.
Perhaps I missed something, but I do not recall any mention
of the tax fraud issue by the President's lawyers in the course
of their various presentations to the Senate. Could it be that
the President's lawyers have come to understand that the
argument that tax fraud is not an impeachable offense does not
strengthen their case, but on the contrary highlights the
weakness of their case? Tax fraud by a President, like lying
under oath and obstruction of justice by a President in this
case, would of course be wrong. It would be shameful,
indefensible, unforgivable, but--this is the big ``but''--it
would not be impeachable, they say; not even a close case. Bad?
Yes. But clearly not impeachable. And why that? Why would it
not be impeachable? Why is it clearly, unquestionably
unimpeachable? This is the answer. This is the heart and soul
of the President's defense. Tax fraud and a host of undefined
other crimes, like lying under oath and obstruction of justice
in this case, are just not serious enough for impeachment and
removal. That is the answer. That is the defense. It is just
not serious enough. All the grand legal argument, all the fine
legal distinctions come down to this marvelously simple
proposition: It is just not serious enough.
Let me refer you once again to a statement from the 1974
Report on Constitutional Grounds for Presidential Impeachment
prepared by the staff of the Nixon impeachment inquiry. I want
to cite a portion of that report that I have previously cited
to you. The President's lawyers have also cited this very same
statement in both their trial memorandum and their argument
during these proceedings.
This is what the report says:
Because impeachment of a President is a grave step for the
Nation it is to be predicated only upon conduct seriously
incompatible with either constitutional form and principles of
our government or the proper performance of constitutional
duties of the Presidential office. For our purposes now,
impeachment is to be predicated only upon conduct seriously
incompatible, or the proper performance of constitutional
duties of the Presidential office.
That is a standard the managers accept. That is a standard
the President's lawyers apparently also accept, and that is a
standard I hope all 100 Members of the U.S. Senate can accept.
I believe we can reach agreement on this standard. The problem
comes, of course, in applying the standard. There is the rub. A
wide gulf separates us on how this standard should be applied.
The President's lawyers say that under this standard the case
against the President isn't even worth considering. The
managers argue on the contrary, that a conscientious
application of the standard leads to the firm conclusion that
the President should be convicted and removed.
Our fundamental difference goes to the issue of
seriousness. It all goes back to the claim of the President's
lawyers that his offenses just are not serious enough to
justify removal.
I think we have agreement that obstruction of justice and
lying under oath are incompatible with the proper performance
of the constitutional duties of the Presidential office. A
President who has lied under oath and obstructed justice has by
definition breached his constitutional duty to take care that
the laws be faithfully executed.
Such conduct is directly and unambiguously at odds with the
duties of this office. So far so good. But here is the real
question. Is that conduct seriously incompatible with the
President's constitutional duties?
That is the question you all must answer. If you say yes,
it is seriously incompatible, you must vote to convict and
remove the President. If you say no, you must vote to acquit.
The President's defenders have not offered a clear guide to
determining what is serious enough to justify removal. Instead,
they have simply sought to minimize the significance of the
particular offenses charged against the President.
Today we heard and attempt to minimize the significance of
perjury. I was somewhat amazed to hear that. There was no
mention made of what the first Chief Justice of the United
States, Justice Jay, had to say about perjury, being of all
crimes the most pernicious to society. That was omitted from
the President's analysis.
But let me say this: I believe that we should focus on any
mitigating circumstances. We should also focus on the
aggravating circumstances that relate to the particular facts
of a given case. I would like to briefly review the factors
advanced at mitigating the seriousness of the President's
crimes.
We all know what the leading mitigating factor is. We have
all heard this 1,000 times. It goes like this: The offenses are
not sufficiently serious because it is all about sex. This is
directly linked to the claim that the President was simply
trying to avoid personal embarrassment in committing these
crimes. The problem with this argument is that it proves too
much.
It is very common for people to lie under oath and obstruct
justice to do so at least in part to avoid personal
embarrassment. People engage in such conduct in their efforts
to extricate themselves from difficulty and embarrassing
situations. To a large extent, the offenses of President Nixon
could be attributed to his desire to avoid embarrassing
revelations. Did that reduce his culpability? Did that lessen
the seriousness of his misconduct? The answer is obvious. It
did not.
The desire to avoid embarrassment is not a mitigating
factor. Likewise, the nature of the precipitating misconduct of
a sexual affair does not mitigate the seriousness of the
President's crimes. If you accept the argument that it is just
about sex, you will render the law of sexual harassment
virtually meaningless. Any defendant guilty of sexual
harassment would obviously have an incentive to lie about any
sexual misconduct that may have occurred. But no one--no one--
has the license to lie under oath about sex in a sexual
harassment case or a divorce case or any other case.
I suggest to you that an objective review of all the
circumstances of this case--and you need to look at all of the
circumstances, all of the facts in context--will point not to
mitigating factors, but to aggravating factors.
The conduct of the President was calculated and sustained.
His subtle and determined purpose was corrupt. It was corrupt
from start to finish. He knew exactly what he was doing. He
knew that it was in violation of the criminal law. He knew that
people could go to prison for doing such things. He knew that
it was contrary to his oath of office. He knew that it was
incompatible with his constitutional duty as President, and he
most certainly knew that it was a very serious matter. I am
sure he believed he could get away with it, but I am equally
sure that he knew just how serious it would be if the truth
were known and understood.
He knew all these things. In the midst of it all, he showed
not the slightest concern for the honor, the dignity, and the
integrity of his high office. When he called Ms. Lewinsky at
2:30 in the morning, he was up to no good, just as my
colleague, Mr. Graham, noted. He knew exactly what he was
doing. When he called Ms. Currie into his office twice and told
her lies about his relationship with Ms. Lewinsky, he knew
exactly what he was doing.
When he sent Ms. Currie to retrieve the gifts from Ms.
Lewinsky--and that is the only way it happened--he knew exactly
what he was doing. He was tampering with witnesses and
obstructing justice. He was doing everything he could to make
sure that Paula Jones did not get the evidence that a Federal
district judge had determined and ordered that she was entitled
to receive. He was doing everything he could to avoid adverse
legal consequences in the Jones case. That is what he planned
to do, and that is what he did. And to cap it all off, he went
before the Federal grand jury and lied.
Whatever you may think about the President's testimony to
the grand jury, one thing is clear. He didn't lie to the grand
jury to avoid personal embarrassment. The DNA on the dress had
ensured his personal embarrassment. There was no avoiding that.
There was no way to explain away the DNA. The stakes were
higher before the Federal grand jury. This wasn't about
avoiding personal embarrassment. This wasn't about avoiding
liability in a sexual harassment case. This was a Federal
criminal investigation concerning crimes against the system of
justice. This was about lying under oath and obstructing
justice in the Jones case.
What did he do when he testified to the grand jury? He said
anything he thought he needed to say to avoid responsibility
for his prior crimes. The prosecutors went down to the White
House, and William Jefferson Clinton sat there as President of
the United States in the White House and lied to a Federal
grand jury. He sat there in the White House, and he put on his
most sincere face. He swore to God to tell the truth, and then
he lied. He planned to lie, and he executed his plan because he
believed it was in his personal and political interests to lie.
Never mind the oath of office. Never mind the constitutional
duty. Never mind that he solemnly swore to God to tell the
truth.
Ask yourself this simple question: Was this course of
conduct seriously incompatible with the President's duty as
President? If this doesn't fall within the meaning of the
offenses Alexander Hamilton described as ``proceeding from the
abuse or violation of some public trust,'' tell me what would.
I respectfully suggest to you this is exactly the sort of
conduct the framers had in mind when they provided a remedy for
the removal of the Chief Executive who is guilty of misconduct.
I believe they would have rejected the argument that this
deliberate, willful, stubborn, corrupt course of criminal
conduct just isn't serious enough for the constitutional remedy
the framers established, a remedy that they designed to protect
the health and integrity of our institutions.
Those who established our Constitution would have
understood the seriousness of the misconduct of William
Jefferson Clinton. They would have understood that it was the
President who has shown contempt for the Constitution, not the
managers from the House of Representatives. They would have
understood the seriousness of the example of lawlessness he has
set. They would have understood the seriousness of the contempt
for the law the President's conduct has caused. They would have
understood the seriousness of the damage the President has done
to the integrity of his high office. Those wise statesmen who
established our form of government would have understood the
seriousness of the harm President Clinton has done to the cause
of justice and constitutional government. They would have
understood that a President who does such things should not
remain in office with his crimes.
Ladies and gentlemen of the Senate, for the sake of justice
and for the sake of the Constitution, this President should be
convicted and removed.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Bryant.
Mr. Manager BRYANT. Thank you, Mr. Chief Justice.
Members of the Senate, the distinguished colleagues of the
bar representing the President, I commend them for an
outstanding effort they have made throughout these proceedings
and tell them that I just read a poll from a couple days ago,
that something over 80 percent of the American people believe
the President is guilty of something here. But I think that
moots our entire debate. I don't think there is any need to
even talk about the facts any longer because of the poll.
I use that tongue in cheek because that seems to beg the
question that we are also going to talk about today, and that
is whether the President ought to be removed for his conduct.
One of the arguments I have heard put forward since we have
been here is the fact that the polls support this President and
that the stability issue would be in play. That is simply not
the case because we all clearly understand that it is this
body's function to determine not only the facts of this case,
but also apply to it the law, as well as the constitutional
law, as to the removal and conviction process.
I still remain concerned with opposing counsels' continued
reference that the House managers want to win too much. I know
I am not that eloquent, but I did try to make that point the
other day, and I will make it again. If I have to take an oath
to tell the truth, the whole truth, and nothing but the truth,
I will do that and tell you we are not trying to win at all
costs. This has been a process that I think has been healthy
for this country, and regardless of the outcome--it is going to
be in your hands very shortly--regardless of the outcome, this
country will benefit not only in the short term but in the long
term from this debate.
There are many, many other issues at stake here, and I
tried to tell you a few the other day, without this concept
that all we want to do is win, as if it is a simple game. We
have been over the last 4 weeks, as men and women, as ordinary
men and women I might say, involved in an extraordinary
process. It is uniquely thorough. We have tried to blend the
facts of this case with the law of the charges, together with
the politics and the polls and the media, and we have had to
make some tough decisions. We have had to make some difficult
decisions--I know we have on our side--as to what witnesses to
call, how to treat these witnesses in depositions. I know on
this side they have had to make difficult calls, I am sure.
There has been some talk about having the President come down
or not come down. What has in large part made this process
distinct from past impeachments--and I am talking about the one
last century of the President--and the subsequent judicial
impeachments has been just, it seems, the media and the daily
grind on all of us, the critiques. It is almost as if we are
performing, we are in a play, and every day we get a review. We
have been good, bad or indifferent.
What concerns me most about that is as you move to the very
serious issue of deciding whether or not this President should
be convicted based on the facts, and whether this President
should be removed, I am concerned that people are stressing the
trees. If that is what you see on TV and that is what you read
in the paper, you are going to see the trees and not the forest
here and miss the big picture.
That is so important. It is not about the personalities of
these people or the personalities here or the politics involved
or the polls, but it is about the facts. Ladies and gentlemen
of the Senate, there are conclusive facts here that support a
conviction. The President and his attorneys, as I said the
other day, have made a good defense and have tried to paint a
picture of the facts I think that simply does not match with
logic or common sense.
Take, for instance, the affidavit. We continue to see Ms.
Lewinsky testifying on video that she never talked with the
President that night about linking the false story, the
concocted story with the affidavit. Mr. Ruff, I think,
challenged people to say: What do you think the President meant
to do that night when he called her at 2:30 in the morning?
What do you think he intended to do in that call at 2:30 in
the morning? Do you think he called her to tell her he had a
Christmas present for her, or do you think his intent was to
tell her, which he did, that you have been listed on the
witness list and you could be subpoenaed and you might give an
affidavit to avoid testifying. He suggested the affidavit, and
then he said in that same conversation: well, you know, you can
always use that cover story.
Why would he suggest using a cover story that night? Were
they even seeing each other then? It belittles all reasonable
judgment to accept this type of defense of this conduct, that
it was an innocent phone conversation, the President really
meant nothing by it, and the fact that Ms. Lewinsky said: I
didn't connect the two. But look at what she did. She went to
her lawyer and used that concocted story in an affidavit that
she filed in the case.
It was in the draft affidavit. They took that out later for
other reasons. But she did tell her lawyer that, and they
attempted to use it. Again, it is the President's state of mind
that matters and what his intent was on the false affidavit.
Then that same false affidavit was later used in the court,
and the President knew it was false. He knew it was false. It
was used in the deposition. We have seen the deposition
testimony, with the President sitting, listening to his lawyer
talk about that affidavit when he submitted it. He obstructed
justice by not objecting at that point, not instructing his own
lawyer: Don't put that false evidence into this testimony.
People stand up and laugh and say, he was not paying any
attention, and they got this silly affidavit from this guy who
was there and said he was looking at his lawyer but he couldn't
tell what he was thinking. Of course he couldn't tell what he
was thinking. Nobody is a mind reader. But this was a critical
affidavit at that time which was going to cut off critical
testimony in that case, and you can just about guarantee, I
would say 100 percent, that the President was indeed listening
very carefully, knew that his lawyer was submitting a false
affidavit, and did nothing to stop it. That is another count of
obstruction of justice.
Tampering with Betty Currie--two occasions--and they say
nothing happened between the first time and the second time. I
am not so sure legally that matters. It was 2 or 3 days after
it happened the day following his deposition and 2 or 3 days
after that. Initially, remember his defense was: I was simply
trying to recall what happened. And then we brought up the
fact: Why did you go the second time? Did you have a short
memory? Didn't you get it right the first time? And now we hear
the defense today that nothing really changed and it is really
one issue there, one big tampering rather than two attempts to
tamper. It is still obstruction of justice.
Mr. Hutchinson will talk about the job situation later. Mr.
Blumenthal, the same thing; I am sure Mr. Rogan will talk about
him in a minute.
If you will look carefully, you will see that the President
is the only thread that goes from each one of these, from the
very beginning, from the point when he met Monica Lewinsky and
from that point when he looked at that pink pass and said:
That's going to be a problem. You know why that was going to be
a problem. Because that limited her access to this President
and what he was going to do. From that point until they
terminated the relationship, this President is involved in each
one of these issues of obstruction of justice.
It is always him, by himself, testifying falsely, sitting
there letting his lawyers submit a false affidavit, or it is
him and one other person--he and Monica Lewinsky talking about
filing a false affidavit; he and Monica Lewinsky talking about
a concocted story to testify; he and Betty Currie on two
occasions. You remember the testimony was like this. He and
John Podesta, Sidney Blumenthal, the many aides--talking to
them individually, giving them a false story.
As Mr. Hutchinson pointed out so well in his argument the
other day, it is always a private issue in terms of no one else
knows what is going on. Vernon Jordan didn't know what was
happening with the affidavit necessarily. Betty Currie didn't
understand what was happening with the affidavit, or the job
search, to the point that they knew what was going on. Look at
and analyze each one of these and you will see there is a
compartmentalization going on with this President, and he is at
the center of it each time.
What do we do with it? What do you do with it? It is going
to be in your hands very shortly, and I want to address just a
couple of points on the constitutional issue of the conviction
and the removal because White House counsel argued very well
the issue of proportionality. Again, proportionality simply
means that the legacy of this Senate and this Congress will be
that we have destroyed sexual harassment laws. When you argue
that proportionality, think about what it is.
We have heard this issue about, ``Back in my hometown, 80
percent of the people who get divorced lie about this issue.''
Certainly we don't want that to be the legacy of this Congress,
that we legitimize lying in divorce cases; nor would we want to
have the legitimacy of this Congress being that we did not
support the sexual harassment laws, because you know and I know
that this is an important part. Going back and getting
accurate, truthful testimony is absolutely essential in these
types of cases, and if we send a message out on the
proportionality theory that it is just about sex and you can
lie about it, it will be the wrong thing to do.
The laws, like the facts, are a very stubborn thing. If the
law has been broken, if perjury has been committed, if
obstruction of justice has been committed by this President, it
is my belief that the fact that the economy is good should not
prevent this Senate from acting and removing the President. If
the economy was bad, you wouldn't want to be able to impeach
the President because it is bad; and you don't want to not
impeach him simply because the economy is good.
It is a difficult task. We have had a difficult task
bringing this case over to you, and I thank you. You have been
in attendance the 4 weeks. You paid attention. When it was your
turn to ask questions, you asked very good questions. You have
been ready to listen, and I thank you for that.
You have a difficult task ahead of you. I know when I voted
on this I thought, ``If this were a Republican President, what
would I do?'' It is a tough choice. I said, ``But I really
think I would have voted the same way I voted even if it were a
Republican President.'' I know. Like Mr. Chabot, I voted for
Mr. Carter in 1976. I voted for Mr. Reagan in 1980, I might
add, but I voted for Mr. Carter in 1976 after the 1974
incident.
It is tough. What has made it awfully hard is that you all
have also taken an oath to do impartial justice. I simply ask
you, as you consider these facts and do impartial justice, that
you set a standard that, if you believe the President indeed
did commit either perjury or obstruction of justice or both of
those, that you set that standard high for the President, for
the next President, for the next generations; you set that
standard high for our courts that have to deal with perjury and
obstruction every day, with people who are less than the
President but yet who are watching very closely what we do
here. But set that standard high for the President. Don't lower
our expectation in what we expect of the President. If you do
that, if you look high, if you set the standard high, the right
thing will be done.
I have confidence and trust, and I have just been so
pleased with the way we have been received here. I know you
will do the right thing.
I apologize to you, as I will be talking to you probably
for my last time, if I have come across as preaching to you. It
is not my intent to lecture you. You do not need any lectures
from me or for anyone else to preach to you. I hope I have
rebutted some of the proof in the area for which I am in
charge. There is conclusive proof here, particularly in terms
of the obstruction of justice charges, of the hiding of the
evidence, of the filing of a false affidavit.
I did skip over the hiding of the evidence. I am not sure
anything new can be added to what was said in the past. But if
Monica is telling the truth, as her lawyers or as the
President's lawyers seem to tell you, that is a no-brainer,
because she says, ``I know for a fact that Ms. Currie called
me, that she initiated the call.'' As I told you the other day,
from that point forward it seems to me a moot issue because the
initiation of the phone call by Betty Currie began a process to
hide that evidence. The only way Betty Currie would have known
to make that call to begin that process of hiding evidence
would have been a conversation with the President, to have been
instructed that way.
For the President, whose intent was to conceal the
relationship, it would have been totally inconsistent for him
to suggest that she turn the evidence over. It would have been
totally consistent for him to ask Betty Currie to get the
evidence from Ms. Lewinsky and hide the evidence.
As I close, let me just tell you, too--on the heels of Mr.
Canady--that there are law professors who testified in our
hearing who have a contrary view to the view that was expressed
by other law professors that Mr. Ruff referred to, that it is
constitutional to impeach a President for conduct that is not
clearly official, that might be described as personal,
particularly conduct of perjury or obstruction of justice.
Professor Turley says:
In my view, serious crimes in office, such as lying under
oath before a federal grand jury, have always been ``malum in
se'' conduct for a president and sufficient for impeachment.
Professor John McGinnis of Benjamin Cardozo Law School says
that obstruction of justice is clearly within the ambit of high
crimes and misdemeanors.
If there is any question of this private conduct versus
personal conduct, that view is out there. Given the right type
of personal misconduct, it is clearly an impeachable offense.
With that, I call Mr. Manager Hutchinson to follow me.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager
Hutchinson.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
Ladies and gentlemen of the Senate, when I was appointed as
a manager, I hoped to present the case before the Senate with
my colleagues in a manner that was consistent with the dignity
of this great body and also respectful of the constitutional
independence of the Senate. I hope that you agree and believe
that we have done that as we have come over here.
During the months of this trial process, I have grown to
appreciate the institution of the Senate to a greater degree
than ever before, but I think of even more importance to me, I
have grown to respect the individuals that comprise this body
more than ever. Let me say, it has been a privilege to appear
before you.
As we come to the close of this case, let's go to the key
questions that should be on your mind. First of all, has the
obstruction of justice and perjury cases been proven? Have the
allegations been proven? My colleagues have touched upon the
perjury. Let me talk about article II on the obstruction of
justice.
The White House defense team, composed of extraordinarily
distinguished and talented attorneys, has tried to diminish the
significance of the overwhelming facts on obstruction by using
certain phrases such as, ``It's all circumstantial,'' or ``The
managers ignore those stubborn facts,'' or ``They want to win
too badly,'' or ``It's a shell with no shell.'' And today the
latest catch phrase, ``moving targets, empty pots.''
Those are certainly quotable phrases designed to diminish
the factual presentation with dripping sarcasm, but I believe
that they ignore the underlying facts, testimony, and evidence
that has been presented.
Let me just address a couple of arguments that Mr. Ruff has
presented during his presentation.
The first argument that he presented as he described it was
a technical argument, that the article II obstruction of
justice charge in the articles of impeachment on the lying to
the aides was not really in reference to the Federal civil
rights case, and that is a true statement. But if you read
article II, paragraph 7, it refers to this and says:
. . . 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.
The article is appropriately drafted, is well stated, and
gives them total notice as to what that charge is about.
Some of the other arguments have been handled by my
colleagues, but Mr. Ruff also said, Why have the managers
never, never explained, if this is such an urgent matter for
the President, why did he wait until December 17 to tell Ms.
Lewinsky that she was on the list?
I am afraid Mr. Ruff failed to listen to my opening
presentation when I went through that timeframe. In that
timeframe, the witness list came out on December 5, it
continued to accelerate, December 11 was Judge Wright's order.
