[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES

                PRESENTATION ON BEHALF OF THE PRESIDENT

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

              IMPEACHMENT INQUIRY PURSUANT TO H. RES. 581:

                PRESENTATION ON BEHALF OF THE PRESIDENT

                               __________

                         DECEMBER 8 AND 9, 1998

                               __________

                             Serial No. 68


         Printed for the use of the Committee on the Judiciary

                              -----------

                     U.S. GOVERNMENT PRINTING OFFICE
53-320 cc                    WASHINGTON : 1998
_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 
                                 20402





                       COMMITTEE ON THE JUDICIARY

                   HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida               CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         RICK BOUCHER, Virginia
LAMAR SMITH, Texas                   JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida           MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina           ZOE LOFGREN, California
BOB GOODLATTE, Virginia              SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana            MAXINE WATERS, California
ED BRYANT, Tennessee                 MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio                   WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia                    ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee        STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas             THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California

                             Majority Staff

         Thomas E. Mooney, Sr., Chief of Staff-General Counsel
          Jon W. Dudas, Deputy General Counsel-Staff Director
         Diana L. Schacht, Deputy Staff Director-Chief Counsel
               Daniel M. Freeman, Parliamentarian-Counsel
       Paul J. McNulty, Director of Communications-Chief Counsel
                    Joseph H. Gibson, Chief Counsel
                         Rick Filkins, Counsel
                       Sharee M. Freeman, Counsel
                       Peter J. Levinson, Counsel
                       John F. Mautz, IV, Counsel
                     William E. Moschella, Counsel
                        Stephen Pinkos, Counsel

George M. Fishman, Chief Counsel     David P. Schippers, Chief 
Mitch Glazier, Chief Counsel             Investigative Counsel
John H. Ladd, Chief Counsel            
Raymond V. Smietanka, Chief Counsel  Susan Bogart, Investigative 
Laura Ann Baxter, Counsel                Counsel
Daniel J. Bryant, Counsel            Robert S. Hoover, Counsel
Cathleen A. Cleaver, Counsel         John C. Kocoras, Counsel
Vince Garlock, Counsel               Berle S. Littmann, Investigator
James W. Harper, Counsel             Stephen P. Lynch, Professional 
Susan Jensen-Conklin, Counsel            Staff Member
Debra K. Laman, Counsel              Charles F. Marino, Counsel
Blaine S. Merritt, Counsel           Jeffrey J. Pavletic, Investigative 
Nicole R. Nason, Counsel                 Counsel
Glenn R. Schmitt, Counsel            Thomas M. Schippers, Investigative 
Jim Y. Wilon, Counsel                    Counsel
                                     Albert F. Tracy, Investigator
                                     Peter J. Wacks, Investigator
                                     Diana L. Woznicki, Investigator

                             Minority Staff

         Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General  Abbe D. Lowell, Minority Chief 
    Counsel                              Investigative Counsel
David G. Lachmann, Counsel           Sampak P. Garg, Investigative 
Cynthia A. R. Martin, Counsel            Counsel
Henry Moniz, Counsel                 Steven F. Reich, Investigative 
Stephanie J. Peters, Counsel             Counsel
Samara T. Ryder, Counsel             Deborah L. Rhode, Investigative 
Brian P. Woolfolk, Counsel               Counsel
                                     Kevin M. Simpson, Investigative 
                                         Counsel
                                     Lis W. Wiehl, Investigative 
                                         Counsel


                            C O N T E N T S

                              ----------                              

                                HEARING

                                                                   Page
December 8, 1998.................................................     1
December 9, 1998.................................................   277

                           OPENING STATEMENTS

Hyde, Hon. Henry J., a Representative in Congress from the State 
  of Illinois, and Chairman, Committee on the Judiciary..........2, 278

                               WITNESSES

Ackerman, Bruce, Sterling Professor of Law and Political Science, 
  Yale University................................................    37
Beer, Samuel H., Eaton Professor of the Science of Government 
  Emeritus, Harvard University...................................    32
Ben-Veniste, Richard, Esquire, Former Assistant U.S. Attorney....   197
Craig, Gregory B., Esq., Assistant to the President and Special 
  Counsel........................................................     6
Davis, Richard J., Esq., Weil, Gotschal & Manges.................   294
Dennis, Edward S.G., Jr., Morgan, Lewis & Bockius................   314
Drinan, Hon. Robert J., S.J., Former Member of Congress from 
  Massachusetts..................................................   125
Hamilton, James Esq., Swidler, Berlin, Shereff & Friedman, 
  Washington, DC.................................................   197
Holtzman, Elizabeth, Former Member of Congress from Massachusetts   118
Katzenbach, Hon. Nicholas, Former Attorney General of the United 
  States.........................................................    14
Noble, Ronald, Esq., Professor of Law, New York University Law 
  School.........................................................   318
Owens, Hon. Wayne, former Member of Congress from Utah...........   131
Ruff, Charles F.C., Counsel to the President.....................   406
Sullivan, Thomas P., Esq., Former U.S. Attorney, Northern 
  District of Illinois...........................................   283
Wilentz, Sean, the Dayton Stockton Professor of History..........    20
Weld, William Hon., Former Governor of Massachusetts.............   327

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Ackerman, Bruce, Sterling Professor of Law and Political Science, 
  Yale University: Prepared statement............................    41
Beer, Samuel H., Eaton Professor of the Science of Government 
  Emeritus, Harvard University: Prepared statement...............    35
Ben-Veniste, Richard, Esq., Former Assistant U.S. Attorney: 
  Prepared statement.............................................   202
Davis, Richard J., Esq., Weil, Gotschal & Manges: Prepared 
  statement......................................................   298
Delahunt, Hon. William D., a Representative in Congress from the 
  State of Massachusetts: Testimony by Kenneth Starr from 
  December 1, 1998 hearing.......................................   374
Dennis, Edward S.G., Jr., Morgan, Lewis & Bockius: Prepared 
  statement......................................................   316
Drinan, Hon. Robert J., S.J., Former Member of Congress from 
  Massachusetts: Prepared statement..............................   127
Canady, Charles T., a Representative in Congress from the State 
  of Florida:
    Letter dated December 7, 1998, from Douglas W. Kmiec.........   109
    Letter dated December 7, 1998, from Harvey C. Mansfield......   105
    Letter dated December 7, 1998, from Griffin B. Bell..........   117
    Letter dated December 9, 1998, from Donald C. Alexander and 
      other materials relating to 1974 inquiry on the tax fraud 
      article of impeachment against President Nixon...........188, 459
    Remarks of Mr. Owens'........................................   134
    Statement by Professor Walter Berns..........................   106
Cannon, Hon. Christopher B., a Representative in Congress from 
  the State of Utah: Documents titled Certificate of Service, and 
  Declaration of Charles F.C. Ruff...............................   475
Craig, Gregory B., Esq., Assistant to the President and Special 
  Counsel: Prepared statement....................................    10
Goodlatte, Hon. Bob, a Representative in Congress from the State 
  of Virginia: An Open Letter to the Members of the United States 
  House of Representatives and the United States Senate..........   510
Holtzman, Elizabeth, Former Member of Congress from 
  Massachusetts: Prepared statement..............................   122
Hamilton, Jim: Prepared statement................................   215
Jackson Lee, Hon. Sheila, a Representative in Congress from the 
  State of Texas: the Constitution of the United States..........   394
Kalzenbach, Hon. Nicholas Former Attorney General of the United 
  States.........................................................    17
McCollum, Hon. Bill, a Representative in Congress from the State 
  of Florida: Congressional Research Service report on the 
  Compilation of Presidential Claims of Executive Privilege from 
  the Kennedy Through the Clinton Administrations................   467
Noble, Ronald, Esq., Professor of Law, New York University Law 
  School: Prepared statement.....................................   323
Owens, Hon. Wayne, Former Member of Congress from Utah: Prepared 
  statement......................................................   134
Sullivan, Thomas P., Esq., Former U.S. Attorney, Northern 
  District of Illinois: Prepared statement.......................   287
Waters, Hon. Maxine, a Representative in Congress from the State 
  of California: Letter dated December 9, 1998 from Alcee L. 
  Hastings.......................................................   518
Weld, William Hon., Former Governor of Massachusetts: Prepared 
  statement......................................................   330


                          IMPEACHMENT INQUIRY:
                       WILLIAM JEFFERSON CLINTON,
                     PRESIDENT OF THE UNITED STATES

                PRESENTATION ON BEHALF OF THE PRESIDENT



         Hearing on Impeachment Inquiry Pursuant to H. Res. 581

                              ----------                              


                       TUESDAY, DECEMBER 8, 1998

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn House Office Building, Hon. Henry J. Hyde 
[chairman of the committee] presiding.
    Present: Representatives Henry J. Hyde, F. James 
Sensenbrenner, Jr., Bill McCollum, George W. Gekas, Howard 
Coble, Lamar S. Smith, Elton Gallegly, Charles T. Canady, Bob 
Inglis, Bob Goodlatte, Stephen E. Buyer, Ed Bryant, Steve 
Chabot, Bob Barr, William L. Jenkins, Asa Hutchinson, Edward A. 
Pease, Christopher B. Cannon, James E. Rogan, Lindsey O. 
Graham, Mary Bono, John Conyers, Jr., Barney Frank, Charles E. 
Schumer, Howard L. Berman, Rick Boucher, Jerrold Nadler, Robert 
C. Scott, Melvin L. Watt, Zoe Lofgren, Sheila Jackson Lee, 
Maxine Waters, Martin T. Meehan, William D. Delahunt, Robert 
Wexler, Steven R. Rothman, and Thomas M. Barrett.
    Majority Staff Present: Thomas E. Mooney, Sr., general 
counsel-chief of staff; Jon W. Dudas, deputy general counsel-
staff director; Diana L. Schacht, deputy staff director-chief 
counsel; Daniel M. Freeman, parliamentarian-counsel; Joseph H. 
Gibson, chief counsel; Rick Filkins, counsel; Sharee M. 
Freeman, counsel; John F. Mautz, IV, counsel; William 
Moschella, counsel; Stephen Pinkos, counsel; Sheila F. Klein, 
executive assistant to general counsel-chief of staff; Annelie 
Weber, executive assistant to deputy general counsel-staff 
director; Samuel F. Stratman, press secretary; Rebecca S. Ward, 
officer manager; James B. Farr, financial clerk; Elizabeth 
Singleton, legislative correspondent; Sharon L. Hammersla, 
computer systems coordinator; Michele Manon, administrative 
assistant; Joseph McDonald, publications clerk; Shawn Friesen, 
staff assistant/clerk; Robert Jones, staff assistant; Ann 
Jemison, receptionist; Michael Connolly, communications 
assistant; Michelle Morgan, press secretary; and Patricia 
Katyoka, research assistant.
    Subcommittee on Commercial and Administrative Law Staff 
Present: Ray Smietanka, chief counsel; and Jim Harper, counsel.
    Subcommittee on the Constitution Staff Present: John H. 
Ladd, chief counsel; and Cathleen A. Cleaver, counsel.
    Subcommittee on Courts and Intellectual Property Staff 
Present: Mitch Glazier, chief counsel; Blaine S. Merritt, 
counsel; Vince Garlock, counsel; and Debra K. Laman.
    Subcommittee on Crime Staff Present: Paul J. McNulty, 
director of communications-chief counsel; Glenn R. Schmitt, 
counsel; Daniel J. Bryant, counsel; and Nicole R. Nason, 
counsel.
    Subcommittee on Immigration and Claims Staff Present: 
George M. Fishman, chief counsel; Laura Ann Baxter, counsel; 
and Jim Y. Wilon, counsel.
    Majority Investigative Staff Present: David P. Schippers, 
chief investigative counsel; Susan Bogart, investigative 
counsel; Thomas M. Schippers, investigative counsel; Jeffrey 
Pavletic, investigative counsel; Charles F. Marino, counsel; 
John C. Kocoras, counsel; Diana L. Woznicki, investigator; 
Peter J. Wacks, investigator; Albert F. Tracy, investigator; 
Berle S. Littmann, investigator; Stephen P. Lynch, professional 
staff member; Nancy Ruggero-Tracy, office manager/coordinator; 
and Patrick O'Sullivan, staff assistant.
    Minority Staff Present: Julian Epstein, minority chief 
counsel-staff director; Perry Apelbaum, minority general 
counsel; Samara T. Ryder counsel; Brian P. Woolfolk, counsel; 
Henry Moniz, counsel; Robert Raben, minority counsel; Stephanie 
Peters, counsel; David Lachmann, counsel; Anita Johnson, 
executive assistant to minority chief counsel-staff director, 
and Dawn Burton, minority clerk.
    Minority Investigative Staff Present: Abbe D. Lowell, 
minority chief investigative counsel; Lis W. Wiehl, 
investigative counsel; Deborah L. Rhodes, investigative 
counsel; Kevin M. Simpson, investigative counsel; Stephen F. 
Reich, investigative counsel; Sampak P. Garg, investigative 
counsel; and Maria Reddick, minority clerk.
    Chairman Hyde. The committee will come to order. A quorum 
being present, and pursuant to notice, the committee will come 
to order for the purpose of conducting an impeachment inquiry 
pursuant to House Resolution 581. Ranking member John Conyers 
and I will make brief opening statements. Without objection, 
all members' and witnesses' written statements will be included 
in the record.
    Now, members should know that while in the past I have been 
liberal with the gavel, because we have many witnesses, I 
intend to adhere strictly to the 5-minute rule. That means 
questions and answers will end after 5 minutes. Members who 
make 4-minute speeches and ask five questions in the final 
minute will not get their questions answered.
    I now recognize myself for purposes of an opening 
statement.
    I have made a commitment to members of this committee, to 
Members of the House, to the President and to the people that I 
will do all I can to ensure that this impeachment inquiry will 
be concluded by the end of the year. I plan on honoring that 
commitment, and today's hearing moves us in that direction.
    Yesterday afternoon, the White House provided us with a 
list of 14 witnesses that it requested this committee to hear. 
I am pleased to accommodate the White House's request. We will 
hear the testimony of all 14 witnesses as well as Special 
Counsel Greg Craig and White House Counsel Charles Ruff.
    Therefore, I would like to set the schedule for the 
remaining Judiciary Committee proceedings. At the request of 
the White House counsel, we have begun today at 10 a.m. and we 
will hear from three panels of witnesses today, one panel 
tomorrow morning, and the testimony of White House Counsel 
Charles Ruff tomorrow afternoon.
    The first panel will be Special Counsel Greg Craig and five 
witnesses who wish to speak about constitutional standards for 
impeachment. Mr. Craig will be recognized for 15 minutes. All 
other panel witnesses will each have 10 minutes to make a 
statement. After the testimony of the witnesses, members will 
be allowed to ask questions for 5 minutes and that will not be 
a liberal gavel, but a strict gavel.
    I ask that the members pay attention to their time and be 
aware that their questions should be asked and answered within 
their 5 minutes. The White House has proposed many witnesses, 
and we want to make sure that everyone has an opportunity to be 
heard. In the interest of time, there will not be questioning 
by committee counsel for these four panels.
    After the hearing of Panel I, we will move immediately to 
Panel II, and then to Panel III. We will observe the same 
procedures as Panel I, 10-minute witness presentations followed 
by questions by members under the 5-minute rule.
    Tomorrow we will hear the fourth panel of witnesses. I hope 
to start at 8 a.m. tomorrow morning to ensure ample time for 
the White House presentation. Tomorrow afternoon, the committee 
will receive the testimony of White House Counsel Charles Ruff. 
After his presentation, members will question Mr. Ruff under 
the 5-minute rule. He will also be available for questioning by 
committee counsel.
    Thursday morning, we will have a presentation by Minority 
Chief Investigative Counsel Abbe Lowell at 9 a.m. and a 
presentation by Chief Investigative Counsel David Schippers at 
1 p.m. Beginning at 4 p.m., we will begin consideration of a 
resolution containing articles of impeachment for our debate 
and deliberation. We will hear opening statements from all 
members Thursday evening. Friday, we will begin consideration 
and debate of articles of impeachment.
    I now recognize the distinguished gentleman from Michigan 
and ranking member of the committee, John Conyers, for his 
opening remarks. Immediately following the gentleman's remarks, 
we will hear from Special Counsel Greg Craig and the other 
witnesses of Panel I.
    Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman, for providing the 
White House the opportunity to present their witnesses. The 
Independent Counsel had 4 years to investigate the President. 
This committee has had 4 months. The White House is now getting 
2 days.
    There is no question that the President's conduct was 
wrong, that he misled the country and the Nation. But I believe 
that the legal case against the President is not strong. 
Republicans have said that Democrats do not contest the 
charges. Well, we do. There is no question that the President 
misled the country in his January 21 press conference. But that 
does not amount to perjury. The President already admitted 
before the grand jury to an improper sexual relationship. Now 
the Republicans insist that he must admit to sexual relations 
under the contorted definition provided by the Paula Jones 
attorneys. That is really at the heart of the perjury charge. 
That is the strength of its foundation.
    The effort to find Monica Lewinsky a job started well 
before there was any Paula Jones witness list. The President 
never offered Lewinsky a job. That charge is frivolous.
    Betty Currie was not on the witness list, and thus the 
President's conversations with her could not possibly have been 
the basis for obstruction. It is perfectly legal for the 
President, or anyone else, to tell a civil witness--in this 
case, Miss Lewinsky--that an affidavit may satisfy the 
requirement of the court. That is not obstruction.
    It was Monica Lewinsky's idea to return the gifts. The 
President was never concerned about the gifts and kept giving 
them. And Monica Lewinsky, in the most significant, clarion 
statement before the grand jury, said that no one asked her to 
lie and no one promised her a job.
    The legal case against the President is, in my judgment, a 
house of cards. The Judiciary Committee has heard from no 
factual witnesses to validate any of the charges. Instead, it 
is relying on uncross-examined, often contradictory grand jury 
hearsay to support an already weak case.
    That would not satisfy any court of law, and it cannot 
possibly serve as the evidentiary foundation for an 
impeachment. And even if these shaky allegations were proven 
true, they would not rise to the standard of impeachment which 
requires the abuse of official power.
    So we are at a critical crossroads today. We can either 
impeach the President, along a largely party line vote, and 
send this resolution to the Senate where there will be a 6-
month or more, full-blown, intensified investigation; or we can 
find a meaningful way of censuring the President. The public, 
you may know, is overwhelmingly against impeachment and is for 
censure.
    But our new Republican leadership, led by Speaker-Elect 
Livingston and Whip Tom DeLay, are thumbing their noses at the 
American people and telling them that the solution the American 
people want most cannot even come to the floor for a vote.
    Well, if the American people ever wanted strong evidence 
that the extremists are still in control of this process, then 
that is it. It is time to give the American people a holiday 
gift, to end this sordid tale. But the gift that the extremists 
on the other side offer is 6 more months of this investigation 
by changing the venue to the Senate.
    This, Mr. Chairman and colleagues, is not the way to bring 
this important issue to a speedy conclusion.
    Thank you.
    Chairman Hyde. Thank you, Mr. Conyers. Mr. Craig, Attorney 
General Katzenbach, Professor Ackerman, Professor Wilentz and 
Professor Beer, would you mind standing to receive the oath. 
Would you raise your right hand.
    [Witnesses sworn.]
    Chairman Hyde. Thank you.
    Mr. Scott. Mr. Chairman?
    Chairman Hyde. Mr. Scott?
    Mr. Scott. Mr. Chairman, parliamentary inquiry. I 
understood that we would have a committee meeting prior to the 
receipt of testimony. Are motions at this point out of order?
    Chairman Hyde. I think we are going to do that tomorrow 
morning, Mr. Scott.
    Mr. Scott. Well, I would like the record to reflect that I 
had a motion that would be timely now, that might not be timely 
tomorrow morning.
    Chairman Hyde. What is your motion?
    Mr. Scott. To ask for a specific scope of inquiry prior to 
the White House rebuttal of the undefined allegations. If we 
are asking them to rebut, we ought to have them notified of 
what the allegations and what the scope is.
    We only have 5 minutes to ask questions. We have had 
various different lists of what the allegations are. We would 
like to use our 5 minutes effectively and not ask questions 
about allegations that we are not actually pursuing.
    Chairman Hyde. Well, this is a hearing, so it is not 
appropriate that you be recognized for the purposes of that 
motion. We will proceed with the hearing.
    Mr. Scott. Thank you, Mr. Chairman.
    Chairman Hyde. Let the record show that the witnesses 
answered the question posed by the oath in the affirmative. And 
I will give a very brief introduction. Mr. Craig may want to 
make a more fulsome introduction, and I don't want to foreclose 
you from doing that.
    Mr. Gregory Craig is Assistant to the President and Special 
Counsel. The Honorable Nicholas Katzenbach is a former Attorney 
General of the United States under President Johnson and Under 
Secretary of State. He is also retired as Senior Vice President 
and Chief Legal Officer of IBM.
    Professor Bruce Ackerman is the Sterling Professor of Law 
and Political Science at Yale University and author of ``Volume 
II: We the People,'' which includes an historical and legal 
analysis of the impeachment of Andrew Johnson. Professor Sean 
Wilentz is the Dayton Stockton Professor of History and 
Director of Program in American Studies at Princeton 
University. Professor Wilentz is an expert and teacher of 
American history from the American Revolution through 
Reconstruction. He is the author of six books and numerous 
articles.
    Professor Samuel H. Beer is the Eaton Professor of the 
Science of Government Emeritus at Harvard University. He has 
written and lectured and taught about the American system of 
government for over 65 years.