Then it was December 17 that the call was made at 2 a.m. in the
morning to let Ms. Lewinsky know she was on the list. Why was
it December 17? This is in the President's mind. No one knows
why he picked that particular date, but perhaps it was that the
job search was well underway then. He felt like she could
handle this distressing information and, in fact, on the day
after that call, she already had two interviews lined up on
that same day, December 18, set up by Mr. Jordan. So perhaps it
was an appropriate time to let her know she was on the witness
list.
They raised the question about the Christmas gifts. You
have the testimony of Betty Currie, you have the testimony of
Ms. Lewinsky, and the issue is simply: Do you believe Monica
Lewinsky? If you accept her reluctant testimony, yet forceful
and clear testimony, that the call came from Betty Currie, then
you have no choice but to conclude that the retention of the
gifts, the retrieval of the gifts was initiated by the
President of the United States.
When you go to the job search, and they point to the
testimony, they played the video of Mr. Jordan who said that
there was never a conversation in which both the job and the
false affidavit were discussed together, they cut it off at
that point. You remember I had a ``but'' in there. If you had
heard further beyond that, you would have heard me cross-
examining Mr. Jordan, as I did, and reminding him of his
previous testimony in which he acknowledged that in every
conversation with Ms. Lewinsky, they talked about the job. So
he acknowledged that they talked about the job and the
affidavit all in the same conversation together.
Mr. Ruff makes the point that the managers got close enough
to accuse Mr. Jordan of telling Ms. Lewinsky to destroy the
notes, implying that we are making this up. But is this
evidence that is coming from the managers? It is my
recollection that it is testimony coming from Ms. Monica
Lewinsky. We are not concocting this. It is testimony from
witnesses who have been brought before this body, whose sworn
testimony you have received, whose sworn testimony they
defended and relied upon, but when it comes to this, they say,
``No, it's the managers.''
Then they come to another pillar of obstruction, the one
they avoid at every opportunity, but finally addressed today,
and that is the coaching of Betty Currie. I was interested in
the fact that they finally talked about this, the first
coaching incident and then the second one. Mr. Ruff tried to go
into that it is clear it occurred on January 20 rather than 21.
In fact, it is her testimony that it occurred on one of those
days. But they miss the point.
The legal significance of the second coaching episode is
that it totally goes against the defense of the President--that
it was there, he was doing this to acquire information, to get
facts, to help in media inquiries.
If that is the case, there is absolutely no reason for it
to be done on the second occasion and, clearly, she was known
to be a witness at that time, and that is the legal
significance.
It goes to his intent, his motive, what he was trying to do
to a subordinate employee. The fact of this matter is that this
is not a case that is based upon circumstantial evidence. On
each element of obstruction, there is direct testimony linking
the President to a consistent pattern of conduct designed to
withhold information, conceal evidence and tamper with
witnesses to avoid obedience and directives of a Federal court.
Let's look at the direct proof, not circumstantial
evidence, but direct testimony.
What did Vernon Jordan testify as to the President's
involvement in the job search?
Question to Mr. Jordan:
You're acting in behalf of the President when you're trying
to get Ms. Lewinsky a job and you were in control of the job
search?
His answer:
Yes.
He was acting at the direction of the President and he was
in control.
What did Vernon Jordan testify he told the President when a
job was secured for a key witness and the false affidavit was
signed?
Mr. President, she signed the affidavit, she signed the
affidavit.
Then the next day, the job is secured and the report to
Betty Currie, the report to the President, ``Mission
accomplished.''
Is this circumstantial evidence? This is direct testimony
by a friend and confidante of the President, Vernon Jordan.
Who is the one person who clearly knew all of the
ingredients to make the job search an obstruction of justice?
It was the President who knew he had a dangerous relationship
with Ms. Lewinsky. He knew his friend was securing a job at his
direction, and he knew that a false affidavit was being
procured at his suggestion. He was the one person who knew all
the facts.
Is this circumstantial evidence or direct testimony when
Ms. Lewinsky talked about what the President told her on
December 17? She was a witness, and immediately following the
fact she was a witness, the suggestion that she could use the
cover stories, the suggestion that she could use an affidavit.
Direct testimony--was it direct proof about the President's
tampering with the testimony of Betty Currie? It was Betty
Currie herself who acknowledged this and testified to it. No,
this is not circumstantial evidence, it is direct testimony.
The same with Sidney Blumenthal. Direct testimony after
direct testimony painting a picture, setting up the pillars of
obstruction.
They want you to believe Monica Lewinsky sometimes, but
they don't want you to believe her other times, and you have to
weigh her testimony.
I could go on with the facts, but the truth is that our
case on obstruction of justice has been established. Some of
you might conclude, ``I accept five or six of those pillars of
obstruction, but there is one I have a reservation about.'' If
you look at the article, if there is one element of obstruction
that you accept and believe and you agree upon, then that is
sufficient for conviction and, surely, it is sufficient to
convict the President, if there was even one element of
obstruction.
I remind you that a typical jury instruction on conspiracy
for obstruction would be that it takes only one overt act to
satisfy the requirements for conviction. The Government doesn't
have to prove all the overt acts, just one that was carried
out.
Another question some of you might be thinking about is, Is
this serious enough to warrant conviction and removal? One of
the foundations of our judicial system is that any citizen,
regardless of position or power, has access to the court. Can
you imagine the shock and outrage of this body if a
corporation, in an effort to protect itself from liability,
concealed evidence and provided benefits to those witnesses who
are cooperative? Outrage; injustice. Those are the allegations
against the tobacco companies. Those are the allegations last
night on CBS, ``60 Minutes,'' about a major corporation. There
should be outrage by this body. We would rightfully be outraged
about that. And we should also be outraged if it happened by
the President. It should be no less when it is conducted by the
President.
The next argument is: Yes, the President should be held
accountable, but he can always be prosecuted later. In fact, I
understand a censure resolution is being circulated emphasizing
that the President can be held criminally responsible for his
actions when he leaves office. This is not too subtle a
suggestion that the independent counsel go ahead and file
criminal charges against the President.
I appreciate Judge Starr, but I do not believe that is what
the country has in mind when they say they want to get this
matter over. I do not believe your vote on the articles of
impeachment should be a signal to the independent counsel to
initiate criminal proceedings. It appears to me that is the
implication of this censure resolution being discussed.
I emphasize that it is this body that the Founding Fathers
entrusted with the responsibility to determine whether a
President's conduct has breached the public trust, and your
decision in this body should conclude this matter. It should
not be the initiation of another national drama that will be
carried over the next 3 years.
Finally, there are some who consider the politics of this
matter. We have proven our case. I entered this body thinking
that this was a legal, judicial proceeding and not political. I
have been reminded there are political aspects under the
Constitution to a Senate trial. So I concede the point.
We are all familiar with ``Profiles in Courage'' written by
John F. Kennedy. He reminds us of the courageous act of Senator
Edmund G. Ross in voting for the acquittal of President Andrew
Johnson in his impeachment trial. Senator Ross was a profile in
courage because he knew the case against President Johnson was
not legally sufficient, even though the politically expedient
vote was to vote for conviction. Senator Ross followed the
facts and he followed the law, and he voted his conscience. It
was to his political detriment, but it reflected his political
courage.
Today we have a different circumstance. The question is,
Will the Senators of this body have the political courage to
follow the facts and the law as did Senator Ross, despite
enormous political pressure to ignore the facts and the law and
the Constitution? You will make that decision.
I appear before this body as an advocate. I am not paid for
this special responsibility. I am here because I believe the
Constitution requires me to make this case. The facts prove
overwhelmingly that the President committed obstruction of
justice and perjury. Despite this belief, whatever conclusion
you reach will not be criticized by me. I will respect this
institution regardless of the outcome.
As the late Federal Judge Orin Harris of Arkansas always
said from the bench to the jury when I was trying cases--and I
hated his instruction because I was the prosecutor--but he
would tell the jury, ``Remember, the government never wins or
loses a case. The government always wins when justice is
done.'' This is the Congress and this is the Senate. It is your
responsibility to determine the facts and to let justice roll
down like mighty waters.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, distinguished counsel
for the President, Members of the U.S. Senate, for me the most
poignant part of this entire proceeding was the day, a few
weeks ago, when we were addressed by the distinguished former
Senator from Arkansas, Dale Bumpers. Probably the thing that
touched me most about his presentation is when he talked about
the human element of what this impeachment proceeding has meant
and how difficult that has been.
It touched me because it made me remember that that
difficulty is not limited solely for Democrats in this Chamber.
I am one of the House managers. I am a Republican today. But
that was not always the case. I used to be a Democrat, and
being a House manager in the impeachment of President Clinton
has been especially difficult for me. I would like to tell you
why.
Twenty years ago, in December 1978, I was finishing my last
semester of college and had just applied to law school. I was
waiting for my application to be accepted someplace. And in
December of 1978, I was a delegate in Memphis, TN, to the
Democratic Midterm Convention.
At that time, President Carter was halfway through his term
of office. He was not particularly popular among the party
faithful. There was a great deal of sentiment that a Member of
this body today should challenge him for the nomination. That
decision had not yet been made, but among the delegates to that
convention there was an overwhelming desire to see Senator Ted
Kennedy appear.
The Carter White House froze Senator Kennedy out of the
proceedings. He was not invited to address the convention. His
name appeared nowhere in the program. So the delegates did
something on their own. There were workshops being held during
the day, and a workshop on health care was called. Senator
Kennedy was invited to fly out that day and address that
workshop. He did that in the afternoon, and he left after he
addressed it. I had gone to a workshop that morning where
President Carter personally appeared, and my recollection is
about 200 or 300 people came to that. Senator Kennedy's
workshop had to be transferred to a large auditorium because
about 2,000 people appeared to hear him.
The Senator came, he spoke, and he left. I stayed even
though most people left with him, because I was fascinated by
the young fellow who was moderating the program that day. He
was bright, he was in control, he was articulate. He didn't
look that much older than me. I was stunned that this young man
was not only the attorney general of his State, but he was the
Governor-elect of the State.
Sometime after that workshop I walked up to him and
introduced myself. I told him who I was, and he spent about 15
minutes encouraging me to go to law school, to stay active in
politics. His name was Bill Clinton. I have never forgotten
that day 20 years ago when then-Attorney General Clinton took
the time for a young fellow who had an interest in the law and
politics. I have never forgotten in recent days the
graciousness he has shown to me, to my wife, and to my children
when we have encountered him.
This has been a very difficult proceeding for me and for my
colleagues, the House managers. But our presence here isn't out
of personal animosity toward our President. It is because we
believe that, after reviewing all the evidence, the President
of the United States had committed obstruction of justice and
perjury, he had violated his oath of office; and in so doing he
had sacrificed the principle that no person is above the law,
and friendship and personal affection could not control under
those circumstances.
Up until now, the idea that no person is above the law has
been unquestioned. Yet this standard is not our inheritance
automatically. Each generation of Americans ultimately has to
make that choice for themselves. Once again, it is a time for
choosing. How will we respond? By impeaching the President? The
U.S. House of Representatives made that choice. It went on
record as saying that our body would not tolerate the most
powerful man in the world trampling the constitutional rights
of a lone woman, no matter how obscure or humble she might be.
We refused to ignore Presidential misconduct despite its
minimization by spin doctors, pundits, and, yes, even the
polls. 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.
The House of Representatives jettisoned the spin and the
propaganda. We sought, and we have now presented, the
unvarnished truth. Now it is your unhappy task to make the
final determination, face the truth, and polish the
Constitution, or allow this Presidency, in the words of
Chairman Henry Hyde, to take one more chip out of the marble.
The Constitution solemnly required President Clinton, as a
condition of his becoming President, to swear an oath to
preserve, protect and defend the Constitution, and to take care
that the laws be faithfully executed.
That oath of obligation required the President to defend
our laws that protect women in the workplace, just as it also
required him to protect the legal system from perjury, abuse of
power, and obstruction of justice. Fidelity to the Presidential
oath is not dependent upon any President's personal threshold
of comfort or embarrassment. Neither must it be a slave to the
latest poll.
How important was this oath to our founders? Did they
intend the oath to have primacy over the shifting winds of
political opinion? Or did they bequeath to us an ambiguous
Constitution that was meant to roll with the punches of the
latest polling data and focus groups? The Constitution gives us
that answer in article II, section 1. It says:
Before he enters on the execution of his office, he shall
take . . . [an] oath.
And the oath is then prescribed.
The mere fact that a person is elected President does not
give him the right to become President, no matter how
overwhelming his vote margin. Votes alone do not make a person
President of the United States. There is a requirement that
precedes obtaining the power and authority of obtaining the
Presidency. It is the oath of office. It is swearing to
preserve, protect, and defend the Constitution. It is accepting
the obligation that the laws are to be faithfully executed.
No oath, no Presidency. It is the oath of office, and not
public opinion polls, that gives life and legitimacy to a
Presidency. This is true no matter how popular an elected
President may be, or how broad his margin of victory.
The founders did not intend the oath to be an afterthought
or a technicality. They viewed it as an absolute requirement
before the highest office in the land was entrusted to any
person. The evidence shows the President repeatedly violated
his oath of office. Now the focus shifts to your oath of
office. The President hopes that in this Chamber the polls will
govern. On behalf of the House of Representatives, we entreat
you to require the Constitution reign supreme. For if polls
matter more than the oath to uphold the law, then yet another
chip out of the marble has been struck.
The cry has also been raised that to remove the President
is to create a constitutional crisis by undoing an election.
There is no constitutional crisis when the simple process of
the Constitution comes into play. Listen to the words of Dr.
Larry Arnn of the Claremont Institute:
[E]lections have no higher standing under our Constitution
than the impeachment process. Both stem from provisions of the
Constitution. The people elect a president to do a
constitutional job. They act under the Constitution when they
do it. At the same time they elect a Congress to do a different
constitutional job. The president swears an oath to uphold the
Constitution, both in elections and in the impeachment process.
If the president is guilty of acts justifying impeachment,
then he, not the Congress, will have ``overturned the
election.'' He will have acted in ways that betray the purpose
of his election. He will have acted not as a constitutional
representative, but as a monarch, subversive of, or above, the
law.
If the great powers given the president are abused, then to
impeach him defends not only the results of elections, but that
higher thing which elections are in service, namely, the
preeminence of the Constitution[.]
The evidence clearly shows that the President engaged in a
repeated and lengthy pattern of felonious conduct--conduct for
which ordinary citizens can be and have been jailed and lost
their liberty. This simply cannot be wished or censured away.
With his conduct aggravated by a motivation of personal and
monetary leverage in the Paula Jones lawsuit, the solemnity of
our sacred oath obliges us to do what the President regretfully
has failed to do: defend the rule of law, defend the concept
that no person is above the law.
On the day the House impeached President Clinton, I said
that when they are old enough to appreciate the solemnity of
that action, I wanted my little girls to know that when the
roll was called, their father served with colleagues who
counted it a privilege to risk political fortunes in defense of
the Constitution.
Today, I am more resolute in that opinion. From the time I
was a little boy, it was my dream to one day serve in the
Congress of the United States. My dream was fulfilled 2 years
ago. Today, I am a Republican in a district that is heavily
Democratic. The pundits keep telling me that my stand on this
issue puts my political fortunes in jeopardy. So be it. That
revelation produces from me no flinching. There is a simple
reason why: I know that in life dreams come and dreams go. But
conscience is forever. I can live with the concept of not
serving in Congress. I cannot live with the idea of remaining
in Congress at the expense of doing what I believe to be right.
I was about 12 years old when a distinguished Member of
this body, the late Senator Ralph Yarborough of Texas, gave me
this sage advice about elective office:
Always put principle above politics; put honor above
incumbency.
I now return that sentiment to the body from which it came.
Hold fast to it, Senators, and in doing so, you will be
faithful both to our founders and to our heirs.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Graham.
The managers have 45 minutes remaining.
Mr. Manager GRAHAM. I promise not to take the whole 45
minutes. I have been told that my voice fades, and I will try
not to let that happen here.
As we bring the trial to a conclusion, I think it needs to
be said from our side of the aisle that our staff has been
terrific. You don't know how many hours of sleep have been lost
by the young men and women working to put this case together
under the procedures that the Senate developed. They have done
an absolutely magnificent job. If there is anybody to blame on
our side, blame us, because our staff has done a terrific job.
That just needs to be said.
Now, let's talk about Mr. Rogan's district. True, if there
is anybody on our side of the aisle who has been at risk it has
been Jim. I have made some lifelong friends in this situation,
really on both sides of the aisle. This has been tough, tough,
tough for our country, but sometimes some good comes from tough
situations, and I think some good will come from this before it
is all said and done, ladies and gentlemen of the Senate. I
know it doesn't look to be so, but it will be so later on.
I come from a district where I am the first Republican in
120 years. They told me they hanged the other guy, so I know I
am doing better. I am 4 years into this thing. This is my third
term.
You can take the national polls and turn them upside down
in my district, but I have on occasion said that if the
President would reconcile himself to the law, I would be
willing to consider something less than impeachment. I can
assure you that did not go over well with some people in my
district. But I thought that would be good for the country.
The elections come and go and we can get through just about
anything and everything in this country, but it does take
leadership, and character does still count. Having said that, I
am a sinner like the rest of us, and part of the problem with
this case is we have to confront our own sins, because who are
we to judge others when the things get to be private and
personal? I am not asking you to use that standard. I am
standing before you as a sinner, and I would never want my
President or your President removed because of private sins,
but only when it gets to be constitutionally out of bounds,
only when it gets to be so egregious that you can't look your
children in the eye and explain what happened here in terms of
the law. We can all explain human failings, but we have a real
mixed message going on, and it needs to be straightened out for
them.
If you could bring the Founding Fathers back, as everybody
has suggested, the first debate would be, could we call them as
a witness? There would be some people objecting to that. Live
or dead, it has been hard to get a witness.
[Laughter.]
I think they would say to us: ``What's a poll?'' They would
be instructive, but we can't summon them back. Do you know what
I really think they would tell us? They would tell us that we
started this thing, and it is up to you all to carry it on. And
it is. They would be right. It is not their job to tell us what
to do. It is our job to take the spirit of what they did and
build on it.
If you have kept an open mind, you have fulfilled your job.
If you have listened to the facts and you vote your conscience,
you will have fulfilled your job. I will not trample on your
conscience; I have said that before. I started this process
with great concern and I leave with a lot of contentment
because I believe the facts have withstood the test of every
type of scrutiny and demagoguery that have been thrown at them.
They stand firm. Do you know what they are going to stand?
They're going to stand the test of history. Some people suggest
that history may judge you badly if you vote to convict this
President. I suggest that that will be the least of your
problems.
Our past and this present moment become our Nation's
future. What are we going to leave to the future generations?
What do we do when the next Federal judge is brought before
this body having been impeached by the House for cheating on
his or her taxes? Are we going to self-righteously throw that
Federal judge out after having listened to this massive case of
obstruction of justice and perjury before a grand jury? We may
throw that Federal judge out, but we will have to walk out the
door backward; we will not walk out boldly. What happens when
the next Federal judge is acquitted by a jury of his peers, and
you know the result would be just to remove that judge? You did
the right thing by not being bound by the acquittal in the case
of Judge Hastings. You did the right thing to get to the truth
and act accordingly, because for people who sit in judgment of
others there needs to be no reasonable doubt about who they are
and what they are able to do in that role. The President of the
United States is at the top of the legal pyramid. If there is
reasonable doubt about his ability to faithfully execute the
laws of the land, our future will be better off if that
individual is removed.
Let me tell you what it all comes down to for me. If you
can go back and explain to your children and your constituents
how you can be truthful and misleading at the same time, good
luck. That is the legacy that Bill Clinton has left all of us
if we keep him in office--the idea that ``I was truthful but
misleading.'' That scenario focuses around whether or not one
type of sex occurred versus the other type of sex. He is
wanting you to buy into this definition that was allowed to
exist because the wording wasn't quite right. That is the
essence of it--``I was truthful, but I was misleading.''
Mr. Podesta asked a few more questions than the other
people did and the President denied any type of sexual
relationship to him. Was he truthful there? Was he truthful in
his grand jury testimony? How can you be both? It is just
absolutely impossible.
I want to play two clips for you now.
[Text of videotape presentation:]
Q. Now, You have stated, I think, very honestly, and I
appreciate, that you were lied to by the President. Is it a
fair statement, given your previous testimony concerning your
30-minute conversation, that the President was trying to
portray himself as a victim of a relationship with Monica
Lewinsky?
A. I think that's the import of his whole story.
Before you put the other tape in, every Member of this body
should need to answer this question: Is that a truthful
statement? If you believe that the President of the United
States is a victim of Ms. Lewinsky, we all owe him an apology.
He is not. He is not.
You ask me why I want this President removed? Not only are
they high crimes, not only do they rise to the level of
constitutional out-of-bounds behavior, not only are they worse
than what you remove judges for, they show a tremendous
willingness of a national leader to put himself above anything
decent and good. I hope that still matters in America.
The next clip:
[Text of videotape presentation:]
Q. Would it be fair to say that you were sitting there during this
conversation and that you had previously been told by the President
that he was in essence a victim of Ms. Lewinsky's sexual demands, and
you said nothing to anyone?
MR. McDANIEL: Is the question, ``You said''----
THE WITNESS: I don't----
MR. McDANIEL: Is the question, ``You said nothing to anyone about
what the President told you?''----
MR. GRAHAM: Right.
THE WITNESS: I never told any of my colleagues about what the
President told me.
BY MR. GRAHAM:
Q. And this is after the President recants his story--recounts his
story--to you, where he's visibly upset, feels like he's a victim, that
he associates himself with a character who's being lied about, and you
at no time suggested to your colleagues that there is something going
on here with the President and Ms. Lewinsky you need to know about. Is
that your testimony?
A. I never mentioned my conversation. I regarded that conversation
as a private conversation in confidence, and I didn't mention it to my
colleagues, I didn't mention it to my friends, I didn't mention it to
my family, bedsides my wife.