TESTIMONY OF GREGORY B. CRAIG, ESQ., ASSISTANT TO THE PRESIDENT 
AND SPECIAL COUNSEL; HON. NICHOLAS KATZENBACH, FORMER ATTORNEY 
GENERAL OF THE UNITED STATES; SEAN WILENTZ, THE DAYTON STOCKTON 
 PROFESSOR OF HISTORY; SAMUEL H. BEER, EATON PROFESSOR OF THE 
 SCIENCE OF GOVERNMENT EMERITUS, HARVARD UNIVERSITY; AND BRUCE 
ACKERMAN, STERLING PROFESSOR OF LAW AND POLITICAL SCIENCE, YALE 
                           UNIVERSITY

    Chairman Hyde. Mr. Craig, you are recognized for a 15-
minute statement.

              TESTIMONY OF GREGORY B. CRAIG, ESQ.

    Mr. Craig. Mr. Chairman, Congressman Conyers, members of 
the committee, good morning. My name is Greg Craig, and I am 
Special Counsel to the President. Let me first say that it is 
my honor, as well as an obligation, to appear before this 
committee in defense of the President.
    The purpose of my appearance is to describe briefly and in 
general terms how we plan to proceed with the presentation of 
the President's defense over the next 2 days.
    The time has finally come for the President to make his 
case and to give his side of the story. Over the next 2 days we 
will present to this committee, to the Congress, and to the 
country as a whole, a powerful case--based on the facts already 
in the record and on the law--a powerful case against the 
impeachment of this President.
    During our presentation today and tomorrow we will show 
from our history and our heritage, from any fair reading of the 
Constitution, and from any fair sounding of our countrymen and 
women, that nothing in this case justifies this Congress 
overturning a national election and removing our President from 
office.
    As we begin this undertaking, I make only one plea to you, 
and I hope it is not a futile one coming this late in the 
process. Open your mind, open your heart, and focus on the 
record. As you sit there listening to me at this moment, you 
may already be determined to vote to approve some articles of 
impeachment against this President. That is your right and your 
duty if you believe the facts and the law justify such a vote.
    But there is a lot of conventional wisdom about this case 
that is just plain wrong, and if you are in fact disposed to 
vote for impeachment in the name of a justice that is fair and 
blind and impartial, please do so only on the basis of the real 
record and on the real testimony, not on the basis of what 
someone else tells you is in the record.
    By the close of tomorrow, all the world will see one simple 
and undeniable fact: Whatever there is in the record that shows 
that what the President did was wrong and blameworthy, there is 
nothing in the record--in either the law or the facts--that 
would justify his impeachment and removal from office.
    In truth, I would not be fairly representing President 
Clinton if I did not convey to you his profound and powerful 
regret for what he has done. He has insisted and personally 
instructed his lawyers that no technicalities or legalities 
should be allowed to obscure the simple moral truth that his 
behavior in this matter was wrong. He misled his wife and 
family, his friends and colleagues, and our Nation about the 
nature of his relationship with Ms. Lewinsky.
    The President wants everyone to know--the committee, the 
Congress, and the country--that he is genuinely sorry for the 
pain and the damage that he has caused and for the wrongs that 
he has committed.
    But as an attorney, I must caution this committee to draw a 
sharp distinction between immoral conduct and illegal acts. 
Just as no fancy language can obscure the simple fact that what 
the President did was morally wrong, no amount of rhetoric can 
change the legal reality that there are no grounds for 
impeachment. As surely as we all know that what he did is 
sinful, we also know it is not impeachable.
    Let me assure the members of this committee, the Members of 
the House of Representatives, and the American public of one 
thing: In the course of our presentation today and tomorrow, we 
will address the factual and evidentiary issues directly. We 
will draw this committee's attention to evidence that tends to 
clear the President with respect to each of the various 
charges--evidence that was left out of the Independent 
Counsel's referral, evidence that has not been widely reported 
in the press, but evidence that reveals the weakness of the 
charges being brought against the President. We are confident 
that at the end of this presentation, you will agree that 
impeachment is neither right nor wise nor warranted.
    When it comes to constitutional standards for impeachment 
as conceived by the Founding Fathers, we will show that the 
Constitution requires proof of official misconduct and abuse of 
high public office for the drastic remedy of impeachment to be 
appropriate.
    When it comes to standards of proof that should apply to 
the evidence that is brought before this committee, we will 
argue that this President should be considered innocent until 
proven guilty, and that he should be informed with 
particularity as to the facts and specifics of the misconduct 
that he is accused of, especially when it comes to the 
allegations of perjury.
    On those allegations, we will show that neither the law of 
perjury nor the facts of this case could sustain a criminal 
prosecution, much less impeachment.
    Mr. Chairman, I am willing to concede that in the Jones 
deposition the President's testimony was evasive, incomplete, 
misleading, even maddening, but it was not perjury.
    On the allegation of perjury before the grand jury, which 
we all agree is the more serious offense, please look at the 
real record, not the referral's report of that record. Millions 
of Americans watched that testimony. They concluded, as I 
believe you too will find, that in fact the President admitted 
to an improper, inappropriate, and intimate relationship with 
Ms. Lewinsky. He did not deny it; he admitted it. Fair-minded 
Americans heard what the President said, and they knew what the 
President meant.
    When it comes to allegations that the President, with Ms. 
Lewinsky and Ms. Currie and Mr. Jordan, obstructed justice, we 
will show that the evidence presented in the referral is 
misleading, incomplete, and frequently inaccurate. We will show 
that the President did not obstruct justice with respect to 
gifts, the job search, or the affidavit. And we will show that 
the President did not seek wrongfully to influence Ms. Currie's 
testimony.
    Again, we will ask you to look at the real record, not the 
referral's version of the record. And the real record shows 
that the sworn testimony of Ms. Lewinsky, Ms. Currie and Mr. 
Jordan, far from incriminating the President, actually 
exonerates him. And yet their testimony, although crystal clear 
before the grand jury, is edited, modified, qualified, or 
ignored in the referral.
    When it comes to allegations that the President abused his 
office, we will show that the President's assertions of 
executive privilege were perfectly proper and that the claims 
of attorney-client privilege were justified under the 
circumstances.
    And when it comes to allegations that the President used 
the power of his office to mislead his aides, not, as one might 
think, for the purpose of protecting himself and his family, 
but, as alleged, to mislead the grand jury, we will show that 
false denials about an improper private relationship, whether 
those denials are made in private or before the entire world, 
simply do not constitute an abuse of office that justifies 
impeachment.
    Finally, Mr. Chairman, before introducing the distinguished 
members of this panel, let me just point out that in the course 
of this impeachment inquiry the members of this committee have 
learned nothing new either about the Lewinsky matter or about 
any other matter warranting consideration in these proceedings 
except that the President has finally, if belatedly, been 
cleared on the charges concerning Whitewater, the file matter, 
and the travel office. There has been no new evidence and there 
are no new charges.
    So I say to the members of the committee, if back in 
September when you received this referral, if back in October 
when you voted to conduct this inquiry, if back then you did 
not think that the referral justified impeaching President 
Clinton, there is no reason for you to think so today.
    There can be no more solemn or awesome moment in the 
history of this Republic than when the Members of the House of 
Representatives contemplate returning an article of impeachment 
against the President of the United States. There can be no 
more soul-searching vote in the career of a Member of the House 
of Representatives than when he or she considers impeachment of 
the President of the United States. These are weighty issues 
and great moments of conscience and consequence. Please do not 
let the passion of partisan politics on either side blind your 
eyes to the truth of the law, the evidence, and above all, the 
national interest.
    This first panel of witnesses is composed of a 
distinguished public servant and a group of eminent scholars 
who will testify about the history of impeachment and the 
constitutional standards that should govern impeachment.
    The second panel of witnesses will bring the wisdom of 
hard-won experience--experience, Mr. Chairman, earned in this 
very room serving on this very committee under the leadership 
of that distinguished Chairman, Peter Rodino, whose portrait 
hangs on the wall before me. They will bring that wisdom to 
bear on the vital issue of what was abuse of power by a 
President in 1974 compared with the allegations and the 
evidence of abuse of power by this President in 1998.
    The third panel of witnesses will discuss how we should 
examine and evaluate the evidence that is before us with 
respect to the abuse of power and the fact-finding process. And 
then tomorrow, we will hear the testimony of a fourth group of 
witnesses, experienced lawyers in the criminal justice system 
who will shed light on the prosecutorial standards of bringing 
criminal cases of alleging perjury and obstruction of justice.
    To close, tomorrow afternoon, Charles Ruff, Counsel to the 
President, will present the President's final defense to the 
committee and respond to questions.
    On behalf of the President, I thank the committee for its 
time and its attention, and I now turn the microphone over to 
Mr. Katzenbach, the former Attorney General of the United 
States.
    [The statement of Mr. Craig follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.001
    
    [GRAPHIC] [TIFF OMITTED] T3320.002
    
    [GRAPHIC] [TIFF OMITTED] T3320.003
    
    [GRAPHIC] [TIFF OMITTED] T3320.004
    
    Mr. Rogan. Mr. Chairman, a parliamentary inquiry.
    Chairman Hyde. The gentleman will state his parliamentary 
inquiry.
    Mr. Rogan. Mr. Chairman, will the written statements of the 
respective witnesses be provided to the members of the 
committee?
    Chairman Hyde. That is a good question. I am not sure.
    Mr. Craig, do you have a written statement?
    Mr. Craig. This is my only written statement. I will be 
happy to copy it and distribute it among the members.
    Chairman Hyde. Would one of our staff get Mr. Craig's 
statement--we can do that if you don't mind.
    Jim, would you get the copy?
    Mr. Craig. Pay no attention to my edits.
    Chairman Hyde. Will the other witnesses have written 
statements that we can avail ourselves of? It is helpful for 
the record and for our edification.
    Mr. Katzenbach.

           TESTIMONY OF HONORABLE NICHOLAS KATZENBACH

    Mr. Katzenbach. I do, Mr. Chairman, but I would appreciate 
it if I could have the written statement until I have completed 
reading it.
    Chairman Hyde. Well, that gives you a considerable 
advantage, but go ahead.
    Mr. Katzenbach. I think, with this committee, I need it, 
Mr. Chairman.
    Chairman Hyde. Touche, touche.
    Mr. Katzenbach. Proceed?
    Mr. Chairman and members of the committee, let me first 
say, Mr. Chairman, that I thought your introduction was very 
fulsome, and I appreciate it.
    Chairman Hyde. Good.
    Mr. Katzenbach. I also appreciate the opportunity to 
testify before this once-familiar-to-me committee on the 
important constitutional question of impeachment of the 
President of the United States which is before this committee.
    A great deal has been written and spoken on the subject of 
impeachment by the media, by Members of Congress, by the 
witnesses testifying before this committee, by academics and 
others--so much, in fact, that it seems to me we are in danger 
of losing sight of and understanding the fundamentals. So in 
the hope of simplifying a complex issue, I would like to begin 
with some fundamentals that are not, I believe, controversial.
    The process of impeachment is simply to remove from office 
upon conviction, not to otherwise punish the person involved. 
The Constitution provides the legislative branch, the Congress, 
with this means of removing from office the President, the Vice 
President, and all civil officers upon conviction of treason, 
bribery, or other high crimes and misdemeanors. The threshold 
problem for the committee is, of course, to determine what 
constitutes high crimes and misdemeanors which would justify 
removal from office of an elected President.
    The phrase, ``high crimes and misdemeanors,'' is not a 
familiar one in modern American jurisprudence. Common law 
constituted a category of political crimes against the state 
and neither ``high crime'' nor ``high misdemeanor'' have ever 
been terms used in the criminal law. In the United States, one 
of the founders, James Wilson, made essentially that point when 
he wrote that, quote, ``Impeachments are confined to political 
characters, to political crimes and misdemeanors, to political 
punishments.''
    Or, as Justice Story observed, ``Impeachment is a 
proceeding purely of a political nature. It is not so much 
designed to punish an offender as to secure the state against 
gross political misdemeanors. It touches neither his person nor 
his property, but simply divests him of his political 
capacity,'' end quote.
    The problem which the Founders faced was how to adapt this 
process from a parliamentary system in which there was no 
separation of powers to one in which separation of powers was 
of great importance. In Great Britain, the impeachment process 
was aimed at officers appointed by the Crown in circumstances 
historically where the king himself could not be removed from 
office, except perhaps by revolution, such as Oliver 
Cromwell's. As the British system has evolved and the prime 
minister become essentially a legislatively elected official 
where he or she could be forced to a midterm election by a 
parliamentary vote of no confidence, impeachment has lost its 
punch. But in the United States where the President is elected 
for a fixed term of office different from the legislative 
terms, the Founders thought it essential to have some means of 
removing him or her before the expiration of his term if he is 
guilty of high crimes and misdemeanors.
    And whatever that term may be found to mean, it is clear 
that the Founders intended it to be a limited power. Because in 
their debates, the Founders dealt virtually exclusively with 
the President. Civil officers, as you know, were added later in 
the process. And because for most of the Convention the 
impeachment clause was confined to treason and bribery, they 
equated all high crimes and misdemeanors with, in the debates, 
great offenses when that term was added.
    Now, I appreciate this brief history does not resolve in 
any decisive fashion the threshold problem the committee is 
facing in determining what conduct by a President justifies 
impeachment. But I do think it tends to provide some parameters 
which should be useful and which should not, at least when 
phrased generally, be very controversial.
    It is a serious matter for a Congress to remove a President 
who has been elected in a democratic process for a term of 4 
years, raising fundamental issues about the separation of 
powers. If that power is not limited, as it clearly is, then 
any President could be removed if a sufficient number of 
Members of the House and Senate simply disagreed with his 
policies, thus converting impeachment into a parliamentary vote 
of no confidence. Whatever its merits, that is not our 
constitutional system.
    Because impeachment is a political process, it has always 
had a strong partisan quality element and strong partisan 
motivation. It still does and in a democratic political system 
probably always will. But that fact simply increases the risk 
of subverting the constitutional system.
    To appreciate those risks, you need only consider the 
impeachment of Andrew Johnson, a President who came close to 
being convicted in a process as unfair as it was partisan, 
which should be an object lesson for all.
    The job of this committee is to weigh the facts of 
President Clinton's alleged conduct against the limiting 
provision of the Constitution, ``other high crimes and 
misdemeanors.'' The job may seemingly be made more difficult 
because of the application of that term to judges as well as 
the President and Vice President. But judges are appointed 
during good behavior, a term which significantly does not apply 
to limit the 4-year term of the President. By removing one of 
several hundred Federal judges from office doesn't have the 
same constitutional significance as removing the President. 
Even removal of a Supreme Court Justice would raise different 
considerations from removing the President where the standard 
is far higher than for judges, as Congressman--as he was then--
Gerald Ford recognized when he proposed impeachment of Justice 
Douglas. To come to the same conclusions on the same facts in 
such different situations would make a mockery of the 
Constitution and the intentions of the Founding Fathers.
    Only if one takes the view articulated by Senator Fessenden 
in the Johnson impeachment, that impeachment is a power, quote, 
``to be exercised with extreme caution in extreme cases,'' can 
the same standards apply to Presidents and judges. One simply 
needs to take into consideration thedifferent roles and 
responsibilities of the officers involved.
    The proper way to resolve these problems which are made 
more difficult by unfamiliar language than they are by clear 
purpose, is simply to return to the reasons for the provision. 
If we think of it in political, not partisan, but political 
terms impeachment is designed to provide the legislative branch 
with a method of removing a person from office whose conduct is 
so egregious as to justify reversing the process by which he 
was appointed or elected.
    It seems to me clear that in our system of separation of 
powers, this cannot mean simply disagreement, however sincere, 
however strongly felt, with either the decisions of judges or 
the policies of the President. It must be some conduct, some 
acts which are so serious as to bring into question the 
capacity of the person involved to carry out his role with the 
confidence of the public.
    If I am correct--and this seems to me the fundamental 
question--it is simply whether the President has done something 
which has destroyed public confidence in his ability to 
continue in that office. If the public does not believe that 
what he has done seriously affects his ability to perform his 
public duties as President, should the committee conclude that 
his acts have destroyed public confidence essential to that 
office? The only question, after all, is removal from office of 
an elected official. Is it proper? Is it the proper role of a 
partisan majority in Congress to conclude that the offenses are 
so serious as to warrant removal, even if the public believes 
otherwise? I don't find the arguments for this position 
persuasive.
    First, there is the argument that perjury--and for the 
purposes of this analysis, I take it to be correct--is always 
so serious, irrespective of circumstance, as to warrant removal 
of a President. I suggest that some perjury is more serious 
than others--if, for example, the President were to swear 
falsely that he had no knowledge of a CIA plot to assassinate 
the Speaker.
    Chairman Hyde. Mr. Katzenbach, could you wind up? Because 
your 10 minutes has expired.
    Mr. Katzenbach. Are you sure, Mr. Chairman?
    Chairman Hyde. Yes, that big red light----
    Mr. Katzenbach. Could I have 1 more minute?
    Chairman Hyde. Surely, but I just wanted you to know.
    Mr. Katzenbach. Okay. The point is simply that all perjury 
may be reprehensible, but it is still not of similar import 
when the ultimate issue is public confidence to perform the 
duties of office.
    If the argument is made that the public's view as to what 
does or does not constitute a cause for impeachment is 
irrelevant because of the duty of the House to determine 
whether or not the President has committed a high crime or 
misdemeanor, I would agree if it were a criminal case. I would 
agree if the President was extremely unpopular, because I could 
not then separate that popularity from the acts causing the 
impeachment. In those circumstances, the Congress would have a 
particularly difficult job.
    But this Congress and this committee are faced with a 
totally new impeachment problem. Due to the existence of the 
Independent Counsel, the facts are publicly known, the areas of 
factual dispute relatively minor. Members of Congress have 
expressed concern over the evils of perjury and other alleged 
offenses and their serious nature. For whatever reason, the 
public remains unpersuaded.
    Finally, I cannot see any constitutional basis for 
impeachment. To remove a popularly elected President requires, 
in my judgment, showing a great offense against the public 
sufficient to bring into question of reasonable people whether 
or not he should be removed.
    The threshold constitutional question, Mr. Chairman, for 
each Member of Congress is that he--which he must decide, or 
her--can be simply stated: Is the conduct of the President such 
that he should be removed from office because, as a consequence 
of that conduct, the public no longer has confidence that he 
can perform the duties of that high office.
    Remember, impeachment is a political process, a political 
remedy to preserve confidence in that political process, not to 
punish a perpetrator.
    Thank you.
    Chairman Hyde. Thank you very much, Mr. Katzenbach.
    [The statement of Mr. Katzenbach follows:]

             Prepared Statement of Hon. Nicholas Katzenbach

    Mr. Chairman and Members of the Committee: My name is 
Nicholas Katzenbach. I am a retired Senior Vice-President and 
Chief Legal Officer of IBM and a former Attorney General of the 
United States and Under Secretary of State now semi-retired 
from the practice of law in New Jersey. I appreciate the 
opportunity to testify before this once-familiar Committee on 
the important Cosntitutional question of Impeachment of the 
President of the United States.
    A great deal has been written and spoken on the subject of 
impeachment by the media, by Members of Congress, witnesses 
testifying before the Committee, academics and others--so much, 
in fact, that it seems to me we are in danger of losing sight 
and understanding of the fundamentals. So, in the hope of 
simplifying a complex issue, I'd like to begin with some 
fundamentals that are not, I believe, controversial.
    The process of impeachment is simply to remove from office 
upon conviction--not to otherwise punish the person involved. 
The Constitution provides the legislative branch--the 
Congress--with this means of removing from office the 
President, Vice-President and all civil officers upon 
conviction of treason, bribery, or other high crimes and 
misdemeanors. The threshold problem for the Committee and the 
House is, of course, to determine what constitutes the ``high 
crimes and misdemeanors'' which would justify removal from 
office of an elected President. The phrase ``high crimes and 
misdemeanors'' is not a familiar one in modern jurisprudence.
    At common law it constituted a category of political crimes 
against the state, and neither ``high crime'' or ``high 
misdemeanor'' were ever terms used in criminal law. In the 
United States one of the Founders, James Wilson, made 
essentially the same point when he wrote that ``impeachments 
are confined to political characters, to political crimes and 
misdemeanors, and to political punishments''. Or, as Justice 
Story observed, impeachment is ``a proceeding purely of a 
political nature. It is not so much designed to punish an 
offender as to secure the state against gross political 
misdemeanors. It touches neither his person nor his property, 
but simply divests him of his political capacity''.
    The problem which the Founders faced was how to adapt this 
process from a Parliamentary system in which there was no 
separation of powers to one in which Separation of Powers was 
of great importance. In Great Britain the impeachment process 
was aimed at officers appointed by the Crown in circumstances 
where the King himself could not be removed from office except 
by a revolution such as Oliver Cromwell's. As the British 
system evolved and the Prime Minister became essentially a 
legislatively elected official where he or she could be forced 
to a mid-term election by a parliamentary vote of no 
confidence, impeachment lost its punch.
    But in the United States, where the President is elected 
for a fixed term of office different from the legislative 
terms, the Founders thought it essential to have some means of 
removing him or her before the expiration of his term if he was 
guilty of ``high crimes and misdemeanors''. And whatever that 
term may be found to mean, it is clear that the Founders 
intended it to be a limited power. Because in their debates the 
Founders dealt virtually exclusively with the President (civil 
officers were added late in the process), and because for most 
of the Convention the impeachment clause was confined to 
treason and bribery, they equated ``other high crimes and 
misdemeanors'' with ``great offenses'' when that term was 
added.
    I appreciate that this brief history does not revolve in 
any decisive fashion the threshold problem the Committee is 
facing in determining what conduct by a President justifies 
impeachment. But I do think it tends to provide some parameters 
which should be helpful and which should not, when phrased 
generally, be very controversial. It is a serious matter for 
the Congress to remove a President who has been elected in a 
democratic process for a term of four years, raising 
fundamental issues about the Separation of Powers. If that 
power is not limited--as it clearly is--then any President 
could be removed if a sufficient number of Members of the House 
and Senate simply disagreed with his policies thus converting 
impeachment into a Parliamentary vote of no confidence. 
Whatever its merits, that is not our Constitutional system.
    Because impeacement is a political process it has always 
had a strong partisan political element and motivation. It 
still does and in a democratic political system probably always 
will. But that fact obviously increases the risk of subverting 
the Constitutional system. To appreciate those risks one need 
only review the impeachment of President Andrew Johnson, an 
unpopular President who came close to being convicted in a 
process as unfair as it was partisan and an object lesson for 
all.
    The job of this Committee is to weigh the facts of 
President Clinton's alleged conduct against the limiting 
provision of the Constitution--``other high crimes and 
misdemeanors''. The job may seemingly be made more difficult 
because of the application of that term to judges as well as 
the President and Vice-President: judges are appointed during 
``good behavior'', a term which significantly does not apply to 
limit the four year term of the President. But removing one of 
several hundred federal judges from office does not have the 
same Constitutional significance as removing the President; 
even removal of a Supreme Court Justice would raise different 
considerations than removing the President where the standard 
is far higher than for judges, as Congressman (as he then was) 
Gerald Ford recognized when he proposed the impeachment of 
Justice William Douglas.
    To come to the same conclusions on the same facts in such 
different situations would make a mockery of the Constitution 
and the intention of the Founding Fathers. Only if one takes 
the view articulated by Senator Fessenden in the Johnson 
impeachment that impeachment is a power ``to be exercised with 
extreme caution'' in ``extreme cases'' can the same standard 
apply to both Presidents and judges. One simply needs to take 
into consideration the different roles and responsibilities of 
the offices involved.
    The proper way to resolve these problems--which are made 
more difficult by unfamiliar language than by clear purpose--is 
simply to return to the reasons for the provision. If we think 
of it in political--not partisan--terms, impeachment is 
designed to provide the legislative branch with a method of 
removing a person from office whose conduct is so egregious as 
to justify reversing the process by which he was appointed or 
elected. It seems clear to me that in our system of Separation 
of Powers this cannot mean simply disagreement--however sincere 
and however strongly felt--with either the decisions of judges 
or the policies of Presidents. It must be some conduct--some 
acts--which are so serious as to bring into question the 
capacity of the person involved to carry out his role with the 
confidence of the public.
    If I am correct, then it seems clear to me that the 
fundamental question is simply whether the President has done 
something which has destroyed the public's confidence in his 
ability to continue in office. If the public does not believe 
that what he has done seriously affects his ability to perform 
his or her public duties as President, should the Committee 
conclude that his acts have destroyed the public confidence 
essential to that office? The only question, after all, is 
removal from office of an elected official. Is it the proper 
role of a partisan majority in Congress to conclude that the 
offenses are so serious as to warrant removal even if the 
public believes otherwise?
    I do not find the arguments for this position persuasive in 
the slightest. First, there is the argument that perjury (and 
for purposes of analysis I take this as correct) is always so 
serious (irrespective of circumstance) as to warrant removal of 
a President. I suggest that some perjury is more serious than 
others: If, for example, the President were to swear falsely 
that he had no knowledge of a CIA plot to assassinate the 
Speaker, that would be pretty serious--and I have no doubt the 
public would regard it as such. Indeed, if he simply told the 
public, not under oath, that he had no knowledge of such 
serious misconduct when he did have knowledge, I think that 
would raise serious questions of impeachability. My point is 
simply that all perjury may be reprehensible, but it is still 
not of similar import when the ultimate issue is public 
confidence to perform the duties of office. Isn't it clear that 
despite the strongly held views of some, the public does not 
put perjury about sexual relations in the category of ``high 
crimes or misdemeanors''?
    Second, the argument is made that the public's view as to 
what does or does not constitute a cause for impeachment is 
irrelevant because of the duty of the House to determine 
whether or not the President has committed a ``high crime or 
misdemeanor''. If this were a criminal trial, I would agree. If 
the President were extremely unpopular, as was Andrew Johnson, 
I would agree--simply because I would be unable to separate 
dislike for the President based on unpopular policies from lack 
of confidence based on ``high crimes or misdemeanors''. A 
public that does not like the President is more likely to find 
high crimes and misdemeanors whatever the facts. In those 
circumstances the Congress has a particularly difficult and 
demanding task of being sure that its partisan feelings and 
those of the public are not subverting the Constitutional 
standard; Congress must be sure that there has been a loss of 
confidence because of the President's personal behavior and not 
his policies. From the retrospective of history one cannot but 
admire those Senators in the Johnson impeachment trial who, 
despite political affiliation or interest, had the courage to 
see that Constitutional distinction and who voted to acquit 
because, whatever the political feeling, the Constitutional 
standard had not been met.
    This Committee and this Congress are also faced with a 
totally new impeachment problem. Due to the existence of the 
Independent Counsel the facts are publicly known and the areas 
of factual dispute relatively minor. Members of Congress have 
expressed concern over the evils of perjury and other alleged 
offenses and their serious nature. For whatever reason, the 
public remains unpersuaded. It continues, in the recent 
election and in the polls, to express confidence in the 
President's ability to carry out his official responsibilities. 
In those circumstances it is difficult for me to see any basis 
for his removal other than the obviously partisan--however 
sincere--views of a putative majority.
    Frankly, I cannot see any Constitutional basis for 
impeachment. To remove a popularly elected President requires, 
in my judgment, a showing of ``great offenses'' against the 
public weal sufficient to bring into question in the minds of 
reasonable people the capacity of the incumbent to continue to 
govern in a democracy with public support. If those ``great 
offenses'' are known, I have no doubt the public will 
appreciate their serious nature and react accordingly. Today 
the public knows all the facts and does not regard them as of 
sufficient importance to justify impeachment. In these 
unprecedented circumstances a contrary finding by the Committee 
would appear to be simply an act of political partisanship, not 
adherence to the Constitution. That would be most unfortunate 
and most destructive of our Constitutional Separation of 
Powers.
    Thank you.
    Chairman Hyde. Professor Bruce Ackerman of Yale.
    Mr. Ackerman. I think it is Mr. Wilentz.
    Chairman Hyde. All right. I think we have had a 
substitution temporarily. Professor Sean Wilentz of Princeton.
    Professor Wilentz. Turn the switch on.