Q. Did you mention it to any White House lawyers?
A. I mentioned it many months later to Lanny Breuer in preparation
for one of my grand jury appearances, when I knew I would be questioned
about it. And I certainly never mentioned it to any reporter.
Ladies and gentlemen of the Senate, I have asked you
several times to vote your conscience, and I will not step on
it if you disagree with me; but I have always said let us tell
the story about what happened here. I am saying it again.
Ladies and gentlemen, we need to get to the truth, nothing but
the truth, the whole truth, and let the chips fall where they
may.
Let me say this about being truthful but misleading. Can
you sit back as the President, after you told a lie to a key
aide, where you portrayed yourself as a victim, and watch the
press stories role out along the lines that ``she wears her
dresses too tight''; ``she comes from a broken home''; ``she's
a stalker''; ``she's sex obsessed''; can you sit back and watch
all that happen and still be truthful but misleading?
We have laws against that in this country. We have laws in
this country that even high Government officials cannot tell a
lie to somebody knowing that lie will be repeated to a grand
jury. That is exactly what happened here. He portrayed himself
as a victim, which is not a misleading statement; it is a lie
because if you knew the truth, you wouldn't consider him a
victim. And that lie went to the Federal grand jury. And those
citizens were trying very hard to get it right, and he was
trying very hard to mislead them. At every turn when they tried
to get to the truth, he ran the other way, and he took the aura
of the White House with him.
If you believe he is a victim, then you ought to acquit
him. If you believe he has lied, then he ought not to be our
President.
There are two things in this case that are crimes, two
aspects of it--before the Paula Jones deposition and after the
Paula Jones deposition. I am going to leave this with you for
the very last time. The affidavit was an attempt to have a
cover story where both of them could lie and go on about their
lives. The job search was to take somebody who had been
friendly and get them a job so they could go on about their
lives someplace else, and get this matter behind them and
conceal from a court the truth. Those things are crimes.
These gifts being under the bed of Betty Currie, the
President's secretary, is no accident. They didn't walk over
there by themselves. They got conveyed by a secretary after she
picked them up from his consensual lover. People have figured
that part out. It is no accident that happened. That is a
crime--when you are subpoenaed to give those gifts.
But it is still about getting her a job and having a cover
story so she could go on with her life. But when the article
came out on January 21, the whole flavor of this case changed.
I don't know how you are going to explain it to yourself or
others, but I want to lay out to you what I think happened
based on the evidence.
That January 21 when the story broke that she may have been
telling what went on, and the President was faced with the idea
that the knowledge of their relationship was out in the public
forum, what did he do then? There were no more nice jobs using
a good friend. There was no more ``Let's see if we can hide the
gifts and play hide the ball.'' Do you know what happened then?
He turned on her. Not my favorite part of the case--it is the
most disgusting part of the case. It is part of the case that
history will judge. The crimes change. They become more
ominous, because the character traits became more ominous. The
young lady who was the stalker, who was sex-obsessed, who wore
her skirts too tight, that young lady was being talked about
openly in the public. That young lady was being lied about to
the Federal grand jury. And the truth is that young lady fell
in love with him. And probably to this day a 24- or 25-year-old
young girl doesn't want to believe what was going to come her
way. But you all are adults. You all are leaders of this
Nation. For you to look at these facts and conclude anything
else would be an injustice, because without that threat, ladies
and gentlemen, the stories were going to grow in number, and we
would have no admissions of ``misleading'' and ``truthful.''
The White House is the bully pulpit. But it should never be
occupied by a bully. The White House will always be occupied by
sinners, including our Founding Fathers, and future occupants.
What we do today will put a burden on the White House and
the burden on our future, one way or the other. Is it too much
of a burden to say to future Presidents, Don't fabricate
stories in front of a grand jury, don't parse words, don't
mislead, don't lie when you are begged not to? Is it too much
to say to a President, If you are ever sued, play it straight;
don't hide the gifts under the bed, don't give people false
testimony, don't try to trash people who are witnesses against
you? If that is too much of a burden to put on the White House,
this Nation is in hopeless decline. It is not too much of a
burden, ladies and gentlemen. It is only common decency being
applied to the occupant of the White House.
To acquit under these facts will place the burden on the
constitutional process of impeachment and how we deal with
others, Federal judges and other high public officials. That, I
suggest to you, will be almost irreconcilable.
I want my country to go boldly into the next century. I
don't want us to limp into the next century. I don't want us to
crawl into the next century regardless of rule of law. No
matter what you do, we will make it. But the difference between
how you vote here, I think, determines whether we go boldly
with the rule of law intact, or whether we have to explain it
for generations to come.
I leave with you an example that I think says much. General
MacArthur was removed by President Truman, a very popular
fellow at the time. The reaction to the MacArthur dismissal was
even more violent than Truman had expected. And for an entire
year the majority of public opinion ranked itself ferociously
against him. He said characteristically, as he felt that
hostile poll, ``I wonder where Moses would have gone if they
had taken a poll in Egypt. And what would Jesus Christ have
preached if they had taken a poll in the land of Israel? It
isn't polls that count. It is right and wrong and leadership of
men with fortitude, honesty, and the belief in the right that
make epics in the history of the world.''
Ladies and gentlemen of the Senate, thank you for
listening. If you have any doubts about whether this President
has committed high crimes, we need to make sure the Senate
itself has told the truth. Don't leave any doubts lingering,
because the evidence is overwhelming that these offenses
occurred. The crime of perjury and obstruction of justice have
traditionally been high crimes under our Constitution. For
God's sake, let it remain so. And let it be said that no
President can take the Presidency and the bully pulpit of the
Presidency and hurt average citizens from it.
Thank you very much. I yield now to our chairman.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Hyde.
Mr. Manager HYDE. Mr. Chief Justice, learned counsel, and
the Senate, we are blessedly coming to the end of this
melancholy procedure. But before we gather up our papers and
return to the obscurity from whence we came--
[Laughter.]
--permit, please, a few final remarks.
First of all, I thank the Chief Justice not only for his
patience and his perseverance but for the aura of dignity that
he has lent to these proceedings. It has been a great thrill
for me to be here in his company, as well as in the company of
you, distinguished Senators.
Second, I compliment the President's counsel. They have
conducted themselves in the most professional way. They have
made the most of a poor case, in my opinion. There is an old
Italian saying--and it has nothing to do with the lawyers, but
to your case--that ``you may dress the shepherd in the silk, he
will still smell of the goat.''
[Laughter.]
But all of you are great lawyers. It has been an adventure
being with you.
You know, the legal profession, like politics, is ridiculed
pretty much. Every lawyer feels that and understands the
importance of the rule of law, to establish justice, to
maintain the rights of mankind, to defend the helpless and the
oppressed, to protect innocents, to punish the guilty. These
are duties which challenge the best powers of man's intellect
and the noblest qualities of the human heart. We are here to
defend the bulwark of our liberty, the rule of law.
As to the House managers, I want to tell you and our
extraordinary staff how proud I am of your service. For myself,
I cannot find the words to adequately express how I feel. I
must use the inaudible language of the heart. I have gone
through it all by your side--the media condemnation, the
patronizing editorials, the hate mail, the insults hurled in
public, the attempts at intimidation, the death threats, and
even the disapproval of our colleagues, which cuts the worst.
You know, all a Congressman ever gets to take with him when
he leaves this building is the esteem of his colleagues and his
constituents--and we have risked even that for a principle, for
our duty, as we have seen it.
In speaking to my managers, of whom I am interminably
proud, I can borrow the words of Shakespeare, ``Henry V,'' as
he addressed his little army of longbowmen before the Battle of
Agincourt. And he said:
We few, we happy few, we band of brothers
For he that sheds his blood with me
Shall be my brother
And gentlemen in England, now abed
shall think themselves accursed they
were not here
And hold their manhood cheap
while any speaks
That fought with us upon St. Chrispen's day
As for the juror judges, you distinguished Senators, it is
always a victory for democracy when its elected representatives
do their duty, no matter how difficult and unpleasant, and we
thank you for it. Please don't misconstrue our fervor for our
cause to any lack of respect or appreciation for your high
office. But our most formidable opponent has not been opposing
counsel nor any political party; it has been the cynicism, the
widespread conviction that all politics and all politicians
are, by definition, corrupt and venal.
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.
One of the several questions that needs answering is
whether your vote on conviction lessens or enlarges that
cynicism. Nothing begets cynicism like the double standard--one
rule for the popular and the powerful and another for the rest
of us.
One of the most interesting things in this trial was the
testimony of the President's good friend, the former Senator
from Arkansas. He did his persuasive best to maintain the
confusion that this is all about sex. Of course, it is useful
for the defense to misdirect our focus to what everyone
concedes are private acts and none of our business. But if you
care to read the articles of impeachment, you won't find any
complaints about private sexual misconduct. You will find
charges of perjury and obstruction of justice which are public
acts and Federal crimes, especially when committed by the one
person duty bound to faithfully execute the laws. Infidelity is
private and noncriminal. Perjury and obstruction are public and
criminal. The deliberate focus on what is not at issue here is
a defense lawyer's tactic and nothing more. This entire saga
has been a theater of distraction and misdirection, time-
honored defense tactics when the law and the facts get in the
way.
One phrase you have not heard the defense pronounce is the
``sanctity of the oath.'' But this case deeply involves the
efficacy, the meaning, and the enforceability of the oath. The
President's defenders stay away from the word ``lie,''
preferring ``mislead'' or ``deceive.'' But they shrink from the
phrase ``sanctity of the oath,'' fearing it as one might a
rattlesnake.
There is a visibility factor in the President's public
acts, and those which betray a trust or reveal contempt for the
law are hard to sweep under the rug, or under the bed, for that
matter. They reverberate, they ricochet all over the land, and
provide the worst possible example for our young people. As
that third-grader from Chicago wrote to me, ``If you can't
believe the President, who can you believe?''
Speaking of young people, in 1946 a British playwright,
Terrance Rattigan, wrote a play based on a true experience that
happened in England in 1910. The play was called ``The Winslow
Boy.'' The story--as I say, a true story--involved a young 13-
year-old lad who was kicked out of the Royal Naval College for
having forged somebody else's signature on a postal money
order. Of course, he claimed he was innocent, but he was
summarily dismissed and his family, of very modest means, could
not afford legal counsel, and it was a very desperate
situation. Sir Edward Carson, the best lawyer of his time--
barrister, I suppose--got interested in the case and took it on
pro bono and lost all the way through the courts.
Finally, he had no other place to go, but he dug up an
ancient remedy in England called ``petition of right.'' You ask
the King for relief. And so Carson wrote out five pages of
reasons why a petition of right should be granted and, lo and
behold, it got past the Attorney General, it got to the King.
The King read it, agreed with it, and wrote across the front of
the petition, ``Let right be done. Edward VII.''
I have always been moved by that phrase. I saw the movie; I
saw the play; and I have the book. And I am still moved by that
phrase, ``Let right be done.'' I hope when you finally vote
that will move you, too.
There are some interesting parallels to our cause here
today. This Senate Chamber is our version of the House of
Lords, and while we managers cannot claim to represent that 13-
year-old Winslow boy, we speak for a lot of young people who
look to us to set an example.
Ms. Seligman last Saturday said we want to win too badly.
This surprised me because none of the managers has committed
perjury nor obstructed justice and claimed false privileges,
none has hidden evidence under anyone's bed nor encouraged
false testimony before the grand jury. That is what you do if
you want to win too badly.
I believe it was Saul Bellow who once said, ``A great deal
of intelligence can be invested in ignorance when the need for
illusion is great.'' And those words characterize the defense
in this case. ``The need for illusion'' is very great.
I doubt there are many people on the planet who doubt the
President has repeatedly lied under oath and has obstructed
justice. The defense spent a lot of time picking lint. There is
a saying in the courts, I believe, that equity will not stoop
to pick up pins. But that was their case. So the real issue
doesn't concern the facts, the stubborn facts, as the defense
is fond of saying, but what to do about them.
I am still dumbfounded about the drafts of the censures
that are circulating. We aren't half as tough on the President
in our impeachment articles as this draft is that was printed
in the New York Times:
An inappropriate relationship with a subordinate employee
in the White House which was shameless, reckless and
indefensible.
I have a problem with that. It seems they are talking about
private acts of consensual sexual misconduct which are really
none of our business. But that is the leadoff.
Then they say:
The President deliberately misled and deceived the American
people and officials in all branches of the U.S. Government.
This is not a Republican document. This is coming from
here.
The President gave false or misleading testimony and
impeded discovery of evidence in judicial proceedings.
Isn't that another way of saying obstruction of justice and
perjury?
The President's conduct demeans the Office of the President
as well as the President himself and creates disrespect for the
laws of the land. Future generations of Americans must know
that such behavior is not only unacceptable but bears grave
consequences including loss of integrity, trust and respect.
But not loss of job.
Whereas, William Jefferson Clinton's conduct has brought
shame and dishonor to himself and to the Office of the
President; whereas, he has violated the trust of the American
people--
See Hamilton's Federalist No. 65--
he should be condemned in the strongest terms.
Well, the next to the strongest terms. The strongest terms
would remove him from office.
Well, do you really cleanse the office as provided in the
Constitution or do you use the Airwick of a censure resolution?
Because any censure resolution, to be meaningful, has to punish
the President, if only his reputation. And how do you deal with
the laws of bill of attainder? How do you deal with the
separation of powers? What kind of a precedent are you setting?
We all claim to revere the Constitution, but a censure is
something that is a device, a way of avoiding the harsh
constitutional option, and it is the only one we have up or
down on impeachment. That, of course, is your judgment, and I
am offering my views, for what they are worth.
Once in a while I do worry about the future. I wonder if,
after this culture war is over, this one we are engaged in, an
America will survive that is worth fighting for to defend.
People won't risk their lives for the U.N., or over the Dow
Jones averages. But I wonder, in future generations, whether
there will be enough vitality left in duty, honor and country
to excite our children and grandchildren to defend America.
There is no denying the fact that what you decide will have
a profound effect on our culture, as well as on our politics. A
failure to convict will make a statement that lying under oath,
while unpleasant and to be avoided, is not all that serious.
Perhaps we can explain this to those currently in prison for
perjury. We have reduced lying under oath to a breach of
etiquette, but only if you are the President.
Wherever and whenever you avert your eyes from a wrong,
from an injustice, you become a part of the problem.
On the subject of civil rights, it is my belief this issue
doesn't belong to anyone; it belongs to everyone. It certainly
belongs to those who have suffered invidious discrimination,
and one would have to be catatonic not to know that the
struggle to keep alive equal protection of the law never ends.
The mortal enemy of equal justice is the double standard, and
if we permit a double standard, even for the President, we do
no favor to the cause of human rights. It has been said that
America has nothing to fear from this President on the subject
of civil rights. I doubt Paula Jones would subscribe to that
endorsement.
If you agree that perjury and obstruction of justice have
been committed, and yet you vote down the conviction, you are
extending and expanding the boundaries of permissible
Presidential conduct. You are saying a perjurer and obstructer
of justice can be President, in the face of no less than three
precedents for conviction of Federal judges for perjury. You
shred those precedents and you raise the most serious questions
of whether the President is in fact subject to the law or
whether we are beginning a restoration of the divine right of
kings. The issues we are concerned with have consequences far
into the future because the real damage is not to the
individuals involved, but to the American system of justice and
especially the principle that no one is above the law.
Edward Gibbon wrote his magisterial ``Decline and Fall of
the Roman Empire'' in the late 18th century--in fact the first
volume was issued in 1776. In his work, he discusses an emperor
named Septimius Severus, who died in 211 A.D. after ruling 18
years. And here is what Gibbon wrote about the emperor:
Severus promised, only to betray; he flattered only to
ruin; and however he might occasionally bind himself by oaths
and treaties, his conscience, obsequious to his interest,
always released him from the inconvenient obligation.
I guess those who believe history repeats itself are really
onto something. Horace Mann said:
You should be ashamed to die unless you have achieved some
victory for humanity.
To the House managers, I say your devotion to duty and the
Constitution has set an example that is a victory for humanity.
Charles de Gaulle once said that France would not be true to
herself unless she was engaged in some great enterprise. That
is true of us all. Do we spend our short lives as consumers,
space occupiers, clock watchers, as spectators, or in the
service of some great enterprise?
I believe, being a Senator, being a Congressman, and
struggling with all our might for equal justice for all, is a
great enterprise. It is our great enterprise. And to my House
managers, your great enterprise was not to speak truth to
power, but to shout it. Now let us all take our place in
history on the side of honor and, oh, yes: Let right be done.
I yield back my time.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Order Of Procedure
Mr. LOTT. Mr. Chief Justice, I believe that concludes the
closing arguments. Therefore, the Senate will reconvene as the
Court of Impeachment at 1 p.m. on Tuesday to resume
consideration of the articles of impeachment.
notice of intent to suspend the rules of the Senate by Senator daschle
In accordance to Rule V of the Standing Rules of the
Senate, I (for myself, Mr. Lott, Mrs. Hutchison, Mr. Harkin,
Mr. Wellstone, Ms. Collins, Mr. Specter, and Mr. Leahy) hereby
give notice in writing that it is my intention to move to
suspend the following portions of the Rules of Procedure and
Practice in the Senate When Sitting on Impeachment Trials in
regard to any deliberations by Senators on the articles of
impeachment during the trial of President William Jefferson
Clinton:
(1) The phrase ``without debate'' in Rule VII;
(2) the following portion of Rule XX: ``, unless the Senate
shall direct the doors to be closed while deliberating upon its
decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motion shall
be voted on without debate by the yeas and nays, which shall be
entered on the record''; and
(3) In Rule XXIV, the phrases ``without debate'', ``except
when the doors shall be closed for deliberation, and in that
case'' and ``, to be had without debate''.
------
adjournment until 1 p.m. tomorrow
Mr. LOTT. I ask unanimous consent that the Court of
Impeachment stand in adjournment until 1 p.m. tomorrow, and I
further ask consent that the Senate now resume legislative
session. I remind all Senators to stand as the Chief Justice
departs the Chamber.
There being no objection, at 6:34 p.m. the Senate, sitting
as a Court of Impeachment, adjourned until Tuesday, February 9,
1999, at 1 p.m.
------
NOTICE OF INTENT TO SUSPEND THE RULES
Mr. DASCHLE. In accordance with rule V, on behalf of myself
and Senator Feinstein, I hereby give notice in writing that it
is my intention to move to suspend the following:
Rule VII, paragraph 2 the phrase ``upon the calendar''; and
Rule VIII, paragraph 2 the phrase ``during the first two
hours of a new legislative day.''
This is in order to permit a motion to proceed to a censure
resolution, to be introduced on the day of the motion to
proceed, notwithstanding the fact that it is not on the
calendar of business.
NOTICE OF INTENT TO SUSPEND THE RULES
Mrs. FEINSTEIN. In accordance with rule V, on behalf of myself
and Senator Daschle, I hereby give notice in writing that it is
my intention to move to suspend the following:
Rule VII, paragraph 2 the phrase ``upon the calendar''; and
Rule VIII, paragraph 2 the phrase ``during the first two
hours of a new legislative day.''
That is in order to permit a motion to proceed to a censure
resolution, to be introduced on the day of the motion to
proceed, notwithstanding the fact that it is not on the
calendar of business.
Tuesday, February 9, 1999
[From the Congressional Record]
The Senate met at 1:05 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Almighty God, we renew our trust in You when we realize how
much You have entrusted to us. We are stunned by the psalmist's
reminder that You have crowned us with glory and honor and
given us responsibility over the work of Your hands. We renew
our dependence on You as we assume this breathtaking call to
courageous leadership.
Help the Senators to claim Your promised glory and honor.
Imbue them with Your own attributes and strengthen their desire
to do what is right and just. As they humbly cast before You
any crowns of position or pride, crown them with Your presence
and power. In Your holy Name. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The Chair recognizes the majority leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Order of Procedure
Mr. LOTT. This afternoon, the Senate will begin final
deliberations on the articles of impeachment. However, pursuant
to S. Res. 30, a Senator may at this time offer a motion to
suspend the rules to allow the final deliberations to remain
open. That motion is not amendable and no motions to that
motion may be offered. Therefore, I expect at least one vote to
occur shortly. Following that vote, if the motion is defeated,
I will move to close deliberations. If that motion should be
adopted, the Senate will begin full deliberations, with each
Senator allocated 15 minutes to speak. And I note that that
will be true whether it is in open or closed session, although
Senator Daschle and I may have some further comments to make
about that later on.
I note that if each Senator uses his or her entire debate
time, the proceedings will take 25 hours, not including breaks
and recesses. Therefore, I remind all Senators that Lincoln
gave his Gettysburg Address in less than 3 minutes and
Kennedy's inaugural address was slightly over 7 minutes. But
certainly every Senator will have his or her opportunity to
speak for up to 15 minutes, if that is their desire, and, of
course, we would also need to communicate with the Chief
Justice about the time of the proceedings.
I expect that we will try to go until about 6 or 6:30 this
afternoon. I want to confer with Senator Daschle, but I think
maybe we will try to begin earlier tomorrow and go throughout
the day into the early evening. Again, we do have to take into
consideration the fact that about 7 or 8 hours will be the
absolute maximum we will probably be able to do in a single
day. We will talk further about that and make an announcement
before we conclude today.
I now yield the floor to the Senator from Pennsylvania,
Senator Specter, for the purpose of propounding a unanimous
consent request.
The CHIEF JUSTICE. The Chair recognizes Senator Specter.