                   TESTIMONY OF SEAN WILENTZ

    Mr. Wilentz. There it is, okay. Wilentz in for Ackerman.
    Mr. Chairman and members of the Judiciary Committee, it is 
a high honor to address you today on the grave and momentous 
matter of presidential impeachment. Although I appear at 
invitation of the White House, I wish to make it clear from the 
start that I have no intention of defending the President over 
his confessed and alleged misdeeds. Lawyers with a far greater 
familiarity with the evidence than I are far better equipped to 
do that. Certainly I do not think that the President is 
blameless in these matters, something that I have noted many 
times over the years in my writings.
    Instead, I wish to defend the institution of the 
presidency, the Constitution, and the rule of law from what I 
see as the attacks upon them that have accompanied the 
continuing inquiry into the President's misconduct. In time, we 
will learn how much these attacks have been calculated and how 
much they have been unwitting. Either way, they are extremely 
dangerous.
    It is no exaggeration to say that upon this impeachment 
inquiry, as upon all presidential impeachment inquiries, hinges 
the fate of our American political institutions. It is that 
important. As a historian, it is clear to me that the 
impeachment of President Clinton would do great damage to those 
institutions and to the rule of law, much greater damage than 
the crimes of which President Clinton has been accused.
    More important, it is clear to me that any Representative 
who votes in favor of impeachment, but who is not absolutely 
convinced that the President may have committed impeachable 
offenses--not merely crimes or misdemeanors, but high crimes or 
misdemeanors--will be fairly accused of gross dereliction of 
duty and earn the condemnation of history.
    I would like to address three basic points of historical 
relevance: the grounds for impeachment as envisaged by the 
framers of the Constitution and our understanding of them, the 
dangers of politicizing the impeachment process, and the 
relation between impeachment and the rule of law.
    First, regarding the framers, the scholarly testimony on 
November 9th before the subcommittee regarding the Constitution 
showed--alas, at mind-numbing length--that there is 
disagreement over what constitutes grounds for presidential 
impeachment as envisaged by the framers. Yet, the testimony 
also showed that there is substantial common ground. Above all, 
the scholars agreed that not all criminal acts are necessarily 
impeachable acts. Only, ``treason, bribery and other high 
crimes and misdemeanors'' committed, in George Mason's 
explicit, original language, ``against the state,'' would seem 
to qualify, at least if we are to go by what the framers 
actually said and wrote. Or, according to James Wilson of 
Pennsylvania, impeachment is restricted to ``political 
characters, to political crimes and misdemeanors, and to 
political punishments.''
    Now, a great deal of the disagreement among historians 
stems from a small but fateful decision taken by the 
Constitutional Convention's Committee on Style. Before the 
Constitution reached that committee, Mason's original wording 
on impeachment was changed from ``against the state'' to ``high 
crimes and misdemeanors against the United States.'' The 
committee was charged with polishing the document's language, 
but with instructions that the meaning not be changed at all. 
Yet by removing in article 1, section 4, the words ``against 
the United States,'' the committee created a Pandora's box 
which we have opened 211 years later.
    The absence of the wording ``against the state'' or 
``against the United States'' in the final document has 
persuaded some historians and constitutional scholars that the 
Constitution embraces all sorts of private crimes as 
impeachable. Yet many, if not most American historians, 
including the nearly 500 who have now endorsed the widely 
publicized statement imploring the impeachment drive, hold to 
the view that Mason's wording and Wilson's observation best 
express the letter and the spirit of what the framers had in 
mind. By that standard, the current charges against President 
Clinton do not, we American historians believe, rise to the 
level of impeachable offenses.
    As further historical evidence, I would point to the fact 
that the only other occasions when presidential impeachment was 
pursued, against Presidents Andrew Johnson and Richard Nixon, 
plainly involved allegations of grievous public crimes that 
directly assaulted our political system.
    Another pivotal piece of evidence has to do with the Nixon 
impeachment. In 1974, the Judiciary Committee declined to 
approve a bill of impeachment, an article of impeachment 
connected to serious allegations that President Nixon had 
defrauded a Federal agency, the Internal Revenue Service.
    Now, without question, an occasion could arise when it 
would be necessary to expand on the framers' language to cover 
circumstances they may never have contemplated, including truly 
monstrous private crimes. I would hope, for example, that any 
President accused of murder, even in the most private 
circumstances, would be impeached and removed from office. But 
not even the President's harshest critics, as far as I know, 
have claimed that the current allegations are on a par with 
murder.
    Various Representatives, scholars, and commentators have 
offered technically plausible, but I think deeply mistaken and 
misleading arguments, contending that the allegations against 
President Clinton rise to an impeachable standard under the 
definitions of crimes ``against the state.'' There has been 
talk of a concerted attack on one of the coordinate branches of 
government, of a calculated presidential abuse of power, 
namely, that he raised issues of executive privilege and that 
he lied to his aides. But these assertions rightly sound 
overwrought, exaggerated, and suspicious to ordinary Americans, 
let alone to professional historians, when matched against the 
facts of the case.
    Similar magisterial language was used in the impeachment 
proceedings against President Johnson and had impact in the 
Congress. Johnson too, after all, had violated a Federal law 
much more definitively than President Clinton has. Since then, 
though, historians have looked behind the language at the 
actual facts of the case, as well as at the political context 
of the time, and in general they have concluded thatthe 
impeachment effort against Johnson was a drastic departure from what 
the framers intended, one that badly weakened the presidency for 
decades. That is the reason why very few of us can remember the names 
of all those presidents between Ulysses S. Grant and Theodore 
Roosevelt.
    So, too, later generations of historians will judge these 
proceedings. I strongly believe that the weight of the evidence 
runs counter to impeachment. What each of you on the committee 
and your fellow Members of the House must decide, each for him 
or herself, is whether the actual facts alleged against the 
President, the actual facts and not the sonorous formal 
charges, truly rise to the level of impeachable offenses. If 
you believe they do rise to that level, you will vote for 
impeachment and take your risks at going down in history with 
the zealots and the fanatics. If you understand that the 
charges do not rise to the level of impeachment, or if you are 
at all unsure, and yet you vote in favor of impeachment anyway 
for some other reason, history will track you down and condemn 
you for your cravenness. Alternatively, you could muster the 
courage of your convictions. The choice is yours.
    Second, on impeachment and politicization, many 
commentators--including Attorney General Katzenbach--have noted 
correctly that presidential impeachment is, strictly speaking, 
a political and not a judicial matter. Yet there is all the 
difference in the world between a political procedure and a 
politicized one. A political proceeding is a deliberative, 
bipartisan, evenhanded effort to assess possible political 
offenses under the Constitution. A politicized procedure, 
however, overlooks constitutional standards and heeds other 
considerations, be they political favors, anger at the 
President or pressure from party leaders.
    On the basis of recent press reports, I fear that these 
proceedings are on the brink of becoming irretrievably 
politicized, more so than even the notorious drive to remove 
Andrew Johnson from office 130 years ago.
    I would like to be able to share with you the story of that 
impeachment of Johnson and its relevance to our current 
distempers. The light has, however, turned orange, and I don't 
have much time, so I will skip over that and perhaps we will be 
able to do that in questioning.
    The point that I wanted to make is that it seems to me 
that, unlike then, when Members of the House of Representatives 
were firmly convinced that President Johnson had committed a 
high misdemeanor, today it seems that other considerations are 
coming into play, that perhaps something else is going on.
    Indeed, compared to 1868, a perverse logic has taken hold. 
Some have said that we should impeach a President because we do 
not think the Senate will remove them. This perverted logic 
turns the impeachment vote into a thoroughly politicized and 
reckless move.
    I see the red light, Mr. Chairman, and I will wrap up.
    Some would have us forget about constitutional standards 
and duties and do the short-term political thing, sailing the 
ship of state into dangerous waters uncharted in this century. 
Such willingness to pass the buck on so grave and indelible a 
matter as impeachment is a feeble evasion of responsibility and 
a degradation of conscience.
    Finally, on the question of rule of law, what I say in my 
written statement is basically that it is a greater threat to 
the rule of law to actually go ahead with this impeachment than 
not to go ahead with this impeachment. The argument that 
somehow allowing the President to get away with suspected 
perjury and obstruction of justice will countenance an 
irreparable tear in the seamless web of American justice, that 
if we impeach the President the rule of law will be vindicated, 
if only in a symbolic way, proving firstly that no American is 
above the law and that the ladder of the law has no top and no 
bottom--this argument, I believe, is nonsense logically and 
historically, with all due respect. Rather, I believe--and we 
can talk about this later on--the impeachment process itself 
poses a far greater risk to the rule of law.
    A final comment. I began by discussing President Clinton's 
accountability for the current impeachment mess. By 
equivocating before the American people and before a Federal 
grand jury, not to mention before his family and friends, he 
has disgraced the presidency and badly scarred his reputation. 
He has apologized and asked for forgiveness.
    But now, as mandated by the Constitution, the matter rests 
with you, the Members of the House of Representatives. You may 
decide as a body to go through with impeachment, disregarding 
the letter as well as the spirit of the Constitution, defying 
the deliberate judgment of the people whom you are supposed to 
represent, and in some cases deciding to do so out of anger and 
expedience.
    But if you decide to do this, you will have done far more 
to subvert respect for the framers, for representative 
government, and for the rule of law than any crime that has 
been alleged against President Clinton, and your reputations 
will be darkened for as long as there are Americans who can 
tell the difference between the rule of law and the rule of 
politics.
    Chairman Hyde. Thank you, Professor, very much.
    [The statement of Mr. Wilentz follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.028
    
    [GRAPHIC] [TIFF OMITTED] T3320.029
    
    [GRAPHIC] [TIFF OMITTED] T3320.030
    
    [GRAPHIC] [TIFF OMITTED] T3320.031
    
    [GRAPHIC] [TIFF OMITTED] T3320.032
    
    [GRAPHIC] [TIFF OMITTED] T3320.033
    
    [GRAPHIC] [TIFF OMITTED] T3320.034
    
    [GRAPHIC] [TIFF OMITTED] T3320.035
    
    Chairman Hyde. Now, the question of the day is, is it 
Professor Ackerman or Professor Beer?
    Professor Beer, you are next. Thank you.

                  TESTIMONY OF SAMUEL H. BEER

    Mr. Beer. Thank you, Mr. Chairman and members of the 
committee. It is appropriate that I should be here before this 
committee, this formidable committee, since just last week I 
was in London advising some of my friends in the House of 
Commons and at a conference on the American view of the 
constitutional reforms being proposed there; and the one reform 
that I particularly stressed was the need for them to beef up 
their legislative committees. I am sure my experience here 
won't change my mind on that point.
    That shows really what my real concern is the political and 
constitutional consequences of impeachment rather than the 
legal and judicial aspects. The process is judicial in form, 
impeachment by the House being like indictment by a grand jury; 
and trial and conviction by the Senate, like trial and 
conviction by a court.
    In fact, however, the consequences of successful 
impeachment do not resemble the usual consequences of a 
judicial trial, for instance, punishment by fine and/or 
imprisonment. As article 1, section 3, paragraph 7, provides, 
punishment of that kind would be invoked after the President 
had become a private citizen by resignation, removal, or 
expiration of his term of office.
    Removal from office--and I see I am emphasizing what my 
colleague Nicholas Katzenbach said--removal from office, that 
grand and forbidding consequence of a successful impeachment, 
distinguishes this process radically from the judgment of a 
court. It resembles, rather, a vote of no confidence in a 
legislature such as the British Parliament. By such a vote, the 
House of Commons can bring to an end the life of a government.
    In 1841, Sir Robert Peel summed up this fundamental 
convention of the British Constitution when, in what became a 
classic formulation, he successfully moved that, ``Her 
Majesty's ministers do not sufficiently possess the confidence 
of the House of Commons to enable them to carry through the 
House measures which they deem of essential importance to the 
public welfare.''
    Now, the relevance. Like a vote of no confidence, 
impeachment brings to an end a President's administration. Like 
a vote of no confidence, it relates not merely to some specific 
failure, but is a judgment on his record and promise as a whole 
with regard to those, to adopt Peel's phrase, ``measures which 
he deems of essential importance to the public welfare.'' 
Because of these broad and weighty consequences, impeachment is 
primarily a political, not a judicial act.
    As a political act, impeachment, like a vote of no 
confidence, passes judgment on and enforces responsibility on 
the executive power. In the British system, that responsibility 
runs directly to the legislature. In the American system, on 
the contrary, that responsibility runs to the legislature only 
secondarily and in special circumstances. For us the 
responsibility of the President is essentially and directly to 
the voters. The legislature as a separate office, separately 
elected, likewise is held accountable by the voters. This 
separation of powers is fundamental in our constitutional 
design and is a main point of distinction from the British 
system.
    The direct responsibility of both branches to the voters 
expresses the sovereignty of the people as the ultimate 
authority of our Constitution and of the government established 
under it.
    Now, as the framers struggled to give expression to that 
principle, they ran into a problem: How were our liberties to 
be protected against misuse of power by the executive between 
quadrennial elections?
    At the Philadelphia Convention during the summer of 1787, 
they explored various possibilities, such as an appeal to the 
Supreme Court and a concoction of other bodies discarded them. 
The States, similarly thinking of their systems of Governors 
and legislatures, were experimenting in theory and practice 
with a variety of methods of bridging the same gap.
    At the last moment, the framers incorporated a structure 
almost exactly in the form then being used in England in the 
impeachment of Warren Hastings. This device, although it had 
ancient roots, had come to special prominence in the 17th and 
18th centuries, when Great Britain for a time displayed a 
certain separation of powers, as a still powerful and 
independent monarch faced off against the rising assertions of 
the Parliament. In those circumstances, impeachment was adopted 
by the Parliamentarians as a means of enforcing responsibility 
on the monarch through action against his ministers.
    When finally the monarch was eased out of politics, the old 
fusion of executive and legislative powers was taken over by a 
committee of Parliament, the Cabinet. Now, the interim method 
of impeachment as a means of getting a hold on the executive 
was dropped in favor of a vote of confidence which performed 
more effectively in those circumstances the function of 
enforcing the responsibility of the executive to Parliament.
    At the same time that impeachment was dying out in Britain, 
it was taken up by the Americans who found in it a way of 
supplementing the principal mechanism of democratic 
responsibility by quadrennial elections. And this is the point: 
the broad scope of impeachment was now embodied in a very 
different system.
    Where the ultimate sovereign is the people, the 
interference of one power, the legislature in its exercise of 
such a dire responsibility as removal of a popularly elected 
President, imposes severe duties on the legislators. The 
Congress, itself not the primary source of authority but only a 
creature of the people, is acting in lieu of the people between 
quadrennial elections. At their best, the legislators will do 
what the people at their best would do, weighing the pluses and 
minuses of the record and the promise of an administration as a 
whole, asking as Nick Katzenbach said, this central question: 
Does the national interest require the removal from office of 
this President? It is not a little detailed question. It is a 
great big far-reaching question.
    In the case of President Clinton, the American people have 
twice answered that question by electing him to the American 
presidency. And if we seek further light on the present 
American mind, surveys of opinion continue to confirm that 
answer, which also in no way is disturbed by the outcome of the 
recent midterm elections.
    I conclude. The failure to consider the whole record of 
Clinton's presidency in foreign and domestic affairs could have 
severe long-run costs. The removal of a President, thanks to 
such superficial judgment, could substantially damage our 
democratic system. Consider the temptations which this 
precedent would excite in a Congress of a different party 
against a future President of a different party.
    As a great historian, Henry Adams, said when commenting on 
the failed attempt of the Jeffersonians to remove Justice 
Chase, ``Impeachment is not a suitable activity for party 
politics.''
    Thank you.
    Chairman Hyde. Thank you very much, Mr. Beer.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.036
    
    [GRAPHIC] [TIFF OMITTED] T3320.037
    
    Chairman Hyde. By process of elimination, we get to you, 
Professor Ackerman.

                  TESTIMONY OF BRUCE ACKERMAN

    Mr. Ackerman. Good morning, Mr. Chairman, and the 
distinguished members of this committee. My name is Bruce 
Ackerman, and I am a Sterling Professor of Law and Political 
Science at Yale. I request the Chair's permission to revise and 
extend these remarks.
    Since you have already heard so much on the subject of 
constitutional standards, I thought I would concentrate on two 
big mistakes that are characterized in the discussion up to 
now.
    The first big mistake centers on the power of this 
committee and the present House of Representatives to send the 
case to trial in the Senate. People seem to be assuming that 
once the present committee and the full House vote for a bill 
of impeachment, the stage will be set for trial in the Senate 
in the coming year. Nothing could be further from the truth.
    As a constitutional matter, the House of Representatives is 
not a continuing body. When the 105th House dies on January 
3rd, all its unfinished business dies with it. To begin with 
the most obvious example, a bill passed by the 105th House that 
is still pending in the 105th Senate on January 3rd cannot be 
enacted into law unless it once again is approved by the 106th 
House of Representatives. This is as it should be.
    Otherwise, lame duck Congresses would have a field day in 
situations like the present where the old House Majority has a 
setback in the polls. Recognizing that its political power is 
on the wane, the dominant party will predictably use its lame 
duck months to pass lots of controversial legislation on to the 
Senate in defiance of the judgment made by the voters.
    This abuse was very common during the first 150 years of 
this Republic. Until the 20th amendment was passed in 1933, a 
newly elected Congress ordinarily waited 13 months before it 
began its first meeting in Washington, D.C. In the meantime, 
lame ducks did the Nation's business for a full session, often 
in ways that ran against the grain of the last election.
    This might have been an acceptable price to pay in the 18th 
century when roads were terrible and it took time for farmer 
representatives to arrange their business affairs, but over the 
passage of centuries, the operation of lame duck Congresses 
proved to be an intolerable violation of democratic principles, 
and they were basically abolished by the 20th amendment to the 
Constitution of the United States in 1933.
    This amendment aims to have the new Congress begin meeting 
as soon as possible after the elections. The text itself 
specifies January 3rd. In enacting this amendment into our 
fundamental law, Americans believed they were reducing the lame 
duck problem to vestigial proportions. Perhaps some grave, 
national emergency might require decisive action; but the old 
Congress was expected simply to fade away as the Nation enjoyed 
the respite from politics between Thanksgiving and New Year's 
Day.
    Generally speaking, lame duck Congresses have proved 
faithful to this expectation. For example, during the 65 years 
since the 20th amendment became part of our higher law, no lame 
duck House has ever impeached an errant Federal judge, much 
less a sitting President of the United States.
    Such matters have been rightfully left to the Congresses 
that were not full of Members who had been repudiated at the 
polls and who were retiring from office.
    These proceedings, then, are absolutely unprecedented in 
the post-lame duck era. Despite this fact, I don't question the 
raw constitutional power of the current lame duck House to vote 
on a bill of impeachment. But I do respectfully submit that the 
Constitution treats a lame duck bill of impeachment in 
precisely the same way it treats any other House bill that 
remains pending in the Senate on January 3rd. Like all other 
bills, a lame duck bill of impeachment loses its constitutional 
force with the death of the House that passed it.
    This point was rightly ignored before the election, since 
everybody expected the new Congress to be more Republican than 
its predecessor. On this assumption, it was perfectly plausible 
for this distinguished committee to proceed in earnest. If the 
105th House voted to impeach, there was every reason to suppose 
that the 106th House would quickly reaffirm its judgement and 
send the matter on the way to the Senate.
    But now that the voters have spoken, the constitutional 
status of lame duck impeachments deserves far more attention 
than it has thus far been given. Worse yet, we can't rely much 
on the past for guidance.
    The closest precedent comes from the 1988 impeachment of 
Federal District Judge Alcee Hastings. The 100th House had 
impeached Hastings but both sides wanted to delay the Senate 
trial to the 101st session, and the Senate Rules Committee 
granted their request.
    The committee's perfunctory six-page report, however, does 
not resolve any of the key issues raised by the present case. 
Hastings was a judge, not a President. And he was impeached 
during a normal session of Congress, not by a Congress of lame 
ducks.
    As a consequence, the Senate report does not even pause to 
consider the implications of the fact that the people 
themselves have decisively sought to limit the capacity of lame 
duck Congresses by solely enacting the 20th amendment.
    If we take this amendment seriously, it means that a lame 
duck House should not be allowed to relieve its freshly elected 
successor of the most solemn obligation it can have: to pass 
upon an impeachment resolution. Moreover, if the next House of 
Representatives seeks to duck this responsibility, the Senate 
will not be free to dispense with the problem of lame duck 
impeachment by a simple reference to the 1988 decision in Judge 
Hastings' case.
    Instead, the constitutionality of a lame duck impeachment 
will be the first question confronting Chief Justice Rehnquist, 
the designated presiding officer at the Senate trial.
    Following the precedent established by Chief Judge Chase 
before and during the trial of Andrew Johnson, the Chief 
Justice will rightly assert his authority on all procedural 
issues; and the first of these should undoubtedly be a motion 
by the President's lawyers to quash the lame duck impeachment 
as constitutionally invalid unless reaffirmed by the 106th 
House.
    Now, Chief Justice Rehnquist is, in fact, a scholar of the 
impeachment process, having written an entire book on the 
subject. I am sure that he will be fully aware of the 
historical importance of his conduct of this proceeding and 
will quickly grasp the obvious dangers of lame duck 
impeachment.
    Moreover, there are many strands in the Chief Justice's 
jurisprudence which would lead him to give great weight to the 
idea that it is only a truly democratic House and not a 
collection of lame ducks that has the constitutional authority 
to proceed against a man who has been fairly elected to the 
presidency by the people of the United States. Without any hint 
of partisanship, he would be well within his rights to quash 
the lame duck impeachment and remand the matter back to the new 
House of Representatives.
    Since the status of lame duck impeachments has never been 
briefed and argued in the modern era inaugurated by the 20th 
amendment, it is impossible to make a firm guess as to the way 
the Chief Justice will rule on this matter.
    Only one thing is clear: It would be far better for the 
country and the Constitution if the Chief Justice is never put 
to this test. As Alexander Bickel, my great predecessor in the 
Sterling chair at Yale frequently reminded us, the health of 
our constitutional system is not measured by the number of hard 
cases that have been resolved by clear rulings. It is measured, 
instead, by the number of statesmen in our history who, seeing 
hard cases on the horizon, act in sensible ways so as to avoid 
ever precipitating a constitutional crisis. And that is what we 
are going into.
    If this committee and the present House choose to go 
forward and vote in favor of a bill of impeachment, I 
respectfully urge the new Speaker of the 106th Congress to do 
the right thing and remit the matter once again for 
consideration by the new House.
    Suppose, however, he doesn't do so. Suppose further that, 
if pressed, the Chief Justice upholds the continuing validity 
of the lame duck impeachment despite the expiration of the 
105th Congress. Even then, the new House of Representatives 
will not be able to escape the need to consider whether a 
majority of the Members newly elected continue to favor the 
impeachment of the President.
    To see why, consider that the House must select a group of 
Members, called impeachment managers, to present its case again 
the President at the Senate trial. Without the energetic 
prosecution of the case by the managers, the Senate trial--I am 
sorry, I'll end up here--the Senate trial cannot go forward. No 
managers, no trial. But only the new House can appoint 
managers. This was done in Judge Hastings' case, and it 
certainly should be required in the case of a sitting President 
facing a lame duck impeachment.
    Thus, even if the new House leadership chooses to rely on a 
lame duck impeachment and refuses to allow another vote on a 
fresh bill before sending the matter to the Senate, there is no 
way it can avoid the need to test the Majority's sentiment of the new 
House. By voting against the slate of managers, a majority of the new 
House will be in a position to stop the impeachment process dead in its 
tracks. It is a big mistake.
    Mr. Sensenbrenner [presiding]. Professor Ackerman, do you 
think you could wrap up?
    Mr. Ackerman. This is the last paragraph. It is a big 
mistake, then, for the distinguished Members of this committee 
and this House to suppose that they are the final judges of 
this bill of impeachment.
    To be sure, the recommendation of this committee and the 
vote of the entire House deserves serious consideration by the 
Members taking office next month. But so do the judgments of 
the voters as expressed at the elections in November. I 
respectfully urge you to consider this point as you determine 
your present course.
    To put my point in operational terms, if you don't believe 
that a bill of impeachment or the election of impeachment 
managers will gain the Majority's support of the next House, 
the wise thing to do is to stop the process now. While it may 
be embarrassing to reverse gears after so much momentum has 
been generated in favor of the bill of impeachment, the 
leadership of the next House will confront a much more 
embarrassing situation----
    Mr. Sensenbrenner. Professor Ackerman, I do think you are 
abusing the committee's time. You have gone much further--
Professor Ackerman, could you please wrap it up? The red light 
has been on for about 3 minutes now. Everybody else has been a 
little bit better in terms of watching the red light. Are you 
done?
    Mr. Ackerman. Yes.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.038
    