Unanimous Consent Request
Mr. SPECTER. Mr. Chief Justice, on behalf of the leader,
and in my capacity as a copresider for the Senate at the
deposition of Mr. Sidney Blumenthal, I ask unanimous consent
that the parties be allowed to take additional discovery,
including testimony on oral deposition of Mr. Christopher
Hitchens, Ms. Carol Blue, Mr. R. Scott Armstrong and Mr. Sidney
Blumenthal with regard to possible fraud on the Senate by
alleged perjury in the deposition testimony of Mr. Sidney
Blumenthal with respect to allegations that he, Mr. Sidney
Blumenthal, was involved with the dissemination beyond the
White House of information detrimental to the credibility of
Ms. Monica Lewinsky, and that pursuant to the authority of
title II of Senate Resolution 30, the Chief Justice of the
United States, through the Secretary of the Senate, shall issue
subpoenas for the taking of such testimony at a time and place
to be determined by the majority leader after consultation with
the Democratic leader, and, further, that these depositions be
conducted pursuant to the procedures set forth in title II of
Senate Resolution 30, except that the last four sentences of
section 204 shall not apply to these depositions, provided,
further, however, that the final sentence of section 204 shall
apply to the deposition of Mr. Sidney Blumenthal.
The CHIEF JUSTICE. Is there objection?
Mr. DASCHLE. Mr. Chief Justice, I object.
The CHIEF JUSTICE. Objection is heard.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority
leader.
Motion To Suspend The Rules
Mr. LOTT. On behalf of myself and Senator Daschle, I move
to suspend the rules on behalf of Senators Hutchison, Harkin,
and others in order to conduct open deliberations.
Mr. WELLSTONE addressed the Chair.
The CHIEF JUSTICE. The Senator from Minnesota.
Mr. WELLSTONE. I ask unanimous consent that there be a 40-
minute debate, equally divided, between the leaders or their
designees in open session on the motion to suspend the rules.
The CHIEF JUSTICE. Is there objection?
Mr. GREGG. I object.
The CHIEF JUSTICE. Objection is heard.
The question is on the motion to suspend the rules. The
yeas and nays are automatic. The clerk will call the roll.
The legislative clerk called the roll.
The yeas and nays resulted--yeas 59, nays 41, as follows:
[Rollcall Vote No. 15]
[Subject: Lott motion to suspend the rules]
YEAS--59
Abraham
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Collins
Conrad
Daschle
DeWine
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Gorton
Graham
Hagel
Harkin
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
McCain
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Smith (OR)
Snowe
Specter
Stevens
Torricelli
Wellstone
Wyden
NAYS--41
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Coverdell
Craig
Crapo
Domenici
Enzi
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Hatch
Helms
Hutchinson
Inhofe
Lott
Mack
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Thomas
Thompson
Thurmond
Voinovich
Warner
The CHIEF JUSTICE. On this vote the yeas are 59, the nays
are 41. Two-thirds of those Senators voting--a quorum being
present--not having voted in the affirmative, the motion is not
agreed to.
Mr. LOTT. Mr. Chief Justice, I suggest the absence of a
quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the order for the quorum call be rescinded.
The CHIEF JUSTICE. In the absence of objection, so ordered.
Mr. LOTT. Mr. Chief Justice, I want to make this reminder:
Only those people who are properly authorized to be on the
floor of the Senate should be here. The Sergeant at Arms will
act accordingly.
Now, Mr. Chief Justice, there is a desire by a number of
Senators that it be possible for their statements, even in
closed session, to be made a part of the Record. Senator
Daschle and I have talked a great deal about this. We think
this is an appropriate way to proceed.
Motion Relating to Record of Proceedings Held in Closed Session
Mr. LOTT. Therefore, I send this motion to the desk: That
the record of the proceedings held in closed session for any
Senator to insert their final deliberations on the articles of
impeachment shall be published in the Congressional Record at
the conclusion of the trial.
The CHIEF JUSTICE. The clerk will read the motion.
The legislative clerk read as follows:
The Senator from Mississippi [Mr. Lott] for himself and Mr.
Daschle, moves as follows:
That the record of the proceedings held in closed session
for any Senator to insert their final deliberations on the
Articles of Impeachment shall be published in the Congressional
Record at the conclusion of the trial.
Mr. LOTT. Mr. Chief Justice, so everybody can understand
this, may I be recognized?
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. It is the desire of one and all to have the
opportunity for this record to be made. After the trial is
concluded, Senators can have their statements in the closed
session put into the Congressional Record--in the record of the
trial. There may be Senators that choose, for whatever reason,
not to do it in that way at that time. Senator Daschle and I
have talked a great deal about this. We think this is the fair
way to make that record. We urge that it be adopted.
Mrs. FEINSTEIN. Mr. Chief Justice, point of clarification.
The CHIEF JUSTICE. The Senator from California, Mrs.
Feinstein, is recognized.
Mrs. FEINSTEIN. Mr. Leader, can I ask a point of
clarification? Does this mean that repartee between Members
will not be recorded, but just the statement as the Member
submits it?
Mr. LOTT. Mr. Chief Justice, if I could respond to that, I
think that would be up to the Senators. That has been one of my
points. I hope we won't just have speeches and that, in fact,
we will have deliberations. As we have found ourselves in
previous closed sessions, almost uncontrollably we wound up
discussing and talking with each other. I hope that if we come
to that, the Senators involved in the exchange would make that
a part of the record and part of history. I believe they would
have that right under this proposal.
Mr. DASCHLE. If the leader will yield for the purpose of
clarification, I may have misunderstood what the majority
leader described here. But our intent would be to allow
statements to be inserted into the Congressional Record, not
into the hearing record.
Mr. LOTT. That is correct. I misstated that.
Mr. DASCHLE. So that people understand, this would actually
allow you the opportunity to insert your statement into the
Congressional Record, succeeding the votes on the two articles.
Mr. WELLSTONE addressed the Chair.
The CHIEF JUSTICE. The Senator from Minnesota, Mr.
Wellstone, is recognized.
Mr. WELLSTONE. Mr. Chief Justice, I have a question for the
majority leader. I might not have heard this the right way.
This would allow any Senator, who so wishes, to have his or her
statements made in all of our--not just the final
deliberations, but this would cover all of our sessions that
have been in closed session; is that correct or not?
Mr. LOTT. Mr. Chief Justice, I believe this would be
applicable only to the final deliberations.
Mr. WELLSTONE. Mr. Chief Justice, if I could ask the
majority leader whether he might be willing--it seems to me
that if this is the principle, I wonder if he would amend his
request to any Senator who wants to--and it is up to the
Senator--this is far different than having our final
deliberations a matter of public record, which is what I think
we should do, but what you are saying is any Senator who so
wishes can do so. Might that not apply to all of the closed
sessions we had? It seems to me that the same principle
applies.
Mr. LOTT. That is not what is in this proposal. I would
like to think about that and discuss it with the Senator from
Minnesota and others. I remember making a passionate speech,
but I had no prepared notes; and so I could not put it into the
Record if I wanted to when we were in one of those closed
sessions.
I honestly had not considered that. This was aimed at the
closing deliberations. I think we need to give some thought to
reaching back now to the other closed sessions before we move
in that direction.
Mr. CRAIG addressed the Chair.
The CHIEF JUSTICE. The Senator from Idaho, Mr. Craig, is
recognized.
Mr. CRAIG. Mr. Chief Justice, will the majority leader
yield for a question?
Mr. LOTT. I would be glad to yield, Mr. Chief Justice.
Mr. CRAIG. Is my understanding correct that your motion
would keep this session of deliberations closed, except for
those Senators who would choose to have their statements become
a part of the Congressional Record, and that it would be the
choice of the individual Senators, and that the deliberations
of the closed session would remain closed unless otherwise
specified by each individual Senator, specific to their
statements; is that a fair understanding?
Mr. LOTT. Mr. Chief Justice, that is an accurate
understanding, and that is with the presumption that we will go
into closed session. And such a motion will be made in short
order.
I want to also clarify that this is made on behalf of
Senator Daschle and myself. We have consulted a great deal on
this and we have both been thinking about doing something like
this, but we never put it on paper until a moment ago.
Mr. CRAIG. I thank the leader.
Mr. COVERDELL addressed the Chair.
The CHIEF JUSTICE. The Senator from Georgia, Mr. Coverdell,
is recognized.
Mr. COVERDELL. I want to make an inquiry to the leader in
response to the question by the Senator from California, who
alluded to actual deliberations and statements among Senators.
I assume that in order to go into the Congressional Record, it
would require all of the participants of the colloquy----
The CHIEF JUSTICE. The Parliamentarian tells me that this
is all out of order.
Mr. LOTT. Mr. Chief Justice, if I may, in a moment I will
make a motion to close the doors for deliberations. However, we
have to dispose of this.
The CHIEF JUSTICE. The question is on the motion----
Mr. LEAHY. Mr. Chief Justice, I ask unanimous consent to
ask the majority leader one follow-up question on his motion.
The CHIEF JUSTICE. Without objection.
Mr. LEAHY. Mr. Chief Justice, I want to make sure I fully
understand the distinguished majority leader. Our vote on what
we do on the record does not include a vote on closing the
session itself, it simply assumes that vote carries?
Mr. LOTT. That is correct. That is my understanding.
Mr. HARKIN addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Iowa, Mr. Harkin.
Mr. HARKIN. Mr. Chief Justice, again, I ask unanimous
consent that I be able to ask the majority leader a question
regarding the ethics.
The CHIEF JUSTICE. Without objection.
Mr. HARKIN. I have a question regarding the ethics rules.
Under this proposed motion, could a Senator give his or her
statement in public and then give the same statement in closed
session and still not violate the ethics rules? I am concerned
about how we might want to follow that.
I yield to the head of the Ethics Committee for
clarification.
Mr. SMITH of New Hampshire. If the motion carries, as has
been outlined by the majority leader, you have every right to
release your statement. That would not violate rule 29.5.
Mr. HARKIN. I could do whatever----
Mr. SMITH of New Hampshire. Your statement, yours, not
anybody else's.
Mrs. MURRAY addressed the Chair.
The CHIEF JUSTICE. The Senator from Washington, Mrs.
Murray, is recognized.
Mrs. MURRAY. Mr. Chief Justice, I ask unanimous consent to
ask the majority leader a point of clarification.
The CHIEF JUSTICE. Without objection.
Mrs. MURRAY. If we reference another Senator's remarks in
our statements, would we have to get that other Senator's
consent in order to submit our statement, then, for the Record?
Mr. LOTT. I am not chairman of the Ethics Committee, but I
am assured by those on the committee that you would have to do
so. Are we ready to move forward?
Mr. KERRY addressed the Chair.
The CHIEF JUSTICE. The Senator from Massachusetts, Mr.
Kerry, is recognized,
Mr. KERRY. Mr. Chief Justice, I ask unanimous consent that
I be permitted to ask a point of clarification.
The CHIEF JUSTICE. Without objection.
Mr. KERRY. I ask the majority leader this: He mentioned
that he hoped during the deliberations that there would be more
than just speeches, that there would be a process of colloquy.
I was wondering if he was contemplating how that would work
because I think under the rules we are limited to one
intervention of a specific time period. Does the majority
leader contemplate approaching that difficulty?
Mr. LOTT. Mr. Chief Justice, I have discussed this with the
Democratic leader, and there is no ironclad rule. You know, in
our other closed session when we sort of got on a roll, we
yielded additional time to each other, and then at some point
we started to have a round robin. The Chief Justice probably
thought it was all completely out of order, but he allowed us
to go forward. I think we will have to deal with that when we
get there. I think, as has been the case all the way along, we
will be understanding of each other and try to make these
deliberations genuine deliberations. I think it would benefit
us all in the final result.
Before I make a motion to close the doors, I yield to the
Senator from Texas, Mrs. Hutchison, for a parliamentary
inquiry.
The CHIEF JUSTICE. We have a motion, do we not?
Mr. LOTT. I beg your pardon.
The CHIEF JUSTICE. However amorphous it may be.
[Laughter.]
The question is on agreeing to the motion.
The motion was agreed to.
Mr. LOTT. Thank you, Mr. Chief Justice, for that amorphous
ruling.
[Laughter.]
I yield to the Senator from Texas for a parliamentary
inquiry.
The CHIEF JUSTICE. The Chair recognizes the Senator from
Texas, Mrs. Hutchison.
Mrs. HUTCHISON. Mr. Chief Justice, rule XX says that while
the Senate is in session the doors shall remain open unless the
Senate directs that the doors be closed.
My inquiry is this: If the Senate, by a majority, voted not
to direct the doors to be closed, would it be in order to
proceed to deliberations with the doors open?
The CHIEF JUSTICE. The Chair is of the view that it would
not be in order for this reason: On the initial reading of
rules XX and XXIV of the Senate impeachment rules, it would not
appear to mandate that the deliberations and debate occur in
closed session, but only to permit it. But it is clear from a
review of the history of the rules that the committee that was
established in 1868 to create the rules specifically intended
to require closed sessions for debate and deliberation. Senator
Howard reported the rules for the committee and clearly stated
this intention, and Chief Justice Chase, in the Andrew Johnson
trial, stated in response to an inquiry, ``There can be no
deliberation unless the doors are closed. There can be no
debate under the rules unless the doors be closed.''
I understand from the Parliamentarian that it has been the
consistent practice of the Senate for the last 130 years in
impeachment trials to require deliberations and debate by the
Senate to be held in closed session. Therefore--though there
may be some ambiguity between the two rules--my ruling is based
partly on deference to the Senate's longstanding practice.
In the opinion of the Chair, there can be no deliberation
on any question before the Senate in open session unless the
Senate suspends its rules, or consent is granted.
Mrs. HUTCHISON. Thank you.
Motion to Close the Doors for Final Deliberation
Mr. LOTT. Mr. Chief Justice, with that record now having
been made, I now move that the doors for final deliberations be
closed, and I ask unanimous consent that the yeas and nays be
vitiated.
The CHIEF JUSTICE. Is there objection?
Mr. WELLSTONE addressed the Chair.
The CHIEF JUSTICE. The Senator from Minnesota is
recognized.
Mr. WELLSTONE. Mr. Chief Justice, the majority leader is
trying to get the floor, but I wonder whether I could not move
that any Senator be allowed, if he or she makes it their
choice, to have our statements that have been made and passed
in closed session left entirely up to us to also be a part of
the Congressional Record.
Mr. LOTT. Mr. Chief Justice, if I could respond, give us an
opportunity to discuss this with you. We will have another
opportunity to do that. I think maybe we can work something
out. I would like to make sure we have thought it through, if
that is appropriate, Mr. Chief Justice.
The CHIEF JUSTICE. Is there objection?
Mr. HARKIN. Mr. Chief Justice, I object.
The CHIEF JUSTICE. Objection is heard.
The yeas and nays are automatic. The clerk will call the
roll.
The bill clerk called the roll.
The result was announced--yeas 53, nays 47, as follows:
[Rollcall Vote No. 16]
[Subject: Motion to close the doors]
YEAS--53
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--47
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Hutchison
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Specter
Torricelli
Wellstone
Wyden
The motion was agreed to.
Closed Session
[At 1:52 p.m., the doors of the Chamber were closed. The
proceedings of the Senate were held in closed session until
6:27 p.m.; whereupon, the Senate resumed open session.]
Open Session
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the Senate resume open session.
The CHIEF JUSTICE. Without objection, it is so ordered.
------
adjournment until 10 a.m. tomorrow
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the Senate stand adjourned until 10 a.m. tomorrow. I further
ask unanimous consent that immediately following the prayer on
Wednesday, the Senate resume closed session for further
deliberations of the pending articles of impeachment.
The CHIEF JUSTICE. Is there objection? There being no
objection, it is so ordered.
Mr. LOTT. All Senators please remain standing at your desk.
Thereupon, at 6:27 p.m., the Senate, sitting as a Court of
Impeachment, adjourned until Wednesday, February 10, 1999, at
10 a.m.
------
MOTIONS TO OPEN TO THE PUBLIC THE FINAL DELIBERATIONS ON THE ARTICLES
OF IMPEACHMENT
Mr. LEAHY. Mr. Chief Justice, in relation to the earlier
vote, I have these thoughts. 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 question, motion and now on the
final vote on the articles of impeachment.
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, however, 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.'' (Cong. Globe Supp'l, Impeachment
Trial of President Andrew Johnson, 40th Cong., 2d Sess., vol.
4, p. 424.) 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 and rapid news cycles, 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 we are approaching our
final deliberations on the articles of impeachment, themselves,
I hope that this secrecy rule will be suspended so that the
Senate's deliberations are open and the American people can 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 our 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 8 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 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
Republican 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 Republican 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 certain
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 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.''
(Hrg. August 5 and 6, 1974, p. 37).
Opening deliberation will 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 in his
important book, ``The Federal Impeachment Process,'' that ``the
Senate is ideally suited for balancing the tasks of making
policy and finding facts (as required in impeachment trials)
with political accountability.'' 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 urge 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.'' (``Impeachment: A Handbook,'' p. 17.)
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.
I ask unanimous consent that a copy of the Application of
Cable News Network, submitted by Floyd Abrams and others, be
printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
IN THE U.S. SENATE SITTING AS A COURT OF IMPEACHMENT
______
In re
Impeachment of William Jefferson Clinton, President of the United
States
______
application of cable news network for a determination that the closure
of these proceedings violates the first amendment to the united states
constitution
______
To: The Honorable William H. Rehnquist and The Honorable Members of the
U.S. Senate
Cable News Network (``CNN'') respectfully submits this application
for a determination that the First Amendment to the United States
Constitution requires that the public be permitted to attend and view
the debates, deliberations and proceedings of the United States Senate
as to the issue of whether President William Jefferson Clinton shall be
convicted and as to other related matters.
---------------------------------------------------------------------------
Footnotes at end of document.
---------------------------------------------------------------------------
introduction
Under Rules VII, XX and XXIV of the ``Rules of Procedure and
Practice in the Senate When Sitting On Impeachment Trials,'' the Senate
has determined to sit in closed session during its consideration of
various issues that have arisen during these impeachment proceedings.
Motions to suspend the rules have failed and the debates among members
of the Senate as to a number of significant matters have been closed.
As the final debates and deliberations approach at which each member of
the Senate will voice his or her views on the issue of whether
President Clinton should be convicted or acquitted of the charges made,
the need for the closest, most intense public scrutiny of the
proceedings in this body increases. By this application, CNN seeks
access for the public to observe those debates, as well as other
proceedings that bear upon the resolution of the impeachment trial. The
basis of this application is the First Amendment to the Constitution of
the United States.
We make this application mindful that deliberations upon
impeachment were conducted behind ``closed doors'' at the last
impeachment trial of a President, in 1868. We are, as well, mindful of
the power of the Senate--consistent with the power conferred upon it in
Article I, Section 3 of the Constitution--to exercise full control over
the conduct of impeachment proceedings held before it. In so doing,
however, the Senate must itself be mindful of its unavoidable
responsibility to adopt rules and procedures consistent with the
entirety of the Constitution as it is now understood and as the Supreme
Court has interpreted it.
The commands of the First Amendment, we urge, are at war with
closed-door impeachment deliberations. If there is one principle at the
core of the First Amendment it is that, as Madison wrote, ``the
censorial power is in the people over the Government, and not in the
Government over the people.'' 4 Annals of Congress, p. 934 (1794). That
proposition in turn is rooted in the expectation that citizens--the
people--will have the information that enables them to judge government
and those in government. The right and ability of citizens to obtain
the information necessary for self-government is indeed at the heart of
the Republic itself: ``a people who mean to be their own Governors,''
Madison also wrote, ``must arm themselves with the power which
knowledge gives.'' James Madison, Letter to W.T. Barry, in 9 Writings
of James Madison 103 (G. Hunt ed., 1910). As Chief Justice Warren
Burger observed, writing for the Supreme Court in 1980 in one of its
many recent rulings vindicating the principle of open government:
``People in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they are
prohibited from observing.'' Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 572 (1980). Those very words could well have been written
about the proceedings before the Senate today.
All agree that the impeachment of a President presents the most
solemn question of self-government that a free society can ever
confront. All should also agree that the public ought to have the most
complete information about each decision made by the body responsible
for ruling upon that impeachment. Should the Senate vote to convict, a
President duly elected twice by the public will be removed from office.
Does not a self-governing public have the most powerful interest in
being informed about every aspect of that decision and why it was
taken? Should the Senate vote to acquit, the President will not be
removed in the face of impeachment proceedings in which the majority in
the House branded him a criminal. Can it seriously be doubted that the
public possesses just as profound a right to know why?
Only recently--and only during this century (and well after the
trial of Andrew Johnson)--has our commitment to the principle that
debate on public issues should be open become not merely a nationally
shared philosophy but an element embedded in constitutional law as
well. But deeply-rooted in the law it has become. It is thus no answer
to observe that impeachment deliberations in the Senate were closed in
the nineteenth century. The Senate has a duty to consider the
transformation of First Amendment principles since that time in
determining whether it is now constitutionally permissible to close
impeachment deliberations on the eve of the twenty-first century. If,
as is also true, the Senate, rather than the Supreme Court, was chosen
to try impeachments precisely because its members are ``the
representatives of the nation,'' Federalist No. 65, and as such possess
a greater ``degree of credit and authority'' than the Supreme Court to
carry out the task of determining the fate of a President,\1\ that
``credit and authority'' can only be brought to bear if the process by
which judgment is reached is open to the public.
the obligation of congress to account for and abide by the first
amendment
As we have said, we are mindful of the language of Article I,
Section 3, according the Senate the ``sole Power to try all
Impeachments.'' See Nixon v. United States, 506 U.S. 224 (1993)
(according the Senate broad discretion to choose impeachment
procedures). But this very delegation of authority to the Senate, a
delegation that makes most issues concerning impeachment rules ``non-
justiciable'', see Nixon, supra, also imposes on this body a very
special responsibility to ensure that those rules comply with
constitutional mandates.\2\ Congress itself--the very entity against
which the First Amendment affords the most explicit protection \3\--is
bound to abide by the First Amendment. The Constitution is ``the
supreme Law of the Land,'' U.S. Const., art. VI, para. 2, and all
``Senators and Representatives . . . shall be bound by Oath or
Affirmation, to support'' it. Id. para. 3. The Supreme Court has
repeatedly recognized that Congress is itself obligated to interpret
the Constitution in exercising its authority. See, e.g., Rostker v.