    [GRAPHIC] [TIFF OMITTED] T3320.039
    
    [GRAPHIC] [TIFF OMITTED] T3320.040
    
    [GRAPHIC] [TIFF OMITTED] T3320.041
    
    [GRAPHIC] [TIFF OMITTED] T3320.042
    
    [GRAPHIC] [TIFF OMITTED] T3320.043
    
    Mr. Hutchinson. Mr. Chairman, I have a unanimous consent 
request.
    Mr. Sensenbrenner. Would the gentleman from Arkansas please 
state the unanimous consent request?
    Mr. Hutchinson. This appears to be the appropriate time for 
a unanimous consent request. I have a Congressional Research 
Service memorandum discussing that impeachment proceedings may 
be continued from one Congress to the next. I ask unanimous 
consent that this be entered into the record as a part of this 
proceeding and distributed to the Members.
    Mr. Sensenbrenner. Without objection.
    Mr. Berman. Mr. Chairman, I think the first copy should be 
distributed to Professor Ackerman.
    Mr. Sensenbrenner. The first copy out of the Xerox machine 
will be given to Professor Ackerman.
    Mr. Ackerman. I have read it, sir.
    Mr. Sensenbrenner. Is there any objection to the request of 
the gentleman from Arkansas?
    Mr. Barrett. Mr. Chairman, reserving my right to object, I 
just want to make sure that that CRS report comes to us before 
we get to questioning. I realize the witness should have the 
first copy, but I think it is important that we have that.
    Mr. Sensenbrenner. We will see how fast the Xerox machine 
can make copies.
    Mr. Barrett. Thank you very much.
    Mr. Chabot. Parliamentary inquiry, Mr. Chairman.
    Mr. Sensenbrenner. Is anybody reserving the right to object 
to the----
    Ms. Waters. I reserve the right to object.
    Mr. Sensenbrenner. The gentlewoman from California on her 
reservation is recognized.
    Ms. Waters. Mr. Chairman, I reserve the right to object 
because I think we have hit upon an extremely important point 
that is being made by Professor Ackerman. And if the gentleman 
would like to--if he has different information, if he is in 
receipt of information that suggests otherwise, I think it 
deserves discussion in this committee rather than simply the 
submission of the information to us.
    Mr. Sensenbrenner. If the Chair may interrupt, the request 
is that the CRS report referred to by the gentleman from 
Arkansas in his unanimous consent become a part of the record. 
Once it becomes a part of the report, then anybody can discuss 
it as they would like.
    But it seems to me we have been very liberal in putting 
statements and materials in the record since the beginning of 
this inquiry. And the gentleman from Arkansas has something 
that he thinks is relevant.
    Is there objection to including the CRS report referred to 
by the gentleman from Arkansas in the record?
    Hearing none, so ordered.
    [Information not available at time of printing].
    Mr. Chabot. Mr. Chairman, parliamentary inquiry.
    Mr. Sensenbrenner. The gentleman from Ohio will state the 
parliamentary inquiry.
    Mr. Chabot. Is it not the practice of the committee that 
when witnesses testify here, we should have the statements of 
the witnesses in writing prior to their testifying so we can 
follow it as they are going through?
    Mr. Sensenbrenner. That is in the rules of the committee, 
yes.
    Mr. Chabot. Can we ask the other witnesses that come today 
and tomorrow, that we could get their statements ahead of time 
so we can follow that?
    Mr. Sensenbrenner. That is in the rules, and that is 
certainly a legitimate request. And I will direct that request 
to Counsel Craig who is responsible for orchestrating the 
witnesses in defense of the President.
    Mr. Gekas. Mr. Chairman.
    Mr. Sensenbrenner. The gentleman from Pennsylvania.
    Mr. Gekas. In response partially to the gentleman of Ohio, 
I believe that we had decided in advance, or someone did, to 
which we acceded, that because of the late start, as it were, 
for the witnesses to appear before this committee, that we in 
effect waive the necessity of their providing statements before 
the hearing. So I would let the--I would allow the record to 
show, as far as my statement is concerned, that I believe that 
that was waived with respect to this panel.
    Mr. Sensenbrenner. Mr. Craig, do you think that it would be 
possible to give committee members advance statements for 
future witnesses today and tomorrow?
    Mr. Craig. We will do our best to do that, Mr. Chairman.
    Mr. Sensenbrenner. Thank you. Mr. Hyde will be out of the 
room for a bit. And we will begin the questioning. I will begin 
with myself. And again I will reiterate Mr. Hyde's admonition 
that the questions will be limited to 5 minutes. And when the 
red light goes on for each questioner, we will state that the 
time has expired and go on to the next questioner. So I yield 
myself 5 minutes.
    Mr. Craig, in your opening statement, you asked members of 
the committee to open their hearts and open their minds and to 
look at the record. I think, since the 9th of September, 
committee members have spent a lot of time looking at the 
record, first in executive section and then in the public 
meetings, that this committee has had pursuant to the 
resolution that the House of Representatives directed us to 
conduct an impeachment inquiry.
    We have heard an awful lot of academic discourse and 
discussion on what constitutes an impeachable offense, what 
constitutes perjury. But we have heard nothing from the 
President contradicting the fact witnesses and the grand jury 
testimony that Judge Starr sent over to us in 18 boxes' worth 
of evidence.
    I am disappointed that there are no fact witnesses 
rebutting any of the evidence that was contained in the 18 
boxes in your presentation today and tomorrow. Are you 
disputing any of the facts? And if so, why are you not bringing 
forth witnesses that can provide direct fact testimony rather 
than opinion or argument disputing the facts?
    Mr. Craig. Congressman, let me respond to that this way: We 
have submitted in writing three different responses to the 
referral that was presented to the House of Representatives by 
Mr. Starr and the Office of Independent Counsel. And we in 
those--in those responses, we take issue with many of the facts 
laid out by Mr. Starr in those--in that referral.
    We do dispute representations and characterizations that 
the Independent Counsel has made, and we do dispute some of the 
testimony that has been presented in the grand jury. And we, in 
particular, urge the committee not necessarily to take at face 
value the characterizations of that testimony or the 
President's testimony that are to be found in the referral by 
Mr. Starr.
    We find that frequently he mischaracterizes that testimony, 
or the Office of Independent Counsel in the referral has 
mischaracterized the testimony of the President in order to 
construct a perjury of allegation.
    Mr. Sensenbrenner. Well, let me get to the heart of this 
case. Did Monica Lewinsky provide false testimony to the grand 
jury, in your opinion?
    Mr. Craig. We think in some areas she provided erroneous 
testimony that is in disagreement with the President's 
testimony and particularly in specific areas having to do with 
the grand jury. Now, you are going to have to make the 
determination as to how important the divergence, the 
disagreement, or the disagreement on the testimony is.
    Mr. Sensenbrenner. There have been complaints by the 
President's counsel and by the Minority Democrats on this 
committee that grand jury testimony is not subject to cross-
examination and that Ms. Lewinsky and the other witnesses that 
came before the grand jury were not cross-examined. How come 
you're not bringing any of these people before this committee 
to provide the cross-examination that the grand jury procedure 
denied you?
    Mr. Craig. We have found, Mr. Chairman, many inconsistent 
statements in the grand jury testimony itself that we believe 
we can use to support our case. We believe that the President 
should be given a presumption of innocence and that the burden 
should be on the committee to call fact witnesses and determine 
whether the credibility of the fact witnesses is such that----
    Mr. Sensenbrenner. Well, the investigation was done 
pursuant to the Independent counsel statute. And I would just 
observe, Mr. Craig, that if the President had told the truth in 
January, there would have been no Independent Counsel 
investigation of this whole matter, and we wouldn't be sitting 
here today. My time has expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Well, let me begin by reminding my acting 
Chairman that it wouldn't have affected whether there would 
have been an Independent Counsel appointed at all.
    One of the--well, let me put all three of these together, 
Mr. Craig. Mr. Starr alleged that the President lied about 
sexual relations before the Paula Jones deposition and in grand 
jury. It is also alleged that the President obstructed justice 
by assisting Ms. Lewinsky with a job search and that he further 
obstructed justice in conversations with Betty Currie after his 
January 17 deposition.
    Could you put those in context for us, please?
    Mr. Craig. Let me talk first about the President's 
testimony in the civil deposition. In the civil deposition, in 
accordance with the definition that he had been provided as to 
what a sexual relationship was, he denied having a sexual 
relationship as it was defined in the deposition by the Jones' 
judge.
    There may be disagreement as to whether his testimony fell 
within or without that definition. But there is no disagreement 
that the President himself and, in fact, Monica Lewinsky, as 
she wrote her affidavit and testified in the grand jury, 
believed that what he was testifying was within the definition 
as given to him by the court.
    The point I'm trying to make here is that there was an 
effort by the President to testify accurately but not to 
disclose information about his relationship. That may be 
blameworthy. It may be wrong. You may judge that he crossed the 
line. But, in fact, there is no testimony or no proof that 
President Clinton knew he was wrong when he looked at that 
definition, and that he intentionally lied.
    I would say when it comes to the job search, Mr. Chairman, 
that there's a good deal of additional information, and this is 
why I so strongly argue that the committee should look at the 
actual record.
    There's a lot of information about the job search that is 
simply not included in the referral: the fact that Ms. 
Lewinsky's desire to leave Washington arose in July, long 
before her involvement in the Jones case; the fact that the 
President provided Ms. Lewinsky with only modest assistance, if 
any at all; the fact that the job assistance that was provided 
by friends and associates of the President for Ms. Lewinsky was 
in no way unusual as opposed to other people who were also 
receiving that kind of job assistance; the fact that there was 
absolutely no pressure applied to obtain Ms. Lewinsky a job; 
the fact that there was no timetable for Ms. Lewinsky's job 
search, let alone any timetable linked to her involvement in 
the Jones case; and the fact that all the people that 
participated in that job search testified that there was 
nothing linked to any testimony or affidavit.
    It is the testimony of Vernon Jordan, it is the testimony 
of Ms. Lewinsky, and it is the testimony of the President that 
there was no obstruction of justice involved in that job 
search.
    Now when it comes to the questions relating to Ms. Currie, 
Ms. Currie at the time she had this conversation with the 
President was not a witness in any proceeding. Her name had not 
appeared on the Jones' witness list. She had not been named as 
a witness in the Jones case, and the discovery period was down 
to its very final days. There was no reason to suspect that she 
would play any role in the Jones case as a witness. And the 
President did not know that the OIC at that point had embarked 
on an investigation of him on the Lewinsky Matter.
    To obstruct a proceeding or to tamper with a witness, Mr. 
Conyers, there must be both a proceeding and a witness. Here, 
as far as the President knew, there was neither.
    And there is a second important point that was also deleted 
or left out or ignored in the presentation of the referral. Ms. 
Currie testified about this conversation with the President on 
numerous occasions and repeatedly testified that she felt 
absolutely no pressure to agree with the questions that the 
President asked her. Let me just cite one excerpt from the 
transcript of Ms. Currie's testimony.
    Mr. Sensenbrenner. The gentleman's time is expired. You 
know, somebody else can bring that up if we are to keep on 
time.
    Mr. Conyers. Mr. Chairman, might he finish the sentence? 
Could he finish the sentence?
    Mr. Sensenbrenner. Finish the sentence.
    Mr. Craig. It's very quick, Mr. Sensenbrenner. She was 
asked, ``Did you feel pressured when he told you those 
statements?'' She said, ``None whatever.'' She was asked, ``Did 
you feel any pressure to agree with your boss?'' She said, 
``None.''
    Mr. Sensenbrenner. Okay.
    Mr. Conyers. Thank you very much, Mr. Craig.
    Mr. Sensenbrenner. The gentleman from Florida, Mr. 
McCollum.
    Mr. McCollum. Thank you very much, Mr. Chairman.
    Mr. Craig, I am glad we're getting into facts. I think it's 
very important that we do that. And although I, too, am 
disappointed there are no fact witnesses, I think the 
discussion is important.
    With respect to the Betty Currie, the record I read 
indicates that indeed the President, numerous times in his 
deposition said, you'll have to ask Betty about that, referring 
to a lot of times in his deposition in the Jones case. And 
surely he would have expected that somebody would have called 
her as a witness whether she was on a witness list at the time 
he had these conversations with her or not. And that, 
therefore, seems to me it's immaterial whether she was on a 
witness list or she wasn't. But that's the type of thing we 
should be discussing. And again it's long overdue.
    I also would like to point out that, as we look through 
these things, there are a lot of things in the record that you 
are obligated to tell us where we are wrong about because--or 
where the record may be different. And I am looking forward to 
that.
    The record I see with regard to the grand jury testimony 
indicates that the President swore that he did not know that 
his personal friend, Vernon Jordan, had met with Monica 
Lewinsky and had talked about the case. And I would say that 
the evidence indicates that he lied about that when he made 
that swearing.
    The President in that deposition swore that he could not 
recall being alone with Monica Lewinsky. The evidence that I've 
read so far indicates that he lied about that. The President 
swore he could not recall ever being in the Oval Office hallway 
with Ms. Lewinsky except perhaps when she was delivering a 
pizza. The evidence indicates he lied about that.
    The President swore he couldn't recall gifts exchanged 
between Monica Lewinsky and himself. The evidence indicates he 
lied about that.
    The President swore 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. The evidence 
indicates he lied about that.
    The President swore he did not know whether Monica Lewinsky 
had been served a subpoena to testify in the Jones case the 
last time he saw her in December of 1997. The evidence I read 
indicates he lied about that.
    The President swore that the last time he spoke to Monica 
Lewinsky was when she stopped by before Christmas in 1997 to 
see Betty Currie at a Christmas party. The evidence I read 
indicates he lied about that.
    The President swore the contents of an affidavit executed 
by Monica Lewinsky in the Jones case, in which she denied they 
had sexual relations, were absolutely true. The evidence I 
read, he lied about that. And before the grand jury as well as 
in the deposition, the President swore that he did not have 
sexual relations with Monica Lewinsky. The evidence indicates that he 
lied, even according to his own interpretation of the Jones court's 
definition of the term sexual relations; because if you believe Monica 
Lewinsky, you have to conclude that indeed the President lied with 
respect to this, because she explicitly said they had certain 
relationships described in that definition.
    And the President initiated an agreement with Monica 
Lewinsky in which she would lie in a sworn affidavit to be 
filed in the Jones case and each would lie under oath if called 
to testify in a case brought against the President. This's what 
I read the evidence as indicating.
    I am curious to know if you find anything in any of the 
testimony, Mr. Craig, that we have before us from Vernon Jordan 
where Mr. Jordan lied? I--is there anything in the record 
that----
    Mr. Craig. Not that I'm aware of. And this is a problem 
that we have run into throughout this proceeding, that is to 
identify precisely what kind of testimony you're talking about 
so that we can have an accurate and prepared response. I am 
not----
    Mr. McCollum. Well, I'm curious about many things.
    Mr. Craig. Can I respond to your allegations about the 
civil deposition and about the grand jury that you strung 
together?
    Mr. McCollum. I strung those together only to give you 
illustrations with respect to where I see the evidence being. 
Let me ask you one other question. You answered the Vernon 
Jordan one. Is there any anything in the record where you see 
Betty Currie lied?
    Mr. Conyers. Mr. Chairman, regular order.
    Mr. Rothman. Can the witness be permitted to answer the 
question?
    Mr. McCollum. In all due respect, it was my time. I asked 
him whether there was anything in the record about Vernon 
Jordan lying. He said no. And I asked him the question of 
whether or not there was anything in the record about Betty 
Currie lying. I would like an answer, if I could.
    Mr. Rothman. Mr. Chairman, regular order.
    Mr. Sensenbrenner. The gentleman from Florida has got the 
time. I would ask members of the committee not to interrupt 
other members of the committee during their own time. The 
gentleman from Florida is recognized.
    Mr. McCollum. I would like to know if there is anything you 
have seen in the record that would indicate that you believe 
Betty Currie lied in the testimony she gave that we have in the 
record.
    Mr. Craig. Congressman, the answer is I am aware of nothing 
in the testimony suggesting that Ms. Currie or Vernon Jordan 
lied.
    Ms. Jackson Lee. Parliamentary inquiry.
    Mr. Frank. Mr. Chairman, it's my time.
    Mr. Sensenbrenner. It's not your time until I recognize. 
The gentleman from Massachusetts, Mr. Frank.
    Mr. Frank. Thank you, Mr. Chairman. That was very 
important.
    Mr. Craig, I wonder if you might like to answer the 
accusations. I must say with Mr. McCollum I had trouble, 
because it seemed to me there was a mixture of grand jury and 
deposition, and it wasn't clear which was which. And while Mr. 
McCollum obviously did not want you to respond to that, 
understandably, I would like you to respond.
    Mr. Craig. I will try to be very quick, Congressman Frank.
    Mr. Frank. Why? He wasn't.
    Mr. Craig. And thank you. First let me say, Congressman 
McCollum, that we are going to file with the committee today a 
written response which I think will address every single one of 
those allegations that you just went through. You can find them 
consolidated on pages 18 and 19 of Mr. Starr's presentation 
before this committee.
    And there are two things that I think are very important to 
get straight. One is that the characterization of the 
President's testimony in each one of those incidents is 
inaccurate.
    And the second thing is that you have mixed up grand jury 
testimony with civil deposition testimony in very dangerous and 
misleading ways. And I hope--I heard you answer questions over 
the weekend, and I was very pleased with your response on the 
issue of separating allegations of perjury on the civil 
deposition from allegations of perjury in the grand jury. And I 
hope we can have further conversation about that.
    Mr. Frank. Thank you, Mr. Craig, because I think it is 
important to separate them out. There was some allegations of 
grand jury perjury which clearly went beyond anything Kenneth 
Starr charged the President with. And the notion that Kenneth 
Starr was too soft on the President is a new one to me, even 
this late in the proceedings.
    Before I get to that, I would like to say two procedural 
points. People have criticized you for not calling witnesses. 
Well, the Majority had the ability to call witnesses. And I 