Goldberg, 453 U.S. 57, 64 (1981) (``Congress is a coequal branch of
government whose Members take the same oath we do to uphold the
Constitution of the United States.''). And in promulgating its rules
the Congress must, of course, abide by the Constitution: ``The
constitution empowers each house to determine its rules and
proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights. . . .'' United States v. Ballin, 144
U.S. 1, 5 (1892), quoted in Consumers Union of United States, Inc. v.
Periodical Correspondents' Assoc., 515 F.2d 1341, 1347 (D.C. Cir.
1975), cert. denied, 423 U.S. 1051 (1976); see Watkins v. United
States, 354 U.S. 178, 188 (1957).
the command of the first amendment
The architecture of free speech law--and, in particular, that law
placed in the context of access to information as to how and why
government power is being exercised--could not more strongly favor the
broadest dissemination of information about, and comment on,
government. The foundation of the First Amendment is, in fact, our
republican form of government itself. As the Supreme Court recognized
in the landmark free speech decision, New York Times Co. v. Sullivan,
376 U.S. 254 (1964): ``. . . the Constitution created a form of
government under which `[t]he people, not the government possess the
absolute sovereignty.' The structure of the government dispersed power
in reflection of the people's distrust of concentrated power, and of
power itself at all levels. This form of government was `altogether
different' from the British form, under which the Crown was sovereign
and the people were subjects.'' Id. at 274 (quoting Reporting of the
General Assembly of Virginia, 4 Elliot's Debates). In Sullivan, a
unanimous Court determined that the ``altogether different'' form of
government ratified by the Founders necessitated an altogether
``different degree of freedom'' as to political debate than had existed
in England. Id. at 275 (citation omitted). It was in the First
Amendment that this unique freedom was enshrined and protected.
For the Court, the ``central meaning of the First Amendment,'' 376
U.S. at 273, was the ``right of free public discussion of the
stewardship of public officials. . . .'' Id. at 275. Thus, the First
Amendment ``was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the
people.'' Roth v. United States, 354 U.S. 476, 484. ``The maintenance
of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes
may be obtained by lawful means, an opportunity essential to the
security of the Republic, is a fundamental principle of our
constitutional system.'' Stromberg v. California, 283 U.S. 359, 369.
Id. at 269.\4\
The decision in Sullivan related specifically to libel law. But
what made Sullivan so transformative--what made it, as the eminent
First Amendment scholar Alexander Meiklejohn remarked, cause for
``dancing in the streets'' \5\--was this: it recognized (in Madison's
words) that ``[t]he people, not the government, possess the absolute
sovereignty.'' Sullivan, 376 U.S. at 274. It emphasized that the First
Amendment protected the ``citizen-critic'' of government. Id. at 282.
It barred government itself from seeking damages from insults directed
at it by its citizens. And it declared that ``public discussion is a
political duty.'' Id. at 270.
In the decades following Sullivan, these notions became embedded in
the First Amendment--and thus the rule of law--through dozens of
rulings of the Supreme Court. In particular, and following from, the
First Amendment protection of public discussion is the right of the
public to receive information about government. The First Amendment is
not merely a bar on the affirmative suppression of speech; as Chief
Justice Rehnquist has observed, ``censorship . . . as often as not is
exercised not merely by forbidding the printing of information in the
possession of a correspondent, but in denying him access to places
where he might obtain such information.'' William H. Rehnquist, ``The
First Amendment: Freedom, Philosophy, and the Law,'' 12 Gonz. L. Rev.
1, 17 (1976).
And, indeed, the Supreme Court has repeatedly affirmed Chief
Justice Rehnquist's insight. ``[T]he First Amendment goes beyond
protection of the press and the self-expression of individuals to
prohibit government from limiting the stock of information from which
members of the public may draw.'' First National Bank of Boston v.
Bellotti, 435 U.S. 765, 783 (1978); Accord Kleindienst v. Mandel, 408
U.S. 753, 762 (1972) (``In a variety of contexts this Court has
referred to a First Amendment right to `receive information and ideas.'
'').
The Supreme Court has thus ruled on four occasions that the First
Amendment creates a right for the public to attend and observe criminal
trials and related judicial proceedings, absent the most extraordinary
of circumstances. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982);
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press-
Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). The cases are
particularly relevant to this application because they--perhaps more
clearly than any others--illustrate the core constitutional principle
that government may not arbitrarily foreclose the opportunity for
citizens to obtain information central to the decisions they make--and
the judgments they render--about government itself.
The teaching of this quartet of cases was aptly articulated by
another Chief Justice, Warren Burger, writing for the Court in Richmond
Newspapers, the first of the four decisions. The First Amendment, he
wrote, ``assur[es] freedom of communication on matters relating to the
functioning of government.'' 448 U.S. at 575. Noting the centrality of
the openness in which trials were conducted to that end, id. at 575,
the Court stated that openness was an ``indispensable attribute of an
Anglo-American trial.'' Id. at 569. It had assured that proceedings
were conducted fairly, and it had ``discouraged perjury, the misconduct
of participants, and decisions based on secret bias''. Id. Most
significantly, open trials had provided public acceptance of and
support for the entire judicial process. It was with respect to this
benefit of openness--the legitimacy it provides to the actions of
government itself--that Chief Justice Burger (in the passage quoted
above), observed that ``[p]eople in an open society do not demand
infallibility from their institutions, but it is difficult for them to
accept what they are prohibited from observing.'' Id. at 562.\6\
To be sure, the Chief Justice in Richmond Newspapers rested heavily
on the tradition of openness of criminal trials themselves--a
difference of potential relevance because impeachment debates and
deliberation have historically been conducted in secret. But, taken
together, Richmond Newspapers and its progeny stand for propositions
far broader than the constitutional value of any specific historical
practice. The sheer range of proceedings endorsed as open by the
Supreme Court suggests the importance under the First Amendment of
public observation of the act of doing justice. Moreover, Supreme Court
precedent itself suggests that the crucial right to see justice done
prevails even where the specific kind of proceeding at issue had a
history of being closed to the public. In Globe Newspaper Co., the
Court ruled that the First Amendment barred government from closing of
trials of sexual offenses involving minor victims. It did so despite
the ``long history of exclusion of the public from trials involving
sexual assaults, particularly those against minors.'' 457 U.S. at 614
(Burger, C.J., dissenting).
New York Times Co. v. Sullivan and Richmond Newspapers have
significance which sweep far beyond their holdings that debate about
public figures must be open and robust and that trials must be
accessible to the public. Both cases--and all the later cases they have
spawned--are about the centrality of openness to the process of self-
governance. ``[T]he right of access to criminal trials plays a
particularly significant role in the functioning of the judicial
process and the government as a whole. Public scrutiny of a criminal
trial enhances the quality and safeguards the integrity of the fact-
finding process, with benefits to both the defendant and to society as
a whole. . . . And in the broadest terms, public access to criminal
trials permits the public to participate in and serve as a check upon
the judicial process--an essential component in our structure of self
government.'' Globe Newspaper Co., 457 U.S. at 606.
The First Amendment principles set forth above lead inexorably to a
straightforward conclusion: the Senate should determine as a matter of
First Amendment law that the public may attend and observe its debates
and deliberations about the impeachment of President Clinton. No issue
relates more to self-government. No determinations will have more
impact on the public. No judgment of the Senate should be subject to
more--and more informed--public scrutiny.
We are well aware that it is sometimes easier to be subjected to
less public scrutiny and that some have the perception (which has
sometimes proved accurate) that more can be accomplished more quickly
in secret than in public. But this is, at its core, an argument against
democracy itself, against the notion that it is the public itself which
should sit in judgment on the performance of this body. It is nothing
less than a rejection of the First Amendment itself. What Justice
Brennan said two decades ago in the context of judicial proceedings is
just as applicable here: ``Secrecy of judicial action can only breed
ignorance and distrust of courts and suspicion concerning the
competence and impartiality of judges; free and robust reporting,
criticism, and debate can contribute to public understanding of the
rule of law and to comprehension of the functioning of the entire
criminal justice system, as well as improve the quality of that system
by subjecting it to the cleansing effects of exposure and public
accountability.'' Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587
(1976) (Brennan, J., concurring).
That it is the tradition of this body to conduct impeachment
deliberations in closed session is not irrelevant. But neither should
it be governing. The Senate has, after all, conducted only one
presidential impeachment trial before this one. Our society in 1868--
and, more significantly still, our law in 1868--was far different than
it is today. As we have demonstrated, First Amendment jurisprudence as
we know it--as it governs us and binds the Senate--is essentially a
creature of the twentieth century. That jurisprudence assures public
scrutiny, not public ignorance.
There are, to be sure, certain limited instances when closure of
Senate deliberations may serve useful purposes, such as when they
involve disclosure of matters of national security. But no such
concerns are present here. And however proper it may be to analogize
the Senate in some ways to a jury, none of the considerations that
permits juries to deliberate out of the public eye are present here.
The identities of the ``jurors'' here are well known, as, under the
Senate rules, will be how each one voted. The Constitution does not
offer protection to the ``jurors'' here from the force of public
opinion for their votes for or against the conviction of President
Clinton. They will face the full weight of public approval or rejection
the next time they seek re-election. The Constitution does require that
the reasons they give for their votes and other statements made in the
course of debate be made in public so that both the debate and the
votes themselves can be assessed by the people--the ultimate
``Governors'' in this republic.
conclusion
From the time these proceedings commenced in the House of
Representatives through the submission of this application, members of
the Congress have repeatedly--and undoubtedly correctly--referred to
the weighty constitutional obligations imposed upon them by this
process. This application focuses on yet another constitutional
obligation of the members of the Senate, an obligation reflected in the
oath of office itself. It is that of adhering to the First Amendment.
We urge the Senate to do so by permitting the public to observe its
deliberations.
Dated: New York, NY, January 29, 1999.
Respectfully submitted,
David Hokler,
Senior Vice President and
General Counsel, Cable
News Network;
Floyd Abrams,
Dean Ringel,
Susan Buckley,
Jonathan Sherman,
Cahill Gordon & Reindel;
Counsel for Applicant
Cable News Network.
footnotes
\1\ Federalist No. 65; see Nixon v. United States, 506 U.S. 224,
233-34 (1993).
\2\ It is precisely because the Senate possesses this power over
its own rules that this application is made to the Senate rather than
to any court.
\3\ ``Congress shall make no law . . . abridging the freedom of
speech, or of the press . . . .''
\4\ See Thomas Emerson, The System of Freedom of Expression 7
(1970); John Hart Ely, Democracy and Distrust 93-94 (1980); Robert
Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.
L.J. 1, 23 (1971); see generally Alexander Meiklejohn, Free Speech and
Its Relation to Self-Government (1948).
\5\ Harry Kalven, The New York Times Case: A Note on ``The Central
Meaning of the First Amendment,'' 1964 Supp. Ct. Rev. 191, 211 n. 125.
\6\ The right of the public and the press to have access ``to news
or information concerning the operations and activities of
government,'' a right predicated in part on the principles set forth in
cases such as Richmond Newspapers and its progeny, has been recognized
in a variety of contexts outside the courtroom. Cable News Network,
Inc. v. American Broadcasting Companies, Inc., 518 F. Supp. 1238, 1243
(N.D. Ga. 1981) (court enjoins Executive's expulsion of television
networks from press travel pool covering the President); see also
Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) (court requires White
House to publish standards for denying press accreditation on security
grounds).
______
IMPEACHMENT TRIAL--FINDINGS OF FACT PROPOSALS
Mr. FEINGOLD. Mr. Chief Justice, on January 28, I was the
only Democratic Senator to cross party lines and oppose the
motion to dismiss. I felt it would be unwise to end this trial
prior to a more complete presentation of evidence and a final
vote on the articles of impeachment themselves. Nonetheless, I
had no doubt that a motion to dismiss was a constitutional way
to end the trial, if a majority of Senators had supported the
motion.
The Senate must keep in mind at every step in this process
that our actions will be scrutinized not just by our
constituents today and for the rest of the trial, but also by
history. If another impeachment trial should occur 130 years
from now, the record of this trial will serve as an important
precedent for the Senate as it determines how to proceed. It is
our responsibility to abide by the Constitution as closely as
possible throughout the remainder of this trial. My votes on
House managers' motions on February 4 were based on the same
concerns about prudence and precedent that motivated my earlier
votes on the motion to dismiss and calling witnesses.
With the judgment of history awaiting us, I did have
serious concerns about the constitutionality of proposals that
the Senate should adopt so-called findings of fact before the
Senate votes on the articles of impeachment themselves. It now
appears that support for such proposals has waned, and the
Senate will not be called upon to vote on them. Nonetheless, I
want to explain my opposition to such proposals for the record.
Findings of fact would allow a simple 51-vote majority of
the Senate to state the judgment of the Senate on the facts of
this case and, in effect, to determine the President's
``guilt'' of the crimes alleged in the articles. But the
Constitution specifically requires that two-thirds of the
Senate must convict the President on the articles in order to
impose any sanction on him. The specific punishment set out by
the Constitution if the Senate convicts is removal from office,
and possibly disqualification from holding future office.
The supermajority requirement makes the impeachment process
difficult, and the framers intended that it be difficult. They
were very careful to avoid making conviction and removal of the
President something that could be accomplished for purely
partisan purposes. In only 23 out of 105 Congresses and in only
six Congresses in this century has one party held more than a
two-thirds majority in the Senate. Never in our history has a
President faced a Senate controlled by the other party by more
than a two-thirds majority. The Republican party had nearly 80
percent of the seats in the Senate that in 1868 tried Andrew
Johnson. Johnson was at that time also a Republican, although
he had been a Democrat before being chosen by Abraham Lincoln
to be his Vice President in 1864. The great difficulty of
obtaining a conviction in the Senate on charges that are seen
as motivated by partisan politics has discouraged impeachment
efforts in the past. Adding findings of fact to the process
would undercut this salutary effect of the supermajority
requirement for conviction.
The Senate must fulfill its constitutional obligation and
determine whether the President's acts require conviction and
removal. The critical constitutional tool of impeachment should
not be available simply to attack or criticize the President.
Impeachment is unique. It is the sole constitutionally
sanctioned encroachment on the principle of separation of
powers, and it must be used sparingly. If findings of fact had
been adopted in this trial, it would have set a dangerous
precedent that might have led to more frequent efforts to
impeach.
The ability of a simple majority of the Senate to determine
the President's guilt of the crimes alleged would distort the
impeachment process and increase the specter of partisanship.
When the Senate is sitting as a Court of Impeachment, its job
is simply to acquit or convict. And that is the only judgment
that the Senate should make during an impeachment trial.
------
MOTIONS PERTAINING TO WITNESS DEPOSITIONS AND TESTIMONY
Mr. DODD. Mr. Chief Justice, on Thursday, February 4, the
Senate, sitting as a Court of Impeachment, considered several
motions pertaining to the depositions and live testimony of
witnesses Monica Lewinsky, Vernon Jordan, and Sidney
Blumenthal. I wish to speak briefly on the important issues
raised by several of these motions.
First, let me say that I am pleased that the Senate, by a
bipartisan vote of 30-70, voted not to compel the live
testimony of Ms. Lewinsky. In my view, this was a sound
decision to support the expeditious conduct of this trial,
preserve the decorum of the Senate, and respect the privacy of
this particular witness.
Unfortunately, the Senate retreated from these same worthy
aims in deciding to permit the videotaped depositions of Ms.
Lewinsky, Mr. Jordan, and Mr. Blumenthal to be entered into
evidence and broadcast to the public. I believe that this
decision was erroneous for three basic reasons:
First, it needlessly prolonged the trial. Prior to February
4, Senators had an opportunity to view the depositions of each
of these witnesses--not once, but repeatedly. Numerous times we
could have viewed the content of their testimony, the tone of
their answers, and their demeanor while under oath. By
requiring that Senators view portions of these depositions
again on the floor, in whole or in part, the managers' motion
unnecessarily required the Senate to convene for an entire day.
We learned nothing by viewing excerpts of the depositions on
the floor that we had not already had an opportunity to learn
by viewing those depositions previously, either on videotape
or, in the case of myself and five other Senators, in person.
Second, allowing the depositions to be publicly aired on
the Senate floor exaggerated their importance. Even Manager
Hyde has acknowledged that these depositions broke no material
new ground in this case. Allowing their broadcast thus was not
only an injudicious use of the Senate's time, it also elevated
the significance of this particular testimony over all other
sworn testimony taken in this matter--solely by virtue of the
fact that it was recently videotaped. Broadcasting these
minuscule and marginal portions of the record--while not
broadcasting other depositions--does not illuminate the record
so much as distort it. The distortion is only compounded by
broadcasting selected portions of those depositions rather than
the depositions in their entirety. The President's counsel
obviously had an opportunity to rebut the managers'
presentation and characterization of those portions. However,
that rebuttal only underscores the fact that the managers'
motion to use these videotapes gave the videotapes a prominence
and gravity that they do not merit.
Third, under the circumstances, publicly airing portions of
these depositions constituted a needless invasion of the
privacy of the witnesses whose testimony was videotaped. Let us
remember that these individuals are not public figures who have
willingly surrendered a portion of their privacy as a
consequence of their freely chosen status. They are private
citizens, reluctantly drawn into legal proceedings. They have
attempted to discharge their obligations in those proceedings.
But that obligation does not extend to the public broadcast of
their videotaped depositions--particularly given that they have
testified repeatedly before, and that their videotaped
testimony contains no new material information. The privacy
rights of these individuals deserved greater consideration by
the managers and by the Senate. The managers did not need to
force the images of these witnesses into the living rooms and
family rooms of America in order to present their case. The
Senate did not need to allow that to happen in order to meet
its constitutional responsibility in this matter.
For these reasons, I opposed the managers' motion to
broadcast the deposition videotapes. In my view, the time has
come to bring this matter to an end. The record is voluminous,
the arguments have been made. We know enough to decide the
questions before us. That is why I supported Senator Daschle's
motion to proceed to final arguments and a vote on each of the
articles of impeachment. I regret that his motion was not
adopted, and that instead the Senate decided to needlessly
prolong this matter without sufficient regard for the privacy
of the witnesses deposed last week. However, that said, I am
pleased that, barring any unforseen developments, this trial
will at last conclude later this week. It is time for the
Senate to move on to the other important business of the
country that we were elected to address.
------
Wednesday, February 10, 1999
[From the Congressional Record]
The Senate met at 10:06 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Sovereign God, thank You for the good men and women of this
Senate. Today we ask what should be done when really good
people disagree. You have shown us so clearly what should and
should not be done. When the fabric of our human relationships
is being frayed, it is time to deepen our relationship with
You. Draw each Senator into healing communion with You that
will give physical strength and spiritual assurance of Your
unqualified love for him or her. Then in the inner heart give
Your peace and direction. Give each Senator the courage to
speak truth as she or he hears it and knows it. When this trial
is finished, may none feel the pangs of unspoken convictions.
Dear God, we also know there is something we dare not do
when good people disagree. You do not condone the impugning of
other people's characters because they hold different
convictions. You do not want us to break our unity or the bond
of sacred friendship. Bless these good Senators as they press
forward together with love for You, America, and each other. In
the unity of Your Spirit and the bond of peace. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The majority leader is recognized.
Order of Procedure
Mr. LOTT. Mr. Chief Justice, in a few moments, the Senate
will resume the closed session in order to allow Members to
continue to deliberate the two articles of impeachment. Members
are reminded that the motion adopted yesterday allows for a
Record to be printed on the day of the vote on the articles
which could contain Senators' final statements if they choose
to have them printed.
Also, Senator Daschle was just noting that while Senators
have been careful not to comment on the discussion in closed
session, we still should use a lot of discretion in going out
and talking to the media about the details of what is happening
here. I don't think there have been any violations, but use a
lot of discretion. I would prefer we not even talk about which
Senator spoke or how many spoke. I think we need to be careful
in doing that.
I expect the Senate will be in session until approximately
6. We will confer with the Senators, the leadership, and the
Chief Justice, and see how the discussions are going, and the
speeches, how many are being made. Perhaps we would wrap it up
before that. It would just depend on how much endurance we have
today.
We will have a break from 12 until about 1:15, one hour and
15 minutes for lunch, to allow the Chief Justice some time to
return to the Supreme Court and then come back.
I expect the Senate to convene again tomorrow at 10 a.m. in
order to try to conclude the debate and vote on the articles if
at all possible by 5 o'clock on Thursday. If we are still
having speeches, if we can't do it, we would certainly just go
over until Friday, but I think we need to talk about that goal
of 5 o'clock on Thursday.
Mr. REID. Thursday.
Mr. LOTT. Also, I know some Senators are still on the way
here from committee meetings. There are only two or three going
on today, but we didn't give them much notice that we were
going to begin at 10, but we are notifying everybody now that
we will come in at 10 tomorrow, so that they will go ahead and
be able to take action this morning to cancel those hearings
and be here sharply at 10 o'clock.
Again, we will alternate today, across the aisle, with the
speakers going for up to 15 minutes.
Senator Inhofe is scheduled to be our first speaker today.
Mr. COVERDELL addressed the Chair.
Mr. LOTT. I will be glad to yield to Senator Coverdell.
Mr. COVERDELL. Mr. Chief Justice, I ask unanimous consent
to pose a point of clarification to the majority leader.
The CHIEF JUSTICE. Without objection.
Mr. COVERDELL. Mr. Leader, I am still a little confused
about this posting of a statement in the Record. Is it possible
for a Member of the Senate to submit to the closed session
their statement rather than speaking? I think that might be
desirable on the part of some.
Mr. LOTT. I think the answer to that is yes. You can do
that.
Mr. COVERDELL. In other words, if I chose, I could submit
the statement in my sequence to the Record, and subsequently,
at my choice, decide whether it will be made part of the
Congressional Record subsequent to the close?
Mr. LOTT. I believe that is correct.
Mr. COVERDELL. I thank the Leader.
Mr. REID. Mr. Leader, and I would also say they would all
appear the same as if they were spoken or not spoken.
Mr. LOTT. Correct.
Mr. LEAHY. Will the distinguished majority leader yield?
Mr. LOTT. I yield to the Senator from Vermont.
Mr. LEAHY. Mr. Chief Justice--and I appreciate the courtesy
of my good friend from Mississippi--I notice, as he has, that
there are a lot of empty seats here in the Chamber. I realize
at one time we thought we were coming in at noon, to have
committee meetings.
If these statements are not made in the Record, the only
time we are going to have a chance to discuss with each other
what our thoughts are is in this closed session, by being here.
I also think, in respect to the Chief Justice, we should be
doing that.
I am inclined, I say to my friend from Mississippi, to
suggest the absence of a quorum. I am withholding, just for a
moment, doing that. But if we are going to be off in committee
meetings, I don't think that does service to the intent of this
closed door hearing.
I hope that both leaders--and I have discussed this with
the distinguished Democratic leader, too--would urge Members to
be here. Nothing could be more important than this on our
agenda today and tomorrow.
Mr. LOTT. Mr. Chief Justice, I certainly agree with that.
We are going to have to have a momentary quorum call, just to
get the doors closed and then officially go forward. We will
call and make sure all the committee hearings are being shut
down. Actually, I think Members are coming in steadily, and
within a moment we are probably going to have almost all the
Senators here. But we will take just a couple of minutes to
notify committees to complete their actions and for Senators to
come on the floor.
Mr. LEAHY. If I might complete then, Mr. Chief Justice, out
of respect to my friend from Mississippi, and in courtesy to
what he said, I will not make that suggestion, knowing that he
is going to make a similar suggestion anyway.
Mr. GRAMM. Will the distinguished majority leader yield?
Mr. LOTT. I will be glad to yield.
Mr. GRAMM. Mr. Chief Justice, we are eager to get on with
the debate. We have a quorum present. The Senator can make a
point of order that a quorum is not present, but it is obvious
to the naked eye that a quorum is present.
Mrs. HUTCHISON. Mr. Leader, would you yield?
Mr. LOTT. I will be glad to yield.
Mrs. HUTCHISON. I think it is important, for the record,
that it be known there are at least 60 to 70 Members in the
Chamber, ready to proceed.
Mr. LOTT. My count is we have about 70 Members here. I am
sure we will have a full complement here momentarily, so we can
lock the doors and give a few more Senators a little more time
to get here. Would the Senator from Alaska like to speak?
Mr. MURKOWSKI. May I ask for clarification relative to
submitting statements in the Record and having them printed?
What day would they be printed in the Record, assuming that we
finish Thursday? The Friday Record?
Mr. LOTT. The day of the vote, which means it would come
out, I guess, the next day. So if we vote on Thursday--if we
vote on Friday, then it would be available, I guess, Saturday
morning. If we vote Thursday night, it would be available in
the Record Friday morning.
Mr. MURKOWSKI. I thank the leader.
Mr. LOTT. If the Senators choose.
Mr. Chief Justice, I suggest the absence of a quorum.
The CHIEF JUSTICE. Would the leader wish we go into closed
session before the quorum call?
Mr. LOTT. Yes, Mr. Chief Justice, and then suggest the
absence of a quorum.
The CHIEF JUSTICE. The Senate will now resume closed
session for final deliberations on the articles of impeachment.
Closed Session
[At 10:16 a.m., the doors of the Chamber were closed. The
proceedings of the Senate were held in closed session until
6:21 p.m.; whereupon, the Senate resumed open session.]
Open Session
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent
that the Senate return to open session.
The CHIEF JUSTICE. Without objection, it is so ordered.
Orders for Thursday, February 11, 1999
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
when the Senate completes its business today, it stand in
adjournment until 10 a.m. on Thursday, February 11. I further
ask that upon reconvening on Thursday and immediately following
the prayer, the majority leader be recognized to make a brief
statement with respect to the Senate schedule. I further ask
unanimous consent that following the majority leader's
comments, the Senate resume final deliberations in closed
session on the articles of impeachment.
The CHIEF JUSTICE. In the absence of objection, it is so
ordered.
Program
Mr. LOTT. We will reconvene tomorrow morning at 10 o'clock.
We hope to be able to finish tomorrow afternoon, Mr. Chief
Justice, but we have to make a ot better progress than we did
today.
------
ADJOURNMENT UNTIL 10 A.M. TOMORROW
Mr. LOTT. If there is no further business, I ask unanimous
consent that the Senate adjourn under the previous order.
There being no objection, at 6:21 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Thursday, February
11, 1999, at 10 a.m.
------
Thursday, February 11, 1999
[From the Congressional Record]
The Senate met at 10:07 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Holy God, Who allows beginnings and brings an end, a time
for healing, a time to mend, we ask You to pour out Your
palpable, unifying power on this Senate. Today, may the
Senators count on You more than they count votes. This is a
time neither for gloating over victory nor for grimness over
losing, but rather a period for grief over all that has brought
us to this day. We are one Nation under You; we repent as a
Nation; we turn from conditional ethics and seek to return to
the absolutes of Your Commandments.
Thank You, Lord, for the clarion convictions expressed
during this trial by so many Senators of both parties that
morals do matter and character does count. May this shared,
common commitment unite them as they lead this Nation. Now, as
their chaplain, I hold them all before Your grace and mercy; as
their friend, I intercede for their spiritual strength and
courage. When the final votes are taken, hold them together in
the oneness America so desperately needs them to exemplify.
Help them to model rectitude and reconciliation. By Your power,
the winner will be neither the Republicans nor the Democrats,
but the American people. In Your holy Name. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice.
Order Of Procedure
Mr. LOTT. This morning the Senate will resume final
deliberations in closed session. Our best guess, at this time,
leaves approximately 37 Senators still intending to speak. It
is possible that we could conclude and have the final votes
this afternoon or late this evening, but I don't think that is
going to be possible at this time. When we do approach that
point, I would like to do it in an orderly fashion, that
Members and those who are interested will be given notice. We
have some business we would have to conclude, also, after all
the deliberations have been complete. I will confer throughout
the day with Senator Daschle to see how it is going, and as
soon as we can see clearly when we would want to actually move
to the final vote, we will notify all the Senators.
We will also take a lunch break sometime today between 12
and 12:30, and we will have, of course, some breaks throughout
the day to take some refreshments.
I yield the floor to allow the Chief Justice to close the
session.
The CHIEF JUSTICE. The Senate will now go into closed
session for final deliberations on the articles of impeachment.
The Sergeant at Arms is directed to clear the galleries and
close the doors of the Senate Chamber.
Closed Session
[At 10:11 a.m., the doors of the Chamber were closed. The
proceedings of the Senate were held in closed session until
7:00 p.m., at which time the following occurred.]
Open Session
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the Senate resume open session.
The CHIEF JUSTICE. Without objection, it is so ordered.
ADJOURNMENT UNTIL 9:30 A.M. TOMORROW
Mr. LOTT. I ask unanimous consent that the Court of
Impeachment stand in adjournment until 9:30 tomorrow morning,
and the Senate then immediately proceed to closed session. I
ask unanimous consent the Senate now resume legislative session
in order to conduct some housekeeping business.
The CHIEF JUSTICE. Without objection, it is so ordered.
Thereupon, at 7 p.m. the Senate, sitting as a Court of
Impeachment, adjourned until Friday, February 12, 1999, at 9:30
a.m.
------
AUTHORIZING THE TAKING OF PHOTOGRAPHS IN THE CHAMBER OF THE U.S. SENATE
Mr. LOTT. Mr. President, I send a resolution to the desk
regarding the taking of pictures in the Senate Chamber during
the impeachment vote and ask unanimous consent the resolution
be considered agreed to and the motion to reconsider be laid
upon the table.
Mr. WELLSTONE. Mr. President, I object. I would like to
have a voice vote.
Mrs. BOXER. Just a voice vote.
Mr. LOTT. Mr. President, I move that this resolution be
adopted by the Senate.
The PRESIDING OFFICER (Mr. Enzi). The clerk will report.
The legislative clerk read as follows:
A resolution (S. Res. 36) authorizing the taking of
photographs in the Chamber of the United States Senate.
The PRESIDING OFFICER. The question is on agreeing to the
motion.
The resolution (S. Res. 36) was agreed to, as follows:
S. Res. 36
Resolved, That paragraph 1 of rule IV of the Rules for the
Regulation of the Senate Wing of the United States Capitol (prohibiting
the taking of pictures in the Senate Chamber) be temporarily suspended
for the sole and specific purpose of permitting photographs to be taken
on February 11 or 12, 1999, during the roll call vote on the Articles
of Impeachment in the impeachment trial of the President of the United
States.
Sec. 2. The Sergeant at Arms of the Senate is authorized and
directed to make the necessary arrangements therefor, which
arrangements shall provide for a minimum of disruption to Senate
proceedings.
______
appointing a committee to escort the chief justice
Mr. LOTT. Mr. President, I ask unanimous consent the
Presiding Officer be authorized to appoint a committee of
Senators, three upon the recommendation of the majority leader
and three upon the recommendation of the minority leader, to
escort the Chief Justice out of the Senate Chamber at the
conclusion of the Court of Impeachment.
The PRESIDING OFFICER. Without objection, the Chair, on
behalf of the majority leader, appoints Mr. Thurmond of South
Carolina, Mr. Roth of Delaware, and Mr. Domenici of New Mexico,
and, on behalf of the Democratic leader, Mr. Sarbanes of
Maryland, Mr. Moynihan of New York, and Mrs. Lincoln from
Arkansas.
------
unanimous consent agreement--censure resolution
Mr. LOTT. Mr. President, I ask unanimous consent that if
Senator Feinstein offers her motion to suspend the rules in
order to attempt to consider a censure resolution, and
immediately following the reading of the motion by the clerk,
Senator Gramm of Texas be recognized to offer a motion to
postpone the Feinstein motion indefinitely.
I further ask that immediately following the reporting of
the Gramm motion by the clerk, the Senate proceed to a vote on
the Gramm motion, immediately, all without any intervening
debate or action.
I further ask that following the vote, if two-thirds of the
Senate fail to defeat the motion to postpone, then the motion
to suspend is withdrawn and that no further motions relative to
censure be in order prior to this week's adjournment of the
Senate.
I finally ask that following that vote there be up to 2
hours of morning business to be equally divided between the two
leaders or their designees.
And before the Chair puts the question on the unanimous
consent request, I just want to advise my colleagues on both
sides, this has been cleared on both sides of the aisle, by the
sponsor, Senator Feinstein, and by Senator Gramm on the other
side. I believe this is a fair way, all things considered, to
deal with this matter.
The PRESIDING OFFICER. Without objection, it is so ordered.
Friday, February 12, 1999
[From the Congressional Record]
The Senate met at 9:36 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment. The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Lloyd John Ogilvie, offered the following
prayer:
Gracious God, whose love for this Nation has been displayed
so magnificently through our history, we praise You that Your
presence fills this historic Chamber and enters into the minds
of the Senators gathered here. Each of them is here by Your
divine appointment. Together they claim Your promise, ``Call
upon Me in the day of trouble: I will deliver you.''--Ps.50:15.
We call upon You on this day of trouble in America as this
impeachment trial comes to a close. You have enabled an honest,
open debate of alternative solutions. Soon a vote will be
taken. You have established a spirit of unity in the midst of
differences. Most important of all, we know that we can trust
You with the results. You can use what is decided and continue
to accomplish Your plans for America. We entrust to Your care
the President and his family. Use whatever is decided today to
enable a deeper experience of Your grace in his life and
healing in his family. We commit this day to You and thank You
for the hope that fills our hearts as we place our complete
trust in You. You are our Lord and Saviour. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the
proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The Journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The majority leader is recognized.
Mr. LOTT. Thank you, Mr. Chief Justice.
Order of Procedure
Mr. LOTT. For the information of all Senators, later on
today, the Secretary of the Senate will be putting at each
Senator's desk something I think you will enjoy reading later.
It is the prayers of the Chaplain during the impeachment trial.
Subsequently, we plan to put it in a small pamphlet because
they truly have been magnificent. We thought you each would
like to have copies.
The Senate will resume final deliberations now in the
closed session. Thank goodness. At this point in the
proceedings, there are approximately eight Members who still
wish to speak or submit part of their speech into the Record.
Following those final speeches, the Senate will resume open
session and proceed to the votes on the two articles of
impeachment. I estimate that those votes will begin at
approximately 11, 11:30. However, the exact time will depend on
the length of the remaining speeches, and also we will have to
have a few minutes to open the Chamber and the galleries so
that our constituents and our families can enter the galleries
if they would like to.
Following those votes, all Senators should remain at their
desks as the Senate proceeds to several housekeeping items
relating to the adjournment of the Court of Impeachment. So
again, I emphasize, please, after the votes, don't rush out of
the Chamber because we have some very important proceedings to
attend to, and I think you will enjoy them if you will stay and
participate.
Under the consent agreement reached last night, following
those votes, a motion relating to censure may be offered by the
Senator from California, Mrs. Feinstein. If offered, Senator
Gramm will be recognized to offer a motion relative to the
Feinstein motion, with a vote to occur on the Gramm motion.
Therefore, Senators may anticipate an additional vote or votes
following the votes on the articles.
I thank the Senators. And I believe we are ready to proceed
to the closed session.
Mrs. BOXER. Will the majority leader yield for a question?
Mr. LOTT. Yes.
Mrs. BOXER. Will there be intervening debate or no debate
on any of those votes?
Mr. LOTT. In the UC that was reached last night, I believe
we have 2 hours, which will be equally divided, for Senators to
submit statements at that point or to make speeches if they
would like. So after the votes, yes.
Mrs. BOXER. That is the question. Yes.
Mr. LOTT. I presume we will go on for a couple hours--2 or
3 o'clock in the afternoon, yes.
Unanimous Consent Agreement--Printing of Statements in the Record and
Printing of Senate Document of Impeachment Proceedings
Mr. LOTT. I would like to clarify one other matter.
Senators will recall the motion approved February 9, 1999,
which permitted each Senator to place in the Congressional
Record his or her own statements made during final
deliberations in closed session.
I ask unanimous consent that public statements made by
Senators subsequent to the approval of that motion, with
respect to his or her own statements made during the closed
session, be deemed to be in compliance with the Senate rules.
This would permit a Senator to release to the public his or her
statement made during final deliberations in closed session,
except that, in doing so, a Senator may not disclose any
remarks of the other Senators made during deliberations,
without the prior consent, of course, of that Senator.
I further ask unanimous consent that Senators have until
Tuesday, February 23, 1999--that would be the Tuesday after we
come back--to have printed statements and opinions in the
Congressional Record, if they choose, explaining their votes.
Finally, I ask unanimous consent that the Secretary be
authorized to include these statements, 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.
Mr. REID. Mr. Leader, point of clarification. I had a
couple of Members ask, does it take an affirmative act of a
Senator to get their speech placed in the Record or does it
happen automatically?
Mr. LOTT. I believe it does take an affirmative act. It is
not automatic.
Mr. REID. To whom should that be given?
Mr. LOTT. It should be given to the clerks at the desk, or
to Marty on your side, or your secretary of the minority, or
the secretary of the majority. They will get it into the Record
at the right place.
So I believe, once again, we are ready to go to our closed
session.
Mrs. HUTCHISON. Will the majority leader yield for a
question?
Mr. LOTT. Yes.
Mrs. HUTCHISON. It does not require each person to ask
unanimous consent to insert their remarks, just giving it?
Mr. LOTT. Yes. That has already been cleared.
I believe we have a unanimous consent request propounded.
The CHIEF JUSTICE. Without objection, it is so ordered.
The Senate will now go into closed session to complete its
deliberations on the articles of impeachment. The Sergeant at
Arms is directed to clear the galleries and close the doors of
the Senate Chamber.
Mr. LOTT. Mr. Chief Justice, I suggest the absence of a
quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Closed Session
[At 9:44 a.m., the doors of the Chamber were closed. The
proceedings of the Senate were held in closed session until
12:04 p.m.; whereupon, the Senate resumed open session.]
Open Session
Mr. LOTT. Will Senators return to their desks? Managers,
thank you for joining us. Would Senators stand, and the
gallery, as the Chief Justice enters the Chamber, please.
The CHIEF JUSTICE. The Senate will be in order.
Mr. LOTT. Mr. Chief Justice, Members of the Senate, the
Senate has met almost exclusively as a Court of Impeachment
since January 7, 1999, to consider the articles of impeachment
against the President of the United States. The Senate meets
today to conclude this trial by voting on the articles of
impeachment, thereby, fulfilling its obligation under the
Constitution. I believe we are ready to proceed to the votes on
the articles. I yield the floor.
The CHIEF JUSTICE. The Chair would inform those in
attendance in the Senate galleries that under rule XIX of the
Standing Rules of the Senate, demonstrations of approval or
disapproval are prohibited, and it is the duty of the Chair to
enforce order on its own initiative.
Article I
The CHIEF JUSTICE. The clerk will now read the first
Article of impeachment.
The legislative clerk read as follows:
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 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 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.
The CHIEF JUSTICE. The Chair reminds the Senate that each
Senator, when his or her name is called, will stand in his or
her place and vote ``guilty'' or ``not guilty'' as required by
rule XXIII of the Senate rules on impeachment.
The Chair also refers to article I, section 3, clause 6, of
the Constitution regarding the vote required for conviction on
impeachment: ``[N]o Person shall be convicted without the
Concurrence of two-thirds of the Members present.''
Vote On Article I
The CHIEF JUSTICE. The question is on the first article of
impeachment. Senators, how say you? Is the respondent, William
Jefferson Clinton, guilty or not guilty? A rollcall vote is
required.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. SPECTER (When his name was called). Not proven,
therefore, not guilty.
The result was announced--guilty 45, not guilty 55, as
follows:
[Rollcall Vote No. 17]
[Subject: Article I--Articles of Impeachment Against President William
Jefferson Clinton]
GUILTY--45
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Cochran
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Smith (NH)
Smith (OR)
Thomas
Thurmond
Voinovich
NOT GUILTY--55
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Chafee
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Gorton
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Shelby
Snowe
Specter
Stevens
Thompson
Torricelli
Warner
Wellstone
Wyden
The CHIEF JUSTICE. On this article of impeachment, 45
Senators having pronounced William Jefferson Clinton, President
of the United States, guilty as charged, 55 Senators having
pronounced him not guilty, two-thirds of the Senators present
not having pronounced him guilty, the Senate adjudges that the
respondent, William Jefferson Clinton, President of the United
States, is not guilty as charged in the first article of
impeachment.
Article II
The CHIEF JUSTICE. The clerk will read the second article
of impeachment.
The legislative clerk read as follows:
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
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.
Vote on Article II
The CHIEF JUSTICE. The question is on the second article of
impeachment. Senators, how say you? Is the respondent, William
Jefferson Clinton, guilty or not guilty?
The clerk will call the roll.
The bill clerk called the roll.
Mr. SPECTER (When his name was called). Not proven,
therefore, not guilty.
The result was announced--guilty 50, not guilty 50, as
follows:
[Rollcall Vote No. 18]
[Subject: Article II--Articles of Impeachment against President William
Jefferson Clinton]
GUILTY--50
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Cochran
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT GUILTY--50
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Chafee
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Snowe
Specter
Torricelli
Wellstone
Wyden
The CHIEF JUSTICE. The galleries will be in order.
On this article of impeachment, 50 Senators having
pronounced William Jefferson Clinton, President of the United
States, guilty as charged, 50 Senators having pronounced him
not guilty, two-thirds of the Senators present not having
pronounced him guilty, the Senate adjudges that the respondent,
William Jefferson Clinton, President of the United States, is
not guilty as charged in the second article of impeachment.
The Chair directs judgment to be entered in accordance with
the judgment of the Senate as follows:
The Senate, having tried William Jefferson Clinton,
President of the United States, upon two articles of
impeachment exhibited against him by the House of
Representatives, and two-thirds of the Senators present not
having found him guilty of the charges contained therein: it
is, therefore, ordered and adjudged that the said William
Jefferson Clinton be, and he is hereby, acquitted of the
charges in the said articles.
The Chair recognizes the majority leader.
COMMUNICATION TO THE SECRETARY OF STATE AND TO THE HOUSE OF
REPRESENTATIVES
Mr. LOTT. Mr. Chief Justice, there is an order at the desk.
The CHIEF JUSTICE. The clerk will read the order.
The legislative clerk read as follows:
Ordered, that the Secretary be directed to communicate to
the Secretary of State, as provided by Rule XXIII of the Rules
of Procedure and Practice in the Senate when sitting on
impeachment trials, and also to the House of Representatives,
the judgment of the Senate in the case of William Jefferson
Clinton, and transmit a certified copy of the judgment to each.
The CHIEF JUSTICE. Without objection, the order will be
entered.
STATEMENT BY THE CHIEF JUSTICE OF THE UNITED STATES ON THE SENATE TRIAL
The CHIEF JUSTICE. The Chair wishes to make a brief
statement, without objection, I trust.
[Laughter.]
More than a month ago, I first came to preside over the
Senate sitting as the Court of Impeachment. I was a stranger to
the great majority of you. I underwent the sort of culture
shock that naturally occurs when one moves from the very
structured environment of the Supreme Court to what I shall
call, for want of a better phrase, the more free-form
environment of the Senate. [Laughter.]