must say I take exception, I must tell my friend from Florida, 
to the suggestion that Vernon Jordan might have been lying. I 
think Vernon Jordan is a man of great integrity. His testimony, 
of course, completely supports the President's position and 
refutes the accusations. And if you think Vernon Jordan was 
lying, I don't think so, but have the courage to call him up 
here and defend himself.
    I think that kind of imputation raising the issue about 
Vernon Jordan's integrity without calling him forward is a 
great error. I understand why you don't want to call him 
forward, because I think he would make mincemeat of that 
accusation.
    Let me just say, Mr. Craig, with regard to grand jury 
perjury, as I understand it, there were three accusations of 
grand jury perjury from Mr. Starr. One was, am I correct, that 
Ms. Lewinsky said that the sexual activity began in November of 
1995 and the President said February of 1996?
    Mr. Craig. That's correct.
    Mr. Frank. That that was one of the accusations of the 
grand jury perjury?
    Mr. Craig. That's correct.
    Mr. Frank. I wonder if anybody here as a lawyer would think 
that a charge would be brought--this is more than 2 years after 
that has happened. Nothing turned on that. In other words, Ms. 
Lewinsky did not reach a certain age in the interim that would 
have made it more or less legal; is that correct?
    Mr. Craig. That's correct.
    Mr. Frank. The second question--the second charge of 
perjury is one that I have trouble understanding. Am I correct 
that it was--and I think we ought to differentiate, because Mr. 
McCollum listed a number of things that he said were 
perjurious; Mr. Starr only had three.
    The second one was when the President told the grand jury 
that he believed in the deposition that the definition excluded 
certain kinds of sexual activity, that he was lying; that he 
didn't really believe it. In other words, the accusation is 
when he said in August that he believed in January that the 
definition excluded certain kinds of sex, that that was a lie. 
Is that correct that that's the second one?
    Mr. Craig. Yes, sir.
    Mr. Frank. I asked that because people have said where are 
the President's witnesses. Well, what witness could he bring to 
show that the sexual activity began in February rather than 
November? He admitted trying to conceal it. What witness could 
he bring to show that he really believed this in January? Do 
people think there was a secret witness that he said, hey, I'm 
only kidding, I don't really believe this. The fact is, there 
is no witness you could have believed.
    Last question. With regard to the obstruction, is it the 
case that everybody who was supposedly involved in the 
obstruction--Mr. Jordan, Ms. Currie, Ms. Lewinsky, and the 
President--all denied that obstruction of justice happened? And 
if you were in fact to prosecute the case, who in fact would 
you bring as a witness?
    Mr. Craig. That is the case. I wouldn't know how to 
prosecute this case. May I make one comment, Mr. Frank, since I 
still have time. I would urge the committee to remember that 
Mr. Ruff is coming. I am perfectly happy to deal with the 
committee's questions. But the purpose of this panel, in 
addition to my introductory comments, the purpose of the panel 
was to discuss some of the new ideas that I think these 
witnesses----
    Mr. Frank. Mr. Craig, you need to finish the sentence 
without any dependent clauses, under the rule.
    Mr. Craig. I'm done.
    Mr. Sensenbrenner. The gentleman from Massachusetts' time 
has expired. The gentleman from Pennsylvania, Mr. Gekas.
    Mr. Gekas. Mr. Chairman, I yield 10 seconds, I hope, to the 
gentleman from Florida.
    Mr. McCollum. Thank you very much for yielding. I wanted to 
make a point. I was not imputing Vernon Jordan's integrity. In 
fact, I was trying to corroborate the fact that he has been 
telling the truth, that I think is damaging to the President.
    Mr. Frank. Will the gentleman from Pennsylvania yield to me 
for 5 seconds?
    Mr. Gekas. No, I cannot.
    Mr. Frank. You could if you wanted to.
    Mr. Gekas. I really cannot.
    Mr. Sensenbrenner. The gentleman from Pennsylvania.
    Mr. Gekas. Professor Wilentz, your testimony has really 
astounded me, and I want to question you on one phase of it. 
You seem to indicate that if any one of us, any Member of 
Congress should vote for impeachment, there will always be the 
question in your mind as to whether we did it out of cravenness 
or under a resolution and study and analysis and conscience.
    And I hope that after this is over, that you take a roll 
call of those who voted and then analyze for us. It will take 
you 100 years to determine whether we did it out of cravenness 
or not. I think that's a despicable way to characterize, in 
advance, our possible vote on some serious note as this. That's 
number one.
    General Katzenbach, you seem to have placed a great deal of 
emphasis on the difference between a criminal offense and a 
political offense that is couched in impeachment. And I agree 
with you that it is substantially, if not totally, a political 
process.
    If the President of the United States refused to grant 
requests of the Congress time and time again, and the Congress 
felt that it should adjudge the President in contempt of 
Congress, you would consider that a political, not a criminal 
offense, would you not?
    Mr. Katzenbach. If it was an offense at all, it would be 
political, yes.
    Mr. Gekas. Pardon me?
    Mr. Katzenbach. If it was an offense at all, it would be 
political.
    Mr. Gekas. Yes. And so the Congress, if it felt on a series 
of contempt instances that it would proceed, you would not 
automatically discount that as an impeachable offense, would 
you? Would this not be a refutation or a knock in the eye to 
another branch of government that the President was indulging 
in?
    Mr. Katzenbach. It might be that, sir, but I don't think 
that the Constitution provides under high crimes and 
misdemeanors for refusal of the President to do what the 
Congress wants it to do. There are other ways with which the 
Congress deals with that problem. And, frankly, sir, this is 
simply not one of them. No, I would not regard that as grounds 
for impeachment.
    Mr. Gekas. So that you have no idea, as you testify here, 
what high crimes and misdemeanors might be?
    Mr. Katzenbach. Oh, I have a good idea; yes, sir.
    Mr. Gekas. You are saying that perjury, which would be a 
direct affront to the judicial process, could not be considered 
fairly by any of us as being an impeachable offense. If indeed 
giving false statements under oath in a judicial proceeding can 
be fairly characterized by many of us who are analyzing this as 
an affront to the other branch of government--meaning the 
judiciary, the judicial branch of government--you think that 
the commission of a statutory crime, common law crime of false 
statements under oath, or just obstructing justice by giving 
false statements under oath would not arise to an impeachable 
offense; is that what you're saying to us?
    Mr. Katzenbach. No, sir; that's not what I'm saying. I'm 
saying that all of those could be impeachable offenses if the 
effect of that was to destroy public confidence in the ability 
of the President to play his role in the government.
    Mr. Gekas. And you say that the fact that he confronts the 
judiciary and attacks the judiciary by virtue of a perjury 
would not be an attack on the constitutional system, is what I 
hear you saying.
    Mr. Katzenbach. That's not what I'm saying. You hear it, 
but it's not what I'm saying.
    Mr. Gekas. I'm not hearing right.
    Mr. Katzenbach. That's correct, sir.
    Mr. Gekas. But would you agree that we have a difference of 
opinion, then? We would not be craven if we decided that 
perjury committed by the President of the United States, if so 
concluded in a judicial proceeding involving the rights of a 
fellow American citizen, would amount to an impeachable 
offense?
    Mr. Katzenbach. If--the red light is on, Mr. Chairman. How 
can I answer it?
    Mr. Sensenbrenner. Quick answer.
    Mr. Katzenbach. A quick yes? My answer is, no, sir.
    Mr. Sensenbrenner. A quick answer.
    Mr. Katzenbach. Oh. It would be an impeachable offense, 
sir, only if the effect of that was regarded by the Members of 
Congress as so serious that it destroyed public confidence in 
the ability of the President to play his role in government.
    Ms. Jackson Lee. Mr. Chairman, I do have a parliamentary 
inquiry.
    Mr. Sensenbrenner. The gentleman's time has expired. State 
your parliamentary inquiry.
    Ms. Jackson Lee. The inquiry, Mr. Chairman, is this is the 
only time that the President has the opportunity to present his 
case to this committee and to the American people. I noticed 
that Mr. Gekas asked a question or made a comment of Professor 
Wilentz. I do think it is important to allow witnesses to 
respond to either comments or questions made to them.
    Mr. Sensenbrenner. That is not a proper parliamentary 
inquiry. And how the 5 minutes would be allocated and enforced 
was stated by Mr. Hyde at the beginning of the meeting.
    Ms. Jackson Lee. I appreciate that, Mr. Chairman. Is there 
any way for the professor to answer the question?
    Mr. Sensenbrenner. Nobody objected at that point in time. A 
subsequent questioner, if they feel that it is important that a 
witness give an answer to a question that there was no time to 
answer, can decide in his or her best judgment whether to 
reiterate that question. That's what Mr. Frank did in response 
to some of the statements that Mr. McCollum made. I think that 
that's the way we will be able to allow the President to spend 
more time presenting witnesses rather than responding to 
parliamentary inquiries.
    Mr. Rothman. Parliamentary inquiry.
    Ms. Jackson Lee. I maintain a continuing objection.
    Mr. Rothman. Mr. Chairman, parliamentary inquiry.
    Mr. Sensenbrenner. The gentleman from New Jersey.
    Mr. Rothman. Thank you, Mr. Chairman. I want to point out, 
inquire of the Chair, whether the procedures adopted by the 
Chairman, Mr. Hyde, when he was sitting where you are, with 
regards to the panel called predominantly by the Republican 
Majority, will prevail in this panel when the President's 
counsel has called its panel.
    In particular, Chairman Hyde chose, when the Democrats were 
asking questions of Republican experts and Democratic experts 
on the last panel, to allow each member of the panel to respond to our 
questions even when we did not specifically ask them questions. And I 
wonder why today the present Chair is changing that procedure and not 
allowing the panelists to respond.
    Mr. Sensenbrenner. That is not a proper parliamentary 
inquiry.
    Mr. Rothman. It is an inquiry of fairness, Mr. Chairman.
    Mr. Sensenbrenner. The Chair will state that he is merely 
enforcing the rules that were outlined by Mr. Hyde at the 
beginning of the hearing, which no one objected to.
    The Chair now recognizes the gentleman from New York, Mr. 
Schumer.
    Mr. Schumer. Thank you, Mr. Chairman. And you know as we 
come close to finishing these proceedings and going to a vote, 
I guess most people assume to regard it as an assured 
conclusion on the floor of the House, I am sort of befuddled by 
the direction with which we go. And I would like to direct some 
questions at all of the panelists in this regard.
    We are ready in this committee, and maybe in the full 
House, for the second time in our history to pass articles of 
impeachment to the Senate. And there are maybe 20 or 30 people 
who haven't really committed, whose minds aren't made up. They 
tend to be the so-called moderate Republicans. And at least to 
read from the newspaper statements of those moderate 
Republicans, what has pushed them in more of a direction to do 
the unthinkable, or what was unthinkable a few weeks ago and is 
still probably unthinkable to most of the American public, are 
two things: one, that the President didn't apologize in a 
fulsome way enough. I mean, one of these swing votes is saying 
please, Mr. President, apologize fully, and then I won't have 
to vote for impeachment. The other is that the answers to the 
81 questions submitted by this committee weren't direct enough.
    And so what I worry about, I would say to this panel and to 
all of my colleagues in the full House, since I think this 
committee is already--sort of what we are doing is we are going 
through motions, but it seems minds are made up. But I say to 
my colleagues that we may, the American people may wake up next 
week and find out that the Congress impeached the President for 
not being contrite enough to certain Members of Congress.
    I just don't get that, because it seems to me that the 
standard of what the President did, and whether what he did 
reaches high crimes and misdemeanors, should be totally 
irrelevant to a level of contrition. You may judge the 
President as what kind of man he is by the level of contrition, 
but not whether he should be impeached, or by whether the 
President answered a series of questions here directly enough. 
Unless someone wants to allege that in the answers to the 
questions, perjury was committed as well. And I haven't heard 
anybody allege that.
    So I would like to ask each of the panelists and 
particularly the constitutional experts, the professors, but 
all of the panelists, in your legal opinion, even in your 
political opinion, does the contrition of the President go to 
whether the President should be impeached? Does the level of 
apology, the fulsomeness of apology, the sincerity of apology, 
should that be entering into one's mind as to whether the 
President should be impeached?
    And, similarly, should the President's answers to a list of 
questions, assuming that no perjurious statements were made in 
answers to those questions, and I guess, I don't know if they 
are technically sworn under oath and made a standard to 
perjury, but just assuming that, should that go to whether we 
should impeach the President as well?
    So maybe Professor Wilentz or Ackerman or Beer first.
    Mr. Wilentz. Maybe I can reply to your question, too, Mr. 
Gekas.
    Mr. Schumer. Well, do that on his time, please.
    Mr. Wilentz. The answer is, no, it should not. There is no 
constitutional standard for lack of contrition. The ways in 
which--and my comments about cravenness, et cetera, were 
directed towards that process of getting those moderates 
perhaps to get in line. If any standard other than the 
constitutional standard of high crimes and misdemeanors becomes 
the reason for a vote for impeachment, that vote is, to my 
mind, a dereliction of constitutional duties.
    Mr. Schumer. So level of contrition would not go to whether 
someone committed a high crime or misdemeanor, by any stretch 
of the imagination?
    Mr. Wilentz. Absolutely not. Absolutely not.
    Mr. Schumer. Do you agree with that, Professor Ackerman?
    Mr. Ackerman. Yes. The operational question is whether the 
conduct alleged represents a clear and present danger to the 
foundations of the Republic. Contrition, it seems to me, does 
not enter into that. Nor would the answer to these 81 
questions----
    Mr. Ackerman. That's correct.
    Mr. Schumer [continuing]. Which don't deal with the acts of 
the President for which we're examining impeachment.
    Do you agree with that, Professor Beer?
    Mr. Beer. Yes, I agree. It seemed to ask him to come and 
confess things which he didn't do and does not think he did. I 
wouldn't call that contrition.
    Mr. Schumer. Do you have any comments on this, Mr. Craig?
    Mr. Craig. I agree with you, Mr. Schumer. You will not be 
surprised to know that I agree with you, Congressman.
    Mr. Schumer. No. I mean since there's a minute left, it 
seems to me people are looking to avoid the direct, bald, naked 
confrontation with whether we should impeach or not when 
they're coming up with these kinds of answers. You better be 
convinced in your own head that these actions either imperil 
the Republic or at least meet a standard of high crimes and 
misdemeanors, and not look for an excuse like the President 
didn't apologize enough or he didn't answer someone's question 
directly enough. It's almost trivializing what ought to be a 
very sacred process.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from North Carolina, Mr. Coble.
    Mr. Coble. I thank the Chair. Gentlemen, good to have you 
all with us.
    President Clinton, then-Candidate Clinton, assured us, I 
think it was in 1992, that he would bring to us an 
administration that was very ethical. In fact, he may have said 
the most ethical administration in history.
    Well, the President has developed a pattern of being 
evasive and being deceptive which has caused those words not to 
be prophetic. Now having said all of that, Mr. Craig, let me 
put a question to you, and I am doing this from memory, so if 
my memory is faulted, don't be reluctant to correct me.
    After the deposition for the Paula Jones case, I recall 
having read among my many notes here that the President 
contacted Dick Morris, the political consultant, to get his 
spin on it. This has turned into a spin operation. And it appears that 
Mr. Morris in a response to that question said, Mr. President, the 
American public will tolerate adultery, but they will not tolerate 
perjury. Well, at that point, the cow was out of the barn because he 
had already been deposed.
    The President denied under oath having involved himself 
with any intimate touching. Ms. Lewinsky consequently admits, 
very forthrightly, that there was, in fact, intimate touching. 
Now, both these statements were given under oath, under sworn 
oath. Do you have any opinion, Mr. Craig, as to who's lying? 
Because it seems inevitable that one of those parties is lying. 
And you may not have an opinion to that.
    Mr. Craig. Congressman, I represent the President of the 
United States. And the President of the United States has said 
and testified about that activity. And I accept his word about 
that. The problem for those of you who are here in a fact-
finding capacity is precisely that problem. There is no other 
way to determine or corroborate--or corroborate the testimony. 
It's an oath-against-oath, a ``he says/she says'' situation. 
This is hardly, I think, the kind of issue that the House of 
Representatives should send to the Senate for a trial before 
the American people to determine whether or not the President 
of the United States should be removed from office.
    Let me just make one comment if I might, Congressman.
    Mr. Coble. Sure.
    Mr. Craig. We intend today to file a very, very complete 
brief dealing with the law and the facts in greater detail, in 
a greater and more systematic way than we have ever done 
before. And then we are going to have Mr. Ruff to go through 
these facts when he is here all afternoon tomorrow.
    Mr. Coble. And I thank you for that, Mr. Craig. And, of 
course, the Senate will be the ultimate fact-finders in this 
operation, assuming it advances that far.
    Gentlemen, put on your alternative hats. I want to talk 
about censure. And I will excuse Mr. Craig. I will let one of 
you other four, if you will, come forward; not that you're not 
capable, Mr. Craig, but I have already given you time.
    There's a balloon being floated on this Hill labeled 
censure, and some are suggesting that attached to that would be 
a financial forfeiture or penalty. Now my constitutional 
anxiety becomes activated at this point. I think that would be 
vulnerable. I think it would probably amount to a bill of 
attainder. Can you all confirm or reject my anxiety process?
    Mr. Ackerman. Congressman, I think you are completely 
correct. Any financial sanction against a named individual by 
this Congress is a bill of attainder, and it doesn't matter 
whether it's Bruce Ackerman or Bill Clinton.
    Mr. Coble. I thank you for that. And, Mr. Chairman, I want 
you to know it can be done before the red light illuminates. 
And I yield back the balance of my time.
    Mr. Sensenbrenner. That is appreciated. The gentleman from 
California, Mr. Berman.
    Mr. Berman. Thank you very much, Mr. Chairman. Mr. Craig 
represents the President. I would like you to put aside his 
points and the points made before with respect to the factual 
allegations, and I would like you to assume for a moment that 
the narrative portion of the Starr report is true, and also for 
this purpose take the conclusions he draws from that narrative. 
And then as each of you have touched on in your testimony, I 
would like you very concisely to tell us why you don't think 
the sum total of those conclusions he draws from his narrative 