I leave you now a wiser but not a sadder man. I have been
impressed by the manner in which the majority leader and the
minority leader have agreed on procedural rules in spite of the
differences that separate their two parties on matters of
substance.
I have been impressed by the quality of the debate in
closed session on the entire question of impeachment as
provided for under the Constitution. Agreed-upon procedures for
airing substantive divisions must be the hallmark of any great
deliberative body.
Our work as a Court of Impeachment is now done. I leave you
with the hope that our several paths may cross again under
happier circumstances.
The majority leader.
Mr. LOTT. Mr. Chief Justice, we thank you for your
comments.
EXPRESSION OF GRATITUDE TO THE CHIEF JUSTICE OF THE UNITED STATES
Mr. LOTT. I send a resolution to the desk.
The CHIEF JUSTICE. The clerk will read the resolution.
The legislative clerk read as follows:
A resolution (S. Res. 37) to express gratitude for the
service of the Chief Justice of the United States as Presiding
Officer during the impeachment trial.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent the
Senate proceed to the immediate consideration of S. Res. 37
introduced earlier today by Senator Lott and Senator Daschle.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the resolution be agreed to, the motion to reconsider be laid
upon the table, and any statements that Senators wish to make
on this resolution be printed at this point in the Record.
The CHIEF JUSTICE. Without objection, it is so ordered.
The resolution (S. Res. 37) was agreed to.
The preamble was agreed to.
The resolution, with its preamble, reads as follows:
S. Res. 37
Whereas Article I, section 3, clause 6 of the Constitution of the
United States provides that, when the President of the United States is
tried on articles of impeachment, the Chief Justice of the United
States shall preside over the Senate;
Whereas, pursuant to Rule IV of the Rules of Procedure and Practice
in the Senate When Sitting on Impeachment Trials, on January 6, 1999,
the Senate notified William H. Rehnquist, Chief Justice of the United
States, of the time and place fixed for consideration of the articles
of impeachment against William Jefferson Clinton, President of the
United States, and requested him to attend;
Whereas, in the intervening days since January 7, 1999, Chief
Justice Rehnquist has presided over the Senate, when sitting on the
trial of the articles of impeachment, for long hours over many days;
Whereas Chief Justice Rehnquist, in presiding over the Senate, has
exhibited extraordinary qualities of fairness, patience, equanimity,
and wisdom;
Whereas, by his manner of presiding over the Senate, Chief Justice
Rehnquist has contributed greatly to the Senate's conduct of fair,
impartial, and dignified proceedings in the trial of the articles of
impeachment;
Whereas the Senate and the Nation are indebted to Chief Justice
Rehnquist for his distinguished and valued service in fulfilling his
constitutional duty to preside over the Senate in the trial of the
articles of impeachment: Now, therefore, be it
Resolved, That the Senate expresses its profound gratitude to
William H. Rehnquist, Chief Justice of the United States, for his
distinguished service in presiding over the Senate, while sitting on
the trial of the articles of impeachment against William Jefferson
Clinton, President of the United States.
Sec. 2. The Secretary shall notify the Chief Justice of the United
States of this resolution.
Mr. LOTT. Mr. Chief Justice, on behalf of myself and the
entire U.S. Senate, we offer you our thanks and the gratitude
of the American people for your service to the Nation and to
this institution throughout this Impeachment Court.
As our Presiding Officer during most of the last 5 weeks,
you have brought to our proceedings a gentle dignity and an
unfailing sense of purpose and sometimes a sense of humor.
The majority leader realized when it was time to take a
break and not to take a break when the Chief Justice said let's
go forward.
By placing duty above personal convenience and many other
considerations, you have taught a lesson in leadership. Your
presence in the chair of the President of the Senate, following
the directives of our Constitution, gave comity to this Chamber
and assurance to the Nation. I would like to close with our
traditional Mississippi parting: Y'all come back soon--I hope
that is not taken the wrong way--but not for an occasion such
as this one.
So instead, as you return to your work on the Court in the
great marble temple of the law right across the lawn from this
Capitol, we salute you, sir, with renewed appreciation and
esteem for a good friend and good neighbor.
Presentation of the Golden Gavel Award
Now, Mr. Chief Justice, if the Democratic leader will join
me, we have a small token of our appreciation. We have a
tradition in the Senate that after you have presided over the
Senate for 100 hours, we present you with the Golden Gavel
Award. I am not sure it quite reached 100 hours, but it is
close enough.
The CHIEF JUSTICE. It seemed like it.
[Applause, Senators rising.]
Mrs. HUTCHISON. Mr. President, I wish to add my thanks to
the Chief Justice for his untiring efforts throughout the
impeachment trial and to commend him for his dignity, fairness,
and humor.
Mr. KYL. I add my expression of appreciation to the Chief
Justice and the officers of the court who had a role in this
proceeding--the House managers, the counsel for the White
House, and Independent Counsel Kenneth Starr--for their
honorable service.
Unanimous Consent Agreement
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that
the February 5, 1999, affidavit of Mr. Christopher Hitchens;
the February 7, 1999, affidavit of Ms. Carol Blue; and the
affidavit of Mr. R. Scott Armstrong be admitted into evidence
in this proceeding and the full written transcripts of the
depositions taken pursuant to S. Res. 30 be included in the
public record of the trial. This matter has been cleared on
both sides of the aisle.
The CHIEF JUSTICE. Without objection, it is so ordered.
ADJOURNMENT SINE DIE OF THE COURT OF IMPEACHMENT
Mr. LOTT. Now, Mr. Chief Justice, I move that the Senate,
sitting as a Court of Impeachment on the articles exhibited
against William Jefferson Clinton, adjourn sine die.
The motion was agreed to and, at 12:43 p.m., the Senate,
sitting as a Court of Impeachment, adjourned sine die.
------
Escorting of the Chief Justice
Mr. LOTT. The committee will go to the podium to escort the
Chief Justice from the Chamber.
Whereupon, the Committee of Escort: Mr. Thurmond, Mr. Roth,
Mr. Domenici, Mr. Sarbanes, Mr. Moynihan, and Mrs. Lincoln,
escorted the Chief Justice from the Chamber.
The PRESIDING OFFICER (Mr. Enzi). The Sergeant at Arms will
escort the House managers out of the Senate Chamber.
Whereupon, the Sergeant at Arms escorted the House managers
from the Chamber.
Mr. LOTT addressed the Chair.
The PRESIDING OFFICER. The Senate will please come to
order. The majority leader.
Mr. LOTT. Mr. President--I almost called you Mr. Chief
Justice; I have to get used to going back to ``Mr.
President''--before Senator Feinstein is recognized, I must
take just a moment further to recognize a few individuals, and
I know Senator Daschle would like to do that. In addition to
the Chief Justice and his assistants who were here throughout--
--
Mrs. HUTCHISON. Mr. President, I believe the White House
attorneys should have the same privilege of being escorted out.
Mr. LOTT. I think we will ask Senator Nickles to handle
that. [Laughter.]
The PRESIDING OFFICER. The White House counsel will be
escorted from the Chamber.
Whereupon, White House counsel were escorted from the
Chamber.
THANKING SENATE STAFF
Mr. LOTT. Mr. President, if I could resume, I thank the
assistants who came with the Chief Justice from the Supreme
Court. I thank the Secretary of the Senate, Gary Sisco; the
Sergeant at Arms, Jim Ziglar; and the Deputy Sergeant at Arms,
Loretta Symms, who also gave us our instructions--the first
time in history, I am sure, that a woman called the Senate to
order.
I would like to thank the secretary of the majority,
Elizabeth Letchworth; counsel of the Senate, Tom Griffith, and
deputy Morgan Frankel, our special impeachment counsel, Mike
Wallace; my chief of staff, Dave Hoppe--who has just been
tremendous and worked untold hours--and also all of our
assistants at the desk--and especially our friend Scott Bates--
for their wonderful work. I want the Record to reflect how much
we appreciate the dedication and the long hours, the patience,
and the competence of all these staff members.
I would like to yield to Senator Daschle for his comments
in this area.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Mr. President, I know I speak for all of my
colleagues on this side of the aisle, sharing the expressions
of gratitude that Senator Lott has just articulated for all of
our staff. They have done a remarkable job. He mentioned all
those who work for all of us. Let me mention a couple of people
who work for those of us on this side: Bob Bauer, Bill Corr,
Pete Rouse, Marty Paone, and so many people who were
particularly responsible for the fact that we were able to
conduct our work so effectively throughout this very difficult
challenge.
So on behalf of the Democratic Caucus, we join with Senator
Lott in expressing our deep sense of gratitude for the great,
great job that they have done in these difficult weeks that we
have now concluded.
I yield the floor.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator
from Rhode Island.
APPRECIATION TO THE LEADERSHIP
Mr. CHAFEE. I wonder if this isn't an appropriate time to
express our appreciation to our two leaders for guiding us
through these very difficult times.
[Applause, Senators rising.]
The PRESIDING OFFICER. The Chair recognizes the Senator
from California.
RESOLUTION OF CENSURE
Mrs. FEINSTEIN. Mr. President, I move to proceed to my
censure resolution which is at the desk.
The text of the motion reads as follows:
I move to suspend the following:
Rule VII, paragraph 2 the phrase ``upon the calendar'',
and;
Rule VIII, paragraph 2 the phrase ``during the first two
hours of a new legislative day''.
In order to permit a motion to proceed to a censure
resolution, to be introduced on the day of the motion to
proceed, notwithstanding the fact that it is not on the
calendar of business.
Mr. GRAMM addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, I have to object. This resolution
is not on the Calendar. Therefore, it is not in order to
present it to the Senate.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, in light of that objection,
I move to suspend the rules, the notice of which I printed in
the Record on Monday, February 8, in order to permit my motion
to proceed.
Mr. GRAMM addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, I send a motion to the desk, a
motion to indefinitely postpone the consideration of the
Feinstein motion.
The PRESIDING OFFICER. The clerk will report the motion.
Mr. GRAMM. Mr. President, I ask that reading of the motion
be dispensed with, and I ask for the yeas and nays.
The PRESIDING OFFICER. Without objection, it is so ordered.
Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the
motion of the Senator from Texas, Mr. Gramm. The yeas and nays
have been ordered. The clerk will call the roll.
The yeas and nays resulted--yeas 43, nays 56, as follows:
[Rollcall Vote No. 19 Leg.]
YEAS--43
Allard
Ashcroft
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Cochran
Coverdell
Craig
Crapo
DeWine
Enzi
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Inhofe
Kyl
Lott
Mack
McCain
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith Bob
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--56
Abraham
Akaka
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Bryan
Chafee
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Gorton
Graham
Harkin
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
McConnell
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Roth
Sarbanes
Schumer
Smith Gordon H
Snowe
Torricelli
Wellstone
Wyden
NOT VOTING--1
Domenici
The PRESIDING OFFICER (Mr. Inhofe). On this vote, the yeas
are 43, the nays are 56. Two-thirds of the Senators not having
voted in the negative, the motion to suspend is withdrawn and
the Gramm point of order is sustained. The Feinstein motion to
proceed falls.
CENSURE RESOLUTION OF PRESIDENT WILLIAM JEFFERSON CLINTON
Mrs. FEINSTEIN. Mr. President, I just want to point out to
everyone who is interested that a censure resolution has been
entered at the desk. It has 38 cosponsors.
During these trying days, the question has been asked of
many of us: ``What will we tell our children about this sordid
period in our Nation's history?''
Members of the Senate, I had hoped to be able to tell my
granddaughter and, indeed, the rest of our Nation, that the
U.S. Senate had come together in bipartisan fellowship to
approve a censure resolution that would deliver a clear message
that the behavior of President William Jefferson Clinton has
been inappropriate, intolerable, and unacceptable.
Unfortunately, some in this body have forestalled our
ability to bring such a resolution to the floor of the Senate
for a vote. This I regret deeply.
There are moments in history when we are able to rise up
against the forces driving us apart and come together with a
united purpose. I believe that the censure resolution provided
us with just such an opportunity.
While not a cure-all, the resolution is a way to share with
our children and the rest of our nation our findings, our
sentiments, our belief that the actions of the President are a
violation of the trust of the American people and have brought
shame and dishonor upon the Presidency and the man.
But as has been made clear, those of us who truly believe a
strong censure is the appropriate resolution in this case are
being prevented from bringing it to the floor of this Senate
for a vote.
The main co-sponsor is the Senator from Utah, Mr. Robert
Bennett. In all, it is co-sponsored by 36 Senators--over one-
third of this Senate.
The words of the resolution were strong, but they are
fitting words and I believe a bipartisan majority of the Senate
would be prepared to vote for this censure resolution if it
were permitted to come to a vote today.
Over the past few weeks, I have worked very closely with a
large number of Senators to develop a bipartisan resolution,
largely because I felt it so important that anyone who looks at
this shabby episode of American history understands that while
one may not vote to convict and remove a President, one can
have profound dismay and concern about the misconduct that was
inherent in the articles of impeachment.
That is why I regret deeply that some have seen fit to
prevent us from voting on a censure resolution.
Because that cannot happen today, I have joined with the
cosponsors of this resolution to formally present it to the
Senate and record it in the Congressional Record, making clear
for all time the strong censure of this President and
condemnation of his actions by at least one-third of the U.S.
Senate.
Earlier today, I voted against conviction and removal of
the President on both articles of impeachment. I did not
believe the House managers established beyond a reasonable
doubt that this President is guilty of perjury and obstruction
of justice.
Although I deplore the circumstances that have brought us
to this point, I do not believe they present a clear and
present danger to the functioning of our government, and
therefore this President, who has been a good President for the
people of the United States, should not be convicted and
removed from office.
However, I feel very strongly and sincerely that the
acquittal of the President on the articles of impeachment
should not be the Senate's last word on the President's
conduct, and that without further action such as a resolution
of censure, the wrong message about the President's actions and
the Senate's views thereon will be sent to the country.
One of the most worthwhile experiences of my Senate career
has been listening to the remarks of the Senators over the past
three days on the floor of the U.S. Senate. Each one gave
substantial deliberation, serious thought and research, and
tried his or her level best to maintain their oath of
impartiality.
It should be clear that this was not an easy time. It
should be clear that everyone in the Senate at every minute of
every day wished this were not happening. But we found
ourselves caught up in a constitutional requirement that gave
us little choice.
I hope we come out of this with a deeper understanding of
the divisions and polarization which all of this has caused,
and that every effort can be made, not only by our leadership
but by every Member of the Senate in every issue that comes
before us to seek out a bipartisanship and to work together to
solve the problems facing our Nation.
A good start in this process would have been to have
allowed a vote on the censure resolution. I hope that when we
return from the President's Day recess, we will do better.
I want to clear up once and for all the intent behind our
censure resolution.
The resolution does not express legal conclusions in the
court of impeachment. Rather, it is a legislative measure,
expressing our conclusions regarding the President's conduct.
The legal conclusions to be made in this case, if any, will
be left to a court of law. Our intent is not to bind or
influence the court one way or another, for good or ill, in
making any determinations which it may about the President's
conduct.
Instead, our purpose is to speak to the moral ramifications
of the President's conduct and to the message that those
actions send to the people of our nation, especially its youth.
While the President's actions do not constitute a
fundamental threat to the nation, neither were they at all
acceptable. The President's conduct was both willful and wrong;
clearly, by any standard, his behavior is indefensible.
These actions demeaned the Office of the President,
violated the trust of the American people, and brought shame
and dishonor upon President Clinton.
Let me speak for a moment about the process which we have
gone through in developing the language. I began the process
when I started to doubt whether the President's conduct rose to
the level of a high crime or misdemeanor for which he should be
removed from office.
Senator Herb Kohl was an early partner in this effort, and
he and his staff provided valuable input.
As we developed the language further, I sounded out more of
my colleagues, on both sides of the aisle, on the issue. I was
fortunate enough to have Senator Bennett join me as the lead
Republican co-sponsor. Senator Bennett has been a stalwart
partner in this effort, and it has been a real pleasure working
with him.
Many senators offered input regarding the specific language
of the resolution, and we have incorporated virtually every
suggestion made.
Senators Lincoln, Snowe, Levin, Jeffords, and Schumer, for
instance, all have left their imprint upon this text, as has
Senator Moynihan, who was appointed by Senator Daschle to join
Senator Kohl and myself as a Democratic task force on censure.
In the process of developing this language and striving for
a bipartisanship, we have gone through some 25 drafts of the
resolution. We believe that the text before you today is that
which can obtain the most support from the most senators, of
both parties.
As a result of these efforts, I am very pleased that we
have been joined by a very significant number of co-sponsors
from both sides of the aisle. These co-sponsors run the
ideological gamut from liberal to moderate to conservative. The
breadth of these co-sponsors, I believe, represents the
widespread consensus that the President's actions merit serious
condemnation.
Let me now discuss the ample historical precedents for this
censure resolution.
Censure is an extraordinary measure that Congress has used
sparingly over the past 200 years.
Censure is rare because it is such a powerful expression of
Congressional criticism. In a censure resolution, a House of
Congress publicly states its collective view that an individual
has acted beyond the bounds of acceptable professional conduct.
A censure records for history the major misdoings of public men
and women.
Over the past 200 years, the House and Senate have
initiated censure proceedings against Executive Branch
officials on at least 13 different occasions.
Three times a House of Congress has adopted measures that
could be described as a censure of a President. In 1834, the
Senate censured President Andrew Jackson. Twice the House has
adopted statements criticizing presidents--in the cases of John
Tyler and James Buchanan.
Censuring President Clinton would be consistent with
historical use of this rare, but powerful, Congressional power.
By far the most famous censure case of a sitting President
involved Andrew Jackson.
President Jackson feuded with Congress over the
establishment of a Bank of the United States.
First, in 1832, he vetoed the rechartering of the Bank of
the United States on the grounds that it was unconstitutional,
elitist, and had failed in establishing a sound currency.
Second, Jackson directed the government to withdraw its
funds from the Bank. When his Treasury Secretary protested the
withdrawal, Jackson removed him from his position.
On March 28, 1834, the Senate voted to censure President
Jackson by a partisan vote of 26-20.
The resolution stated:
Resolved, That the President, in the last executive
proceedings in relation to the public revenue, has assumed upon
himself authority and power not conferred by the Constitution
and laws, but in derogation of both.
The censure resolution expressed more than idle words. It
dealt Jackson a painful blow in the arena of public opinion and
in history.
Soon after the vote, Jackson wrote to the Senate
challenging its action. He noted that the Senate resolution was
``an imputation upon my private as well as public character.''
This censure was such a powerful condemnation of President
Jackson's actions that his supporters led the Senate to revisit
the issue several years later. On January 14, 1837, the Senate
voted to expunge the censure resolution from the record by a
vote of 24-19.
The House of Representatives has adopted two other
statements that can be construed as censure motions against a
President.
In 1841, John Tyler assumed the Presidency upon the death
of President William Henry Harrison. In contrast to President
Harrison, whose Whig views coincided with views of the majority
of Congress, Tyler espoused States rights.
Tyler aroused the anger of Congress by vetoing Whig-
sponsored bills related to tariffs and the creation of a
national bank. Exasperated members of the House of
Representatives finally decided to publicly rebuke the
President.
A select committee drafted a report criticizing the
President for:
``Gross abuse of constitutional power and bold assumptions
of powers never vested in him by any law''; for having
``assumed the whole Legislative power to himself, and levying
millions of money upon the people, without any authority of
law''; and for the ``abusive exercise of the constitutional
power of the President to arrest the action of Congress upon
measures vital to the welfare of the people.''
On August 17, 1842, the House passed this select Committee
report.
Along with his Secretary of the Navy, President Buchanan
was implicated in a financial scandal. There were accusations
of ``kickbacks'' and the granting of government contracts to
political supporters.
On June 13, 1860 the House of Representatives voted 106-61
in favor of ``censuring'' the Secretary of the Navy and stating
that President Buchanan's conduct deserved its ``reproof.''
The resolution stated:
Resolved, That the President and the Secretary of the Navy,
by receiving and considering the party relations of bidders for
contracts and the effect of awarding contracts upon pending
elections, have set an example dangerous to the public safety,
and deserving the reproof of this House.
Other executive officials: At least three secretaries of
cabinet departments and one ambassador have also been censured.
These cases include:
(1) Secretary of the Navy Isaac Toucey, 1860--On June 13,
1860, the House of Representatives passed a resolution
censuring Secretary Toucey in the same ``kickback'' and bribery
scandal that led to the ``reproof'' of President Buchanan.
(2) Secretary of War Simon Cameron, 1862--In another
corruption scandal, the House passed a censure resolution
against Secretary of War Cameron for embezzlement and for
entrusting public money to his lieutenant, Alexander Cummings.
Mr. Cummings allegedly spent $21,000 of government funds on
personal items like straw hats, linen pantaloons, scotch ale,
and herring.
(3) Attorney General, A.H. Garland, 1886--On March 24,
1886, the Senate passed a resolution of ``condemnation'' of the
Attorney General for refusing to turn over government papers
regarding the removal of a District Attorney from Office.
(4) Ambassador Thomas Bayard, 1896--On March 20, 1896 the
House of Representatives considered a resolution condemning and
censuring Ambassador Bayard for diplomatic improprieties. He
was charged with making partisan remarks to British audiences.
Congress has also used censure to condemn the conduct of
its own Members. Nine Senators and 22 Members of the House have
been censured.
Indeed, many Members of this body personally know former
Senators who have been censured. To those who argue that
censure is ``a wet noodle across the wrist,'' I would
respectfully request that they ask their colleagues how these
former Senators felt about being censured. I am confident,
because I have had some of these conversations myself, that
they would find that censure was felt deeply and was a very
significant stain upon their reputations and legacy.