are not impeachable.
    I realize you've talked about this, but I would like to do 
it particularly in the context of the argument that is 
frequently made by those who have come to the conclusion that 
the President should be impeached; that, particularly, lying 
under oath has repercussions and consequences with regard to 
our constitutional system of government and respect for the 
judicial process and these kinds of issues. However you want to 
do it.
    Mr. Katzenbach. Let me be brief, Congressman. I am 
perfectly willing to take everything that Mr. Starr says and 
still conclude that that does not reach the level of high 
crimes and misdemeanors in this situation. I reach that because 
the purpose is to remove the President. The reason you have 
high crimes and misdemeanors as grounds for removing the 
President is that there is no confidence left of the public in 
his ability to conduct that office. And I do not believe--if 
you came to that conclusion, you would have to explain why it 
is that the public seems to still have confidence in the 
President.
    Mr. Ackerman. This committee does not sit as a grand jury 
of the District of Columbia. There is probably no person in the 
United States today who runs a greater risk in the year 2000 of 
an indictment for perjury than William Jefferson Clinton. You 
sir as the grand inquest of the Nation--and the question for 
you is whether the conduct alleged represents an assault on the 
fundamental principles of government. If this conduct 
represents that, our history over the last 2 centuries would be 
littered with bills of impeachment.
    Congress has exercised its responsibilities in a very 
restrained way. The most important fact is that over 2 
centuries, only twice has presidential conduct got up to the 
level of an impeachable offense. And so I think that this is 
simply, on the state of the evidence, just not nearly the kind 
of conduct that you, as opposed to the grand jury sitting in 
the District of Columbia, should consider.
    Mr. Wilentz. Yes, I think that unless this misconduct rises 
to the level of an assault on our fundamental political system 
that they are not impeachable, even if every one of the charges 
is true.
    I think, however, that the argument that we must impeach 
the President for symbolic reasons, that somehow this 
misconduct represents a breach in the seamless web of justice, 
is, too, nonsense. What it does is to confuse the process of 
impeachment with what our legal system is for, our system of 
courts. We try crimes in courts. We do not impeach people over 
mere crimes. That is a fundamental constitutional principle. It 
has been lost amidst all of this talk of symbolism.
    Mr. Beer. I couldn't improve on what my colleagues have 
said, but I will say it again. The thing to focus on is----
    Mr. Sensenbrenner. Professor Beer, could you please turn 
the microphone on so the court reporter can catch your words?
    Mr. Beer. I couldn't improve on what my colleagues have 
said. I will repeat it and say that the thing to do is to focus 
on the meaning of the word impeach, which means remove from 
office. It tends to--it is said so much, it tends to lose its 
power. But when you say these things, even as Nick Katzenbach 
has said, even if the Starr charges are true, they don't begin 
to outweigh the enormous damage of removing a President.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, under this process of ours, we inevitably 
have, I think, two sides, and each side feels strongly about 
representing their client.
    In this case we have individuals who feel strongly that the 
President did not commit an impeachable offense. We have other 
individuals who feel just as strongly that his wrongful actions 
did reach that level.
    If the system is functional, and I believe that it is, what 
we all hope is that the truth is going to shake out.
    Mr. Craig, my first question is this, you have admitted in 
your statement that the President did make, you call them, I 
think, evasive and misleading statements.
    Have you ever counseled the President to go before the 
American people and tell the whole truth and nothing but the 
truth, which is to say forget about the polls--in fact, it is 
likely that the White House conducted a poll to find out 
generally what you ought to say today--but forget the polls; 
forget the partisan politics; and no matter how much it hurts, 
level with the American people and tell the whole truth?
    Mr. Craig. Well, Congressman, let me just say that he has 
acknowledged the wrongdoing. He has himself acknowledged that 
he was evasive, that he misled people and that he went out of 
his way to conceal his conduct--if I could just finish what I 
am saying.
    Mr. Smith. Right. Mr. Craig, let me follow up on that by 
asking you this question then: Does the President intend to 
specifically correct any of those evasive and misleading 
statements that you have acknowledged that he has made?
    Mr. Craig. Well, I think he has gone a long way, 
Congressman, when he gave that statement on August 17 in which 
he made the painful admission and acknowledgment that he did, 
in fact, have----
    Mr. Smith. Right. Mr. Craig, he also said he regretted it. 
It is very easy to say you have regretted something after you 
have been caught. But my question was, specifically, is he 
going to go back and correct the record and correct any of 
those misleading and evasive statements?
    Mr. Craig. Congressman, I think he has, in fact, corrected 
the most central element of what he testified evasively about.
    Mr. Smith. Okay, Mr. Craig.
    Mr. Craig. That had to do with the relationship that----
    Mr. Smith. I appreciate your answer.
    Mr. Craig [continuing]. He denied and that he has now 
acknowledged, and he has told everybody that he was wrong in 
denying it.
    Mr. Smith. Mr. Craig, I understand all of that, but you 
have answered my question, and that is, I gather, there are no 
plans to go back and correct those false and misleading 
statements.
    Mr. Katzenbach, may I address my next question to you. I 
would like to read a statement by Leon Jaworski, who was the 
special prosecutor during the Nixon proceeding. And he wrote 
this: ``The President, a lawyer, coached Haldeman on how to 
testify untruthfully and yet not commit perjury. It amounted to 
subornation of perjury. For the number one law enforcement 
officer of the country, it was, in my opinion, as demeaning an 
act as could be imagined.''
    Wouldn't you agree with that statement, at least as it 
pertained to the situation in 1974?
    Mr. Katzenbach. I am not sure, Congressman, that I heard 
everything that you said. I am inclined to think that I would 
agree with what Mr. Jaworski said because I think he was saying 
you can have an impeachable offense whether or not it amounts 
to perjury.
    Mr. Smith. Right.
    Let me read a couple of more statements. This is a 
quotation from the Lewinsky proffer: ``At some point in the 
relationship between Ms. Lewinsky and the President, the 
President told Ms. Lewinsky to deny a relationship if ever 
asked. He said something to the effect that, if the two people 
who are involved said it didn't happen, it didn't happen.''
    And then this as well: Ms. Lewinsky has testified that on 
December 17th, 1997, when she and the President discussed her 
possible appearance in the Jones case, the President told her, 
quote, ``You know you can always say you were coming to see 
Betty or that you were bringing me letters.''
    In your judgment, didn't the President's actions amount to 
coaching a witness to testify falsely?
    Mr. Katzenbach. As you have quoted them, Congressman, I 
wouldn't think so. But I am not trying to trivialize that. If 
that is true, that was the wrong thing to say.
    Mr. Smith. I heard your answer as part of--let me state----
    Mr. Katzenbach. It does not amount to grounds for 
impeachment.
    Mr. Smith. Let me say to you that I think 99 percent of the 
American people would consider this to be tampering with a 
witness, which is a serious felony and might well be an 
impeachable offense.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Boucher.
    Mr. Boucher. Thank you very much, Mr. Chairman.
    I share the view that this morning was very eloquently 
expressedby General Katzenbach that the impeachment power was 
not intended for the punishment of an individual for his conduct. He 
can be punished even if he is President in the same manner as any other 
citizen in our criminal courts.
    The impeachment power is designed to advance the national 
interest and to remove from office an official whose conduct is 
so severe that he threatens the Nation.
    This committee in its 1974 report in the Watergate inquiry 
on a broad bipartisan basis concluded that the impeachment 
power can only be used for conduct that is seriously 
incompatible with our constitutional form of government or the 
performance of the constitutional duties of the office of the 
President. Any other use of the impeachment power falls short 
of that high standard.
    I am concerned that some Members of the House may view the 
application of a lesser standard as appropriate, that they may 
think that the House should simply send to the Senate for trial 
any charges for which there may be probable cause that an 
offense may have been committed, and then leave to the Senate, 
as the trier of fact, the resolution of the matter.
    I would like to ask for your opinions of that view of the 
impeachment standard, and I would also welcome your thoughts on 
the gravity of the act of the House alone approving articles of 
impeachment. In considering whether to apply a higher or a 
lower standard of what conduct is impeachable, should the 
Members of the House consider the harm to the Nation that House 
approval of articles of impeachment will cause? Should Members 
consider the divisiveness and the polarization that will occur 
pending a Senate trial and during the trial in the Senate? 
Should they consider the fact that for months the Congress and 
the President will be diverted from the real business of this 
Nation?
    So there are three questions that I would pose to you. 
First, should the House view its standard as probable cause or 
something higher?
    Second, what harms will occur to the Nation based on the 
House approval alone of the articles of the impeachment?
    Third, should those harms be considered by the Members of 
the House in deciding the proper course on approving articles 
of impeachment given that the protection of the Nation is the 
ultimate test?
    And I would like to begin with Professor Ackerman.
    Mr. Ackerman. I think that the standard, so far as evidence 
is concerned, should be clear and convincing evidence. This is 
not a normal grand jury indictment. You are indeed correct, 
Congressman Boucher, that what you are doing is deciding 
whether the Nation's political attention will be diverted for a 
year.
    In the case of a normal grand jury, there is no great 
public interest in preventing an indictment. Here, there is a 
great public interest in diverting--against diverting attention 
away from normal poliical problems. So you are absolutely 
right, that the standard has to be high; the evidentiary 
standard should be clear and convincing, and it is, therefore, 
very difficult to evaluate little snippets of testimony without 
understanding the much larger context.
    The second crucial point is that a vote of impeachment is 
itself a terrible political precedent for the next generation 
or two. If this dramatic lowering of the standard from the 
historical examples is tolerated, every time we have one party, 
let's call them the Democrats, in control of Congress, and a 
Republican President in the year 2001, there is going to be an 
overwhelming political temptation to exploit a moment of 
political vulnerability for the President to once again use a 
low standard for high crimes and misdemeanors.
    Mr. Boucher. Professor Wilentz, let me ask you, if I might, 
in the time remaining, would you care to comment on the harm to 
the Nation that the mere act of the House passing articles of 
impeachment might cause?
    Mr. Wilentz. I have really little to add. I mean, it is 
true that it will open up the possibility for future Presidents 
to be subject to harassment by Congress' caprices if it so 
desires.
    But also I should add that as representatives of the 
people, you should be well aware that the public has shown 
again and again and again that it has no stomach to watch this 
nauseating spectacle continue. To ignore that, I think, is 
something that no Congressman ought to do.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Mr. Craig and other members on the witness panel today, 
thank you for being here.
    Mr. Craig, do you believe our legal system is dependent on 
telling the truth?
    Mr. Craig. Absolutely. I think it is very important.
    Mr. Gallegly. Thank you, Mr. Craig.
    Do you believe that perjury represents an attack on the 
integrity of our judicial system?
    Mr. Craig. It certainly is not consistent with the high 
standards of the judicial system.
    Mr. Gallegly. Thank you, Mr. Craig.
    Mr. Craig, on Meet the Press on Sunday, November the 22nd 
of this year, just a couple of weeks ago, Tim Russert asked 
you, do you believe the President, President Clinton, ever lied 
under oath? And your statement was, no.
    Do you stand by that?
    Mr. Craig. Yes, sir.
    Mr. Gallegly. Mr. Craig, you concede that the President's 
testimony in the Jones case was evasive, incomplete, misleading 
and even maddening. How could his testimony be those things 
without being a lie?
    Mr. Craig. There is one element that's absolutely central 
to the elements of a perjury offense, and that is an absolute 
intent and knowledge that what you----
    Mr. Gallegly. Pardon me, Mr. Craig.
    Mr. Craig. Excuse me.
    Mr. Gallegly. Are you saying that all lies are perjurious 
then?
    Mr. Craig. No, I am not. I am talking about the elements--
--
    Mr. Gallegly. We are dealing with lying, and now you are 
bringing in the issue of perjury.
    Mr. Craig [continuing]. Of specific intent.
    He did not intend to help. He did not intend to volunteer. 
He tried, I think, to answer accurately in a very narrow way.
    You may conclude, Congressman, that he did not succeed. I 
can understand what he was trying to do and how he read that 
definition. He may not have been successful. I think we could 
defend his testimony in any court in this country.
    Mr. Gallegly. Mr. Craig, I appreciate your assessment as a 
very capable lawyer and as someone who has studied the law, I 
imagine, the majority of your life. Could you please giveme in 
as succinct a manner as is humanly possible your definition of what it 
means when you hold up your right hand and you swear to tell the truth, 
the whole truth and nothing but the truth, so help you God?
    Mr. Craig. It means what the words of the oath are clearly 
intended to mean, the truth, the whole truth and nothing but 
the truth.
    Mr. Gallegly. At this point, do you believe that the 
President has told the truth, the whole truth and nothing but 
the truth, so help him God, to the American people?
    Mr. Craig. I do not think he violated the oath knowingly 
when he testified in the Jones deposition.
    Mr. Gallegly. Do you think he has violated his oath to the 
American people in telling the truth, the whole truth and 
nothing but the truth?
    Mr. Craig. I disagree with your sense that he did. He did 
not violate his oath.
    Mr. Gallegly. Thank you very much, Mr. Craig.
    I think probably one of the problems that we are dealing 
within the President's defense today is that any reasonable 
analysis shows that the President lied on several occasions in 
both the deposition and the grand jury testimony.
    For example, in the deposition of January 17th, the 
President was asked, ``Have you ever given any gifts to Monica 
Lewinsky?'' He answered, ``I don't recall.''
    Yet, just 2\1/2\ weeks before the deposition, President 
Clinton had given Miss Lewinsky six gifts: a marble bear's 
head, a Rockettes blanket, a Black Dog stuffed animal, a small 
box of chocolate, a pair of joke sunglasses and a pin of the 
New York skyline.
    The question was important because it goes directly to the 
issue of a cover-up by the President and possibly his attempt 
to influence the testimony of a witness.
    We have all heard that the President has an extraordinary 
memory. However, at the same time we are expected to believe 
that he does not remember giving six gifts to Miss Lewinsky 
just 2\1/2\ weeks earlier, and, oh, by the way, when the 
President gave the gifts to Miss Lewinsky, he knew that she was 
on the witness list for the Jones sexual harassment case.
    Quite frankly, this is an insult to our intelligence and 
frankly indicates that the President is still not telling the 
truth.
    Mr. Chairman, I yield back.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    My question is for Professors Wilentz and Ackerman. 
Gentlemen, I want to follow up sort of on what my colleague Mr. 
Boucher asked about standards of proof. We have heard quotes 
that we just have to see if there is credible evidence, send it 
over to the Senate, let them be the trier of facts.
    In my view, that simply transforms the role of the House 
into a rubber stamp for the special prosecutor, just a 
transmission belt, and it is incorrect.
    We have also heard other comments. Special Prosecutor 
Smaltz, after Mr. Espy was acquitted, said that indictment by 
itself is a deterrent to corruption, as if you seek to punish 
someone by indictment. And a member of this committee was 
quoted as saying that impeachment itself, even if not followed 
by conviction, even if you know that there is no real 
possibility of a conviction, is a punishment for misconduct, a 
scarlet letter, even if the Senate acquits, and even if you 
know there is no possibility the Senate will, in fact, convict.
    Now, we know that the Canons of Legal Ethics say that it is 
unethical for a prosecutor to seek an indictment if the 
prosecutor does not believe that he can get a jury to convict 
the defendant.
    Could you comment on the view that it is proper to seek an 
impeachment as a punishment for improper conduct, even if you 
know or think that the evidence will not produce a conviction 
by the Senate?
    Mr. Wilentz. Let me start, Congressman Nadler, by quoting 
Oliver North's attorney, Brendan Sullivan, or paraphrase him 
rather, to say that Congress, or rather, the House of 
Representatives, is not a potted plant. You are not just 
sitting here passing things along to the Senate. To see that as 
your role, I think, is a violation of your oath of office. It 
certainly goes towards that, your oath to uphold the 
Constitution. That is what you are here for. And if you are 
derelict in that, if you back off from that, out of fear, out 
of desire just to get it over with----
    Mr. Nadler. So it is not like a grand jury, if there is any 
probable cause?
    Mr. Wilentz. No. This is no more like a grand jury than an 
impeachment is like a normal jury trial. It is not. They are 
two different species.
    Mr. Nadler. Could you comment on the second half of the 
question?
    Mr. Wilentz. Could you remind me of that?
    Mr. Nadler. The second half of the question is the 
propriety of voting for impeachment as a punishment in and of 
itself, and if you think that the Senate probably will not 
convict on the evidence there?
    Mr. Wilentz. Historically that just runs against the entire 
tenor of what impeachment has been about. There has never been 
a case where a House of Representatives has decided to move on 
an impeachment proceeding with the idea that the Senate would 
not convict. The entire reason--I think Elliot Richardson said 
this every eloquently the other day: A vote to impeach is, in 
effect, a vote to remove.
    Mr. Nadler. And briefly, Professor Ackerman and Attorney 
General Katzenbach, on the second half of that question?
    Mr. Ackerman. It is especially inappropriate when you know 
that the 106th House is going to have to vote on it again. And 
if there is no reason to believe that the 106th House would be 
willing to vote an impeachment, this is to trivialize the 
impeachment process completely.
    Mr. Nadler. So you think it is improper to vote for 
impeachment if you don't think the Senate would be likely to 
convict?
    Mr. Ackerman. Or if the next House won't, won't confirm 
you.
    Mr. Nadler. Attorney General?
    Mr. Katzenbach. It seems to me that nothing could be more 
improper than to use the impeachment process as a punishment, 
and that is what you are suggesting. It is absolutely clear 