In sum, censure is a powerful tool used very sparingly by
Congress to condemn unacceptable conduct. Congress has
initiated censure proceedings in policy disputes, but it has
also criticized executive branch officials in the case of
President Buchanan, Navy Secretary Welles, and President Nixon
for personal misconduct.
So to those who argue that passing this censure would
establish a precedent for the future where Presidents and
cabinet officials could be censured, I hope this discussion has
made it clear: that precedent has already been set.
In this bipartisan censure, we provided the Senate with a
real opportunity to achieve a strong, unifying, bipartisan
conclusion to this whole tawdry, exhausting, and divisive
controversy.
The House's actions were marred with partisanship. Indeed,
one example of this was the action of the House leadership to
prevent a censure resolution from even being considered on the
House floor.
The Senate started its proceedings on a high note, when we
came together to agree unanimously, across party lines, upon
procedures for the trial. Passing our censure resolution by a
strong, bipartisan vote would represent an appropriate
``bookend'' to this bipartisan beginning and would stand this
Senate well in the annals of history.
Moreover, it would put the proper historical perspective
upon the Senate's actions and determinations, which should not
be read as a vindication of the President.
I believe that passing this censure on a bipartisan basis
would bring a real closure to the process, and would help to
heal the divisions between the parties which were created
during these proceedings, so that we can move on to work
together to address the real problems confronting the American
people, such as saving social security, improving education,
and continuing the fight to reduce crime.
It is time that we move on to these other matters of
significance to our people, to reconcile differences between
and within the branches of government, and to work together--
across party lines--for the benefit of the American people.
I ask unanimous consent that a list of cosponsors and the
text of the resolution be printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Cosponsors
Mrs. Feinstein, Mr. Bennett, Mr. Moynihan, Mr. Chafee, Mr. Kohl,
Mr. Jeffords, Mr. Lieberman, Mr. Smith of Oregon, Mr. Daschle, Ms.
Snowe, Mr. Reid, Mr. Gorton, Mr. Bryan, Mr. McConnell, Mr. Cleland, Mr.
Domenici, Mr. Torricelli, Mr. Campbell, Mr. Wyden, Mrs. Lincoln, Mr.
Kerry, Mr. Kerrey, Mr. Schumer, Mr. Durbin, Mrs. Murray, Mr. Wellstone,
Mr. Breaux, Ms. Mikulski, Mr. Dorgan, Mr. Baucus, Mr. Reed, Ms.
Landrieu, Mr. Kennedy, Mr. Levin, Mr. Rockefeller, Mr. Robb, Mr.
Inouye, and Mr. Akaka.
______
Resolution of Censure
Whereas William Jefferson Clinton, President of the United States,
engaged in an inappropriate relationship with a subordinate employee in
the White House, which was shameful, reckless and indefensible;
Whereas William Jefferson Clinton, President of the United States,
deliberately misled and deceived the American people, and people in all
branches of the United States government;
Whereas William Jefferson Clinton, President of the United States,
gave false or misleading testimony and his actions have had the effect
of impeding 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
actions in a court of law like any other citizen;
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 does condemn his
wrongful conduct in the strongest terms; and now be it
Further resolved, That the United States Senate recognizes the
historic gravity of this bipartisan resolution, and trusts and urges
that future congresses will recognize the importance of allowing this
bipartisan statement of censure and condemnation to remain intact for
all time; and be it
Further resolved, That the Senate now move on to other matters of
significance to our people, to reconcile differences between and within
the branches of government, and to work together--across party lines--
for the benefit of the American people.
censure
Ms. SNOWE. Mr. President, now that we have come to the end
of the process required by the Constitution, I believe we have
arrived at an appropriate time to consider a measure required
by the President's conduct.
I rise in support of censure because while I do not find
that the President's behavior constitutes high crimes and
misdemeanors requiring removal, I do believe that it compels us
to record for history our recognition of the damage we all
acknowledge he has inflicted upon the Office of the Presidency
and the Nation.
Acquittal must not be the last word. And while I have felt
that it would have been more appropriate for the Senate to
issue findings of fact in the impeachment case against the
President, I am now prepared to support censure so that there
is no mixed message for posterity about what the Senate thinks
of the President's actions.
As I said yesterday, the President's behavior is
indefensible, and I for one have no interest in seeing another
shameless ``Rose Garden Jubilee'' after today's vote by the
Court of Impeachment. Acquittal is not exoneration. Nothing we
do here today in any way absolves the President's
responsibility for the harm he has inflicted--and the President
must know this.
Indeed, this has been a sordid chapter in the history of
the Presidency, and it deserves to be closed with a stern
warning and a strongly worded rebuke that will leave no doubt
to future generations that this process was not simply much ado
about nothing; it was, in fact, about something very
important--the sanctity of public service.
That's why I worked with Senators Feinstein and Bennett to
include language expressing the will of this Senate that this
resolution not be revoked by a future Congress. I also want to
thank them for their willingness to include language that makes
clear the Senate believes the President should be treated as
any other citizen facing criminal allegations once he leaves
office in 23 months.
The fact is, even while this body has acquitted the
President on articles of impeachment, the framers provided for
an additional remedy for his conduct in standard criminal
court. Why? Because they had known a country where some men
were above the law and some below. They were determined to
create a Nation where the level of justice served was not
proportional to a person's pocketbook, social rank, or
political power.
I believe acquittal, though the proper outcome, by itself
could present a skewed picture of the Senate's findings, and
runs the risk that the President will claim exoneration for his
actions. Such a claim, evidence of which is already apparent,
is quite simply and obviously wrong.
The President may not have committed high crimes and
misdemeanors, but what he has done--in my mind including
unlawfully influencing a potential witness--deserves a formal
rebuke by the Senate. Censure would be an appropriate and
constitutionally permissible way to do this.
For a President who from the very beginning promised the
most ethical administration any of us would ever see, censure
would be a well-deserved legacy of a promise broken and a
Presidency sullied. I will vote for this censure motion and I
urge my colleagues to do likewise.
CENSURE RESOLUTION
Mr. ASHCROFT. Mr. President, the debate we will be having
in the Senate is on whether to suspend the rules of the Senate
to consider a resolution censuring the President's conduct.
A motion will be made to indefinitely postpone the motion
to suspend the rules. These votes will occur before Senators
have the opportunity to amend the resolution censuring the
President's conduct.
I take the floor of the Senate to make clear that I am
opposed to a censure resolution of President Clinton.
The Impeachment Trial of President William Jefferson
Clinton is over. The Senate has faithfully discharged its
constitutional obligation by serving as impartial jurors of the
articles of impeachment approved by a bipartisan majority of
the U.S. House of Representatives.
The Senate has rendered its verdict and has found the
President not guilty as charged. The consequence of this action
by the Senate is to keep the President in office where he is to
fully and faithfully discharge the constitutional duties of his
office.
The trial is over. It is time for the Senate to focus on
the national legislative agenda.
On this last point, I chose my words carefully. I did not
say it is time for the Senate to turn to the people's business.
Some have said we should not have had the trial or should
have adjourned the trial much earlier so that we could turn to
the people's business.
I reject that notion. I firmly believe that conducting the
trial was doing the people's business.
But the truth is the trial is over. I do not see any place
for the pending resolution censuring the President. It is not
the business of the Senate to punish President Clinton.
As Senator Byrd has concluded, censure, unlike impeachment,
is ``extra-constitutional.'' The Constitution empowers the
Senate to try a President impeached by the House and remove him
if 67 Senators agree. The Constitution does not empower the
Senate to punish a President in the absence of 67 votes to
remove.
The impeachment trial is over. The Senate should move on
and leave President Clinton alone.
The Constitution recognizes that if a President cannot be
removed through impeachment, he should not be weakened by
censure. Although the Senate passes sense of the Senate
resolutions on many subjects, censure is different because the
Constitution requires a two-thirds vote before the Senate can
discipline the President and requires removal upon conviction
for impeachable offenses. Censure is an effort to end-run these
constitutional requirements.
One final problem is that any censure resolution will have
to be weak. Even proponents of censure concede that a censure
resolution that actually punished the President would be an
unconstitutional bill of attainder. Any censure that is
consistent with the bill of attainder clause is too weak to be
worth doing.
The highest form of censure the Constitution allows is
impeachment by the House. The failure to convict the President
will not erase that action by the House. It is time for the
Senate to move on.
If the effort to suspend the rules passes, and the text of
the censure resolution is before the Senate and is amendable, I
will seek recognition to offer the following substitute:
After the word ``Resolved'' strike everything and insert
the following:
``That the United States Senate at the earliest opportunity will
consider and have final votes on legislation favorably reported by its
committees that--
(1) reduces taxes so that Americans no longer pay record high
levels of federal income taxes;
(2) prohibits the financial surplus in the Social Security Trust
Funds from financing additional deficit spending in the operating
budget of the United States Government;
(3) increases funds and flexibility for programs that local school
districts and their parents, teachers and principals believe will
enhance teaching and learning;
(4) offers comprehensive responses to juvenile justice needs and
criminal drug abuse, including increased penalties for adults who use
minors in the commission of crimes, increased penalties for drug
trafficking, and greater resources for local law enforcement agencies
to stop methamphetamine trafficking.
(5) improves military pay to reduce sharp declines in attracting
new and keeping well-qualified solders in the all-volunteer Armed
Forces.''
This substitute resolution speaks for itself. This
resolution sets the Senate on the right course for the Senate
to accomplish the legislative priorities of this nation.
These priorities include:
Congress this year should direct the budget surplus to
where it belongs, and that is to the people whose hard work
produced the surplus.
That means Congress should cut taxes. Americans should no
longer pay record high levels of federal income taxes.
The average household paid 25 percent of its income in
taxes--Federal, State, and local--30 percent of every
additional dollar earned by a four-person median income
household of $55,000 will go to pay taxes.
The typical American family spends more money on taxes than
on food, clothing, and shelter combined. Each year, Americans
work 4 months and 10 days just to pay their taxes. The tax
burden is getting worse, not better. For the past 5 years, tax
payments have grown faster than salaries. Total federal taxes
in 1997 were the highest since World War II.
Second, Congress should protect Social Security.
The best action we can take now to protect the economic
security of tomorrow's retirees is to protect current surpluses
from government raiding.
Using these surpluses to pay down our debt will put our
country in the best possible financial position to meet our
future obligations.
Third, we should improve education by increasing funds and
flexibility for programs that local school districts and their
parents, teachers, and principals believe will enhance teaching
and learning.
The Department of Education requires over 48.6 million
hours worth of paperwork to receive federal dollars. This
bureaucratic maze takes up to 35% of every federal education
dollar.
Local school districts could find far better uses of the
$10-$12 billion Washington spends. With direct funding, local
schools could deploy resources to areas they deem most crucial
for their students, such as hiring new teachers, raising
teacher salaries, buying new textbooks or new computers
Fourth, Congress must fight crime and drug abuse.
While in the last few years the violent crime rate has
declined, it remains at levels that are far too high. In 1960,
159 violent crimes per 100,000 inhabitants were reported; in
1997, 611 were reported. In short, violent crime has quadrupled
since 1960.
Drug abuse, especially use of methamphetamines, is also at
dangerous levels. Public health and law enforcement officials
believe that meth is more dangerous and addictive than cocaine
and heroin. Communities are being devastated and the problem is
growing exponentially. In 1994, DEA agents in Missouri seized
14 clandestine meth labs. Last year, they seized 421 labs.
Meth use is dangerous, threatens our children, and causes
users to commit other crimes. Among 12th graders, the use of
ice, a smokeable form of meth, has risen 60 percent since 1992.
Meth-related emergency room incidents are up 63 percent over
this same period.
Fifth, Congress should improve military pay to reduce sharp
declines in attracting new and keeping well-qualified soldiers
in the all-volunteer Armed Forces.
1999 marks the 14th straight year of decline in real
dollars spent on our national defense. The number of active
duty personnel is down 30% since 1991. Despite these
reductions, the military is being asked to do more than it did
during the Cold War.
In writing these principles, I strived for bipartisan
agreement. I believe many, if not all, of these principles have
been articulated as priorities on both sides of the aisle.
I did not include my own proposals for accomplishing these
objectives. The details of these principles can and should be
worked out by the committees of the Senate and then by the full
Senate.
PRESIDENT CLINTON SHOULD FEEL THE DISDAIN OF THE SENATE
Mr. CHAFEE. Mr. President, the Senate has been held in the
grip of the impeachment trial for the past 6 weeks, the House
has been involved in the impeachment process for the past 6
months, and the Nation has been divided over the actions and
fate of the President for more than a year. We were not
compelled to undertake this nearly unprecedented Constitutional
remedy by partisanship, as some at the White House have
suggested. We were driven to this point by Bill Clinton and
Bill Clinton alone.
Although I voted to acquit the President on the charges, I
have no doubt that if I served in the House, I would have voted
to impeach him.
Chairman Hyde offered the White House every opportunity to
defend the President, but the White House chose a different
course. They chose to belittle the charges against the
President by suggesting that everyone lies about sex. They
chose to accuse their accusers by attacking the motives and
integrity of the Judiciary Committee Republicans and by
insinuating that Judge Starr is a sex-obsessed prosecutor run
amok. They did not question the evidence on which the
impeachment vote was based.
With that evidence, the House Managers presented a powerful
case against the President. As a result of their presentations,
I am convinced that the President acted to circumvent the law.
The notion that the President of the United States, the number
one citizen of our nation, the man in whom the trust and
respect of the country is meant to rest, would deliberately
maneuver around the laws of the land is reprehensible and
should be condemned.
Alexander Hamilton, in ``The Federalist Papers'' No. 65,
said:
The delicacy and magnitude of a trust, which so deeply
concerns the political reputation and resistance of every man
engaged in the administration of public affairs, speak for
themselves.
President Clinton betrayed that delicate trust. The House
Managers tried to restore it. In the end, the witnesses, all of
whom were sympathetic to or allies of the President, provided
direct evidence that failed to corroborate the House Managers'
case. Removing the President from office in the face of a
conflict between direct and circumstantial evidence, in my
view, would be mistaken. On that basis, I voted to acquit the
President. Nevertheless, the House Managers and all of the
evidence left me convinced that the President acted in a way
that is abominable. By voting for the censure resolution
proposed by Senator Feinstein, the Senate makes clear that it
does not exonerate the President.
CENSURE
Mr. KOHL. Mr. President, during the impeachment trial, it
was the duty of the Senate to look at the facts, look at the
law, look at the Constitution, and make a judgment. We did our
duty.
But now we need to go one step further because neither
acquittal nor conviction is an entirely adequate conclusion to
this sordid matter. We must speak our contempt and
disappointment for the low behavior of our highest elected
official.
We need to speak for the spirit behind our laws, behind
this institution, behind the country. We need to say that the
President's actions and lies were wrong--``shameful, reckless
and indefensible.'' We need to acknowledge that his conduct,
unacceptable for any American, is especially so for the
President of the United States because it ``creates disrespect
for the laws of the land.''
I am proud that all 100 Senators worked together through
this ordeal to do our duty. I am proud that so many of us from
both sides of the aisle worked together to craft this tough
censure resolution.
But I am sorry that a small minority will keep us from also
doing what is honorable and what is right. We need to
officially express our collective disdain for the President's
conduct. It's the only truly appropriate, bipartisan way to
bring closure to this melancholy moment in American history.
When Senator Feinstein and I started talking about a
censure resolution, as early as last December, I had no
certainty that we would come so far and bring so many along.
Her perseverance, hard work and legislative craftsmanship
deserve our praise but our efforts deserve a clean ``up or
down'' vote.
RESOLUTION OF CENSURE
Mr. HOLLINGS. Mr. President, I ask that a draft of a
proposed resolution of censure be printed in the Record.
The material follows:
Resolution of Censure
Whereas William Jefferson Clinton, President of the United States,
engaged in an in appropriate relationship with a subordinate employee
in the White House, which was shameful, reckless and indefensible;
Whereas William Jefferson Clinton, President of the United States,
deliberately misled and deceived the American people, and people in all
branches of the United States Government.
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
actions in a court of law like any other citizen;
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 does condemn his
wrongful conduct in the strongest terms; and now be it further
Resolved, That the United States Senate recognizes the historic
gravity of this resolution, and trusts and urges that future congresses
will recognize the importance of allowing this statement of censure and
condemnation to remain intact for all time; and be it further
Resolved, That the Senate now move on to other matters of
significance to our people, to reconcile differences between and within
the branches of government, and to work together--across party lines--
for the benefit of the American people.
A CALL FOR AN END TO THE POLITICAL WARS
Mr. DASCHLE. Mr. President, today's votes on the articles
of impeachment mark the end of a long and difficult journey.
The story of this impeachment process suggests a number of
lessons on which I expect we will all reflect individually and
collectively for some time.
From the beginning of this process, I objected in the
clearest terms to the President's legal hairsplitting and
attempts to find a legal excuse, or any excuse, for his
deplorable personal conduct. In my view, the President violated
the public trust and brought dishonor to the office he holds.
For that, he will have to answer to the people of this country
and to history.
But it was every Senator's duty to put personal views aside
and render impartial justice, based on constitutional standards
and the evidence before the Senate. In my view, the President's
conduct did not, under our Constitution, warrant his removal
from office. Others, acting on equally sincere motives, reached
a different conclusion.
It is regrettable that something about this process led to
a situation, particularly in Washington, where sincere voices
on both sides were too often drowned out by partisan voices--
again, on both sides. But, if we listen to voices outside the
Nation's capital, the voices of citizens rather than of
partisans, those voices tell us that something has gone
terribly wrong in our public discourse.
Those citizens see the impeachment process not as a solemn
constitutional event, which it assuredly was, but, rather, as
another sad episode in the sorry saga of a bitter, partisan,
and negative political process that runs on the fuel of
scandal. In this sense, to many Americans, the Starr
investigation, and the impeachment process it spawned, were all
too familiar.
To much of the American public, this whole process was a
long-running, 50-million-dollar negative ad built on personal
attacks, the likes of which Americans regret and reject.
I know this belief is shared by thousands of South Dakotans
and millions of Americans who hold widely varying views of what
the outcome of the impeachment proceeding should have been--
conviction or acquittal, removal or continued service by the
President to the conclusion of his term.
What are the elements, the component parts, of this
political process that so many Americans judge to be merely an
ugly spectacle increasingly unworthy of their participation?
What is making Americans so cynical that they are voting in
record-low numbers and tuning out the government meant to serve
them?
Surely they must be concerned about the increased use, and
misuse, of the legal process in our political process. They are
no longer certain they can distinguish the proper application
of the law to address real wrongdoing properly before the
courts from the hijacking of the law to bludgeon political
opponents and extend the battlefield of political attack.
In just 10 years, we have seen the public careers of three
House Speakers, representing both political parties, destroyed
by scandal. As the process has escalated, independent counsel
have pursued members of Presidents' cabinets--of both parties
and then the President of the United States himself.
We have watched what we all acknowledge as ``the politics
of personal destruction'' threaten to devour our democratic
ideals.
We can, and we will, argue the merits of the independent
counsel statute when it comes up for reauthorization this
session. We can, and we will, continue to pursue those who are
corrupt, who use their offices for personal gain, or who
otherwise deserve punishment.
But the law must be preserved as an instrument for the
rendering of justice, not manipulated to serve as another
readily accessible weapon to be used against political
adversaries.
The law should not become a substitute for elections.
Political choices in this country must remain in the hands of
the people of this country, not conveyed to prosecutors and
lawyers.
It is not the law's fault that there has been a hardening
of position and a commitment to win at any cost. To paraphrase
our former colleague Dale Bumpers' now famous declaration in
his presentation to the Senate, ``Sometimes we want to win too
badly.''
It is time for elected officials to ask themselves, ``Does
anyone in this country really feel as though they have been
winners in this seemingly interminable process of
investigation, media spectacle and impeachment controversy?''
I hope we can keep Senator Bumpers' words in mind and honor
each other, with the same degree of commitment that we bring to
our disagreements. I hope we can persuade without spinning;
that we can argue without shouting; that we can dissent without
dividing.
We can be passionate in our beliefs without prosecuting
those who believe differently.
There were no winners in this impeachment process, but
there were plenty of losers. There are good people who have
accumulated thousands of dollars in legal bills as a result of
the years of investigating the President. There are good
people--on both sides of the aisle--whose private lives will be
never be private again. There are people whose reputations have
been battered and beaten.
I hope we can keep those people in mind and call for--
indeed, insist upon--a truce in the political wars. We need now
to think about what we owe ourselves, each other, and the
public as we move--and I hope without further delay--to address
the true agenda of the American people.
HEALING OF THE NATION
Mr. WARNER. Mr. President, I ask the Senate to indulge me
just a few words.
It is a privilege for me to stand in for our distinguished
leader, Mr. Lott. And my remarks also reflect on the
outstanding performance not only by Leader Lott but Leader
Daschle on this historic day of the Senate. Mr. President, I
have just returned, as have most Senators, from responding to
many requests by the media on the grounds of the U.S. Capitol.
I have said that the verdict is in. It has been given by the
Senate. It is now before the Nation and they will be the final
jury, the final arbiter. The sovereignty of this country rests
not in the high office holders, but it is in the hands of the
people. It is for them to decide.
As they approach the decision, I humbly submit to them: Let
us put this chapter in our history, tragic though it may be,
behind us, and that we heal ourselves and unite and go forward.
This is a great and strong Nation. It is a leader of the
world, not only in matters of security for ourselves but
security for others, not only in matters of military security
but in matters of economic security. Our President, by his own
actions, is a weakened President. That strength which for a
while he can no longer give to the Nation must be filled in by
the people--individually and collectively. I think we should
not spend time dwelling on the past. Leave it to the
historians. Let us move forward to the future, heal ourselves,
and strengthen our Nation so we can resume as a leader in the
world. And may God rest his hand on this Senate and its verdict
as being the best for the Nation and for our people.