constitutionally that however bad the acts, impeachment is not 
a punishment. It is to remove somebody from office, the 
President or a judge or somebody else.
    Mr. Nadler. So do you think it would be proper or improper 
to vote for impeachment, even if you thought the President 
should be removed from office, if you thought thelikelihood the 
Senate would remove him from office was nil?
    Mr. Katzenbach. If you met the standards, if the House met 
the standards of impeachment as a high crime and misdemeanor, 
if those were met and sincerely met, then I would think simply 
to consider what the Senate would do might be a factor in the 
voting, but not necessarily from a matter of principle.
    Mr. Nadler. Anybody else want to comment on that?
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Beer. Again, this points to the political and 
constitutional consequences. I mean, this is not just something 
that is happening now. This goes on down and into the future 
history of the relation of the Congress and President. It is a 
further attack on the separation of powers, this entire 
precedent. I entirely agree with what my colleagues said.
    Mr. Nadler. Thank you very much.
    Mr. Sensenbrenner. The gentleman from Florida, Mr. Canady.
    Mr. Canady. Thank you, Mr. Chairman. I want to thank the 
members of this panel for being here today.
    I will candidly state that with the exception of Professor 
Ackerman's argument concerning the procedural status of the 
resolution of impeachment passed by this House, I didn't find 
any new arguments advanced with respect to the grounds for 
impeachment or the proper circumstances for impeachment, but I 
appreciate your being here.
    I want to say something about that issue, but before I do 
that, I want to also thank Mr. Craig for indicating that we 
will soon be receiving an exhaustive defense in writing of the 
President's conduct that's set forth in the record. And I am 
not going to dwell on that, but I do want to ask one question, 
which just stands out to me, of Mr. Craig.
    Mr. Craig, in the President's deposition last January, he 
was asked this question: ``At any time, were you and Monica 
Lewinsky alone together in the Oval Office?''
    He answered, ``I don't recall.'' He gave kind of an 
extended discussion there about working on the weekends, in 
which he indicated to me, ``it seems to me she brought things 
to me once or twice on the weekends.''
    There was then a follow-up question: ``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?''
    Answer from the President: ``Yes, that's correct.''
    Now, Mr. Craig, is it your position here today, on behalf 
of the President, that when the President gave those answers in 
the deposition, he was telling the truth?
    Mr. Craig. That's correct, Congressman. He answered the 
question that it was possible that he was alone with her. This 
is in the civil deposition. So the description that I gave of 
that civil deposition is accurate. It was evasive; it was 
misleading; he tried to be narrowly accurate, but, Congressman, 
he did not violate his oath.
    Mr. Canady. Mr. Craig, let me just say this: I read it. It 
is here in writing. I believe this is an accurate transcription 
of what took place. This is in the public domain. It seems to 
me that the President unequivocally denied that he had any 
specific recollection of being alone with Miss Lewinsky. And 
for you to contend today that that is truthful I think is not 
credible. That's just an observation.
    There are other questions about other parts of the record 
that I am sure we will focus on as we move forward with this, 
but I must candidly state that I don't see how anyone in this 
country could believe that that was a truthful answer in light 
of all of the evidence that is before us.
    Let me address the issue about the standards for 
impeachment, and I think it is important that all of us 
acknowledge that not all criminal acts are impeachable. No one 
here contends that.
    We also understand that impeachment should not be for 
trivial matters. Impeachment, we all understand, is a grave 
step to take. And, yes, I believe, and I believe most of the 
members of the committee understand, that we need more than 
probable cause to move forward with an impeachment. We need 
convincing evidence. But I believe that on the record before 
us, we have convincing evidence of a pattern of lying under 
oath and obstruction of justice. I can't detail that here, but 
I believe that's in the record, and we will discuss that. I 
think we need to look at the effect of such conduct on the 
system of government.
    I refer back to the report of the committee in the Nixon 
inquiry. It 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 governmental process, adverse 
impact on the system of government. I believe that there is a 
convincing case here of such an adverse impact.
    Let me quote, finally, Chief Justice Jay, who delivered the 
following charge to a grand jury. He said, ``independent of the 
abominable insult which perjury offers to the Divine Being, 
there is no crime more extensively pernicious to society. It 
discolors and poisons the streams of justice, and by 
substituting falsehood for truth saps the foundations of 
personal and public rights.''
    He goes on to say----
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Canady. Thank you.
    Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, earlier this morning I mentioned a motion 
that I would like to introduce. The motion would have been, had 
it been in order, that I move that the committee establish a 
specific scope of inquiry prior to the White House's rebuttal 
of still undefined allegations. If it shall be necessary to 
expand the scope of inquiry, then such expansion shall be 
permitted by majority vote of the committee.
    In addition, once specific allegations of inquiry have been 
designated, the committee shall hear from witnesses with direct 
knowledge of these allegations before it considers any articles 
of impeachment.
    When that is in order, Mr. Chairman, I would like to 
introduce that.
    But in the meanwhile, I would like to ask Mr. Craig whether 
or not he has been given a list of allegations, noting that Mr. 
Starr's original report had 11 allegations, he came back with 
10. Mr. Schippers, the Republican counsel, came up with 15; our 
Democratic counsel came up with three. Kathleen Willey has been 
mentioned as a possible scope. Campaign finance reform was in 
one day and out the next. Insult by the virtue of the response 
to the 81 questions has been mentioned as an impeachable 
offense, or lack of candor.
    Do you have a list of the allegations that you are 
responding to?
    Mr. Craig. We do not, Congressman. And may I just say one 
thing about that problem, which I think has been highlighted by 
what Congressman Canady just did. Particularly when allegations 
are being made about perjury, it is very important to 
particularize what the false statement is or what the alleged 
testimony is that is perjurious. And if this committee is going 
to be considering those kinds of articles, it would be of 
benefit to the world as well as to this individual, trying to 
serve the purpose of a defense lawyer, to know precisely what 
it is that the President said in the grand jury that is 
supposed to be perjurious. This is the way, in fact, it is the 
common pleading way, that you deal with indictments for perjury 
or allegations of false testimony.
    Mr. Scott. Okay. Much has been said about 17 boxes of 
material. It is my understanding that you have been given 
access to about a third of that material. Is that right?
    Mr. Craig. I think we have been given some access, yes.
    Mr. Scott. But not entirely?
    Mr. Craig. We are not allowed to take notes or to make 
copies.
    Mr. Scott. Okay. Mr. Ackerman, you indicated--I think you 
acknowledged in your testimony that there is precedence for 
carrying over impeachments from one Congress to the next. Is 
there any question about the need to appoint managers by the 
House in the new Congress? Is there any question about that 
aspect of it?
    Mr. Ackerman. There is only one case of carrying over in 
the last 65 years. That's the Hastings case. The previous 
carry-overs are the trial of Pickering in 1804, which is the 
high point of no due process throughout the entire--this was 
the worst possible precedent in the history of the United 
States. And then there was Judge Louderback, I think it was in 
1933, which was just before the 20th amendments--this was sort 
of the final revenge of the lame duck Congress. So there is 
only one case.
    Mr. Scott. The question is is there any new question that 
the new House would have to appoint managers?
    Mr. Ackerman. Absolutely. And in the Hastings case, the new 
House appointed managers. So there is absolutely no precedent 
for holding over the managers appointed by one House to the new 
House.
    Mr. Scott. The other question I have is I would like to 
ask, I guess, Professor Wilentz, the title of the offense has 
been mentioned as the impeachable offense. Can you comment on 
why the title of the offense should not be used as the measure 
of whether it is an impeachable offense but the underlying 
behavior?
    Is perjury an impeachable offense? Usually it is perjury, 
because you lied about bribes and things like that, that we 
ought to be looking at?
    Mr. Wilentz. Under some circumstances, perjury is plainly 
an impeachable offense.
    Mr. Scott. How do you measure--rather than the title, what 
do you look to to determine whether it is an impeachable 
offense?
    Mr. Wilentz. When it goes to a fundamental assault on 
political institutions. When it goes to, as Mason said, in the 
Constitutional Convention, when it is a crime against the 
state. That is the spirit of the Constitution, as well as the 
letter.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Scott. Without that, it is not an impeachable offense?
    Mr. Sensenbrenner. The gentleman from South Carolina, Mr. 
Inglis.
    Mr. Inglis. Thank you, Mr. Chairman.
    Mr. Craig, you said in your testimony that you would 
address the factual and evidentiary issues directly today and 
tomorrow. You haven't done that yet. I hope we have got more to 
come. I understand that what you are talking about here today, 
in this panel, is the standards of impeachment, but as some of 
my colleagues have pointed out, there is nothing new here, 
nothing new at all, except possibly Professor Ackerman's 
statements. So we have heard all the rest of this before.
    Now I think you have raised a level of expectation, and now 
I am counting on you to meet that over the next--today and 
tomorrow. You need to meet that expectation. It is very unusual 
for the White House spin operation to go out there and set up 
expectations they can't fulfill. Usually they do it the 
opposite. So you have now established a very high expectation 
that I am going to count on you to meet.
    Now, you also said in your testimony that the President, if 
we--you are asking us to believe this, that the President has 
insisted and personally instructed his lawyers that no 
legalities or technicalities should be allowed to obscure the 
simple moral truth that his behavior in this matter was wrong.
    Mr. Craig, did the President lie about never being alone in 
the Oval Office with Monica Lewinsky?
    Mr. Craig. Congressman, I have made a distinction between 
what was morally wrong and what was----
    Mr. Inglis. No, no, Mr. Craig. Answer that question. This 
is what--let me give you a little bit further background now.
    Mr. Craig. Yes.
    Mr. Inglis. This is a question put to the President in the 
deposition. And I understand you are drawing a distinction, a 
technicality, a nicety, as you said, between grand jury and 
deposition. So let me be absolutely clear, we are talking here 
deposition.
    Paula Jones' lawyer asked the question: At any time were 
you and Monica Lewinsky alone together in the Oval Office?
    The President's answer: I don't recall. And then he goes 
on.
    Now, corroborating evidence in Ms. Lewinsky's evidence 
indicates that there were eight occasions when the President 
and Monica Lewinsky had sex in the Oval Office.
    I ask you again now: Did the President lie when he said, I 
don't recall?
    Mr. Craig. Congressman, he goes on in that same passage to 
testify that it was possible, in fact, that he was alone. So 
the characterization of the testimony that he never was alone 
or he didn't recall is not accurate. The characterization that 
you just gave to it, and that Mr. Starr gave to it, and that 
the referral gave to it is not an accurate characterization of 
the President's testimony in that deposition.
    Mr. Inglis. You know, I am reading the whole thing, and I 
don't see what you are talking about. It seems to me that you 
are relying on these technicalities.
    Now, Mr. Craig, did he lie to the American people when he 
said, I never had sex with that woman? Did he lie?
    Mr. Craig. He certainly misled and deceived.
    Mr. Inglis. Wait a minute now. Did he lie?
    Mr. Craig. To the American people, he misled them and did 
not tell the truth at that moment.
    Mr. Inglis. So you are not going to rely--the President has 
personally assisted you, I understand, instructed--has assisted 
and personally instructed you, I suppose, that no legalities or 
technicalities should be allowed to obscure the simple moral 
truth.
    Did he lie to the American people when he said, I never had 
sex with that woman?
    Mr. Craig. You know, he doesn't believe he did, and because 
of the--may I explain, Congressman?
    Mr. Inglis. He doesn't believe that he lied?
    Mr. Craig. No, he does not believe that he lied because his 
notion of what sex is is what the dictionary definition is. It 
is, in fact, something you may not agree with, but in his own 
mind his definition was not----
    Mr. Inglis. Okay. I understand that argument.
    Mr. Craig. Okay.
    Mr. Inglis. This is an amazing thing, that you now sit 
before us and you are taking back all of his apologies.
    Mr. Craig. No.
    Mr. Inglis. You are taking them all back, aren't you?
    Mr. Craig. No, I am not.
    Mr. Inglis. Because now you are back to the argument--there 
are many arguments you can make here. One of them is he didn't 
have sex with her; it was oral sex, it wasn't real sex. Now, is 
that what you are here to say to us today, that he did not have 
sex with Monica Lewinsky?
    Mr. Craig. What he said, to the American people was that he 
did not have sexual relations. And I understand you are not 
going to like this, Congressman, because you will see it as a 
technical defense or a hairsplitting, evasive answer, but 
sexual relations is defined in every dictionary in a certain 
way, and he did not have that kind of sexual contact with 
Monica Lewinsky.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Craig. Let me just finish. So did he deceive the 
American people? Yes. Was it wrong? Yes. Was it blameworthy? 
Yes.
    Mr. Sensenbrenner. The gentleman's time has again expired.
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman.
    My colleagues, the last three Republican colleagues on the 
committee, Mr. Gallegly, Mr. Canady and Mr. Inglis, have asked 
a series of questions about whether the President lied or 
misled or didn't lie or mislead.
    What I would like to find out from Mr. Katzenbach, 
Professor Ackerman, Professor Wilentz and Professor Beer is 
even if you assume that everything that they said was correct, 
that the President did, in fact, lie on those occasions, would 
it be an impeachable offense?
    Mr. Katzenbach. Congressman, my answer would be that it 
clearly would not because of the nature of that lie. That seems 
to me to be the view that the American people take, and it is 
the view that I would take.
    Mr. Watt. Professor Ackerman.
    Mr. Ackerman. Impeachment is the ultimate weapon of the 
people's representatives against an executive out of control. I 
do not believe that this evidence is evidence of an executive 
out of control, assaulting our basic liberties.
    Mr. Watt. Professor Wilentz.
    Mr. Wilentz. We have answered this question on various 
occasions. I am happy to answer it again. Even if President 
Clinton did all of the things that have been alleged, the worst 
of them, they do not rise to the level of impeachment. They may 
rise to the level of crimes for which our court system is set 
aside to prosecute.
    This procedure has other meanings, other purposes, and to 
confuse the two is to violate, I believe, the spirit of the 
Constitution.
    Mr. Watt. Professor Beer.
    Mr. Beer. That was my point also. I think the legal case is 
terribly weak, but even if it were true, it would have to be 
taken in consideration--in the context. I think that is what we 
have tried to call attention to, that impeachment means remove; 
it means eliminate this administration. It means holding the 
record and the promise of this Presidency at naught, and I 
think that in that context, if you balance the pluses and the 
minuses there, overwhelmingly there is no reason to remove this 
President from office. That's the point to keep. And to do so, 
it would severely damage the democratic process.
    Mr. Watt. Professor Beer, I think you have hit on something 
in your testimony that is not very exciting in the public 
context to talk about, but I think is extremely important. And 
that is the difference between a parliamentary form of 
government and a democratic form of government, which we have, 
or a constitutional form of government, which we have.
    I wonder if you could elaborate on that distinction and the 
implications that that distinction has in this context.
    Mr. Beer. I am so glad you asked me that, because it does 
need to be said. The crucial thing in the separation of powers 
is that each of the offices, the legislature and the executive, 
is directly responsible to the voter. That's the point. In a 
parliamentary system, there is an intermediate body, namely the 
Parliament, and that makes it quite different.
    I mean, therefore, when the legislature acts against the 
executive in our system, it is, so to speak, taking the place 
of the basic relationship, which is one directly between the 
President and the people. And it has to, therefore, act with a 
special caution and look at the whole record, and put itself in 
the place of the people, and try to judge as they would judge.
    Mr. Watt. Thank you, Mr. Chairman. I yield back the balance 
of my time.
    Chairman Hyde [presiding]. I thank the gentleman.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Professor Wilentz, last week, Harvard Professor Alan 
Dershowitz testified under questioning before this committee 
that perjury before a Federal grand jury, if proven, would be 
an impeachable offense. Do you agree with Professor Dershowitz 
that perjury before a Federal grand jury, if proven, would be 
an impeachable offense?
    Mr. Wilentz. I am not sure that I would, actually.
    Mr. Goodlatte. Let me ask you this: I think the prevailing 
opinion is----
    Mr. Wilentz. May I add, though, that I am not sure that it 
wouldn't be, either. It depends on the character of the 
offense, et cetera.
    Mr. Goodlatte. All right. Let's accept that.
    What about perjury that would, if the President were 
subject to prosecution and imprisonment while President, result 
in his imprisonment?
    Mr. Wilentz. You mean, an offense--well, any offense might 
involve imprisonment.
    Mr. Goodlatte. Yes. And if the President of the United 
States, like an ordinary citizen, could be prosecuted and, if 
convicted, incarcerated, would you then think it appropriate 
for the Congress to remove the President from office while he 
is in prison, to use the impeachment power for that purpose?
    Mr. Wilentz. I think it would be an improper use of the 
impeachment power.
    Mr. Goodlatte. You would leave him in prison as the 
President of the United States?
    Mr. Wilentz. The President of the United States would be 
tried for--by my understanding, would be tried for that crime 
after he left office. That's the point of that.
    Mr. Goodlatte. Now, there is also a prevailing opinion that 
a President of the United States can exercise the power of 
pardon on himself.
    Mr. Wilentz. I would defer to a lawyer on that one.
    Mr. Goodlatte. All right. Well, if the President canindeed 
exercise that power, and I think the language in the Constitution would 
support that argument because with regard to pardons, Article II says, 
have the power to grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment. Therefore, if the 
President has the power to pardon himself, and the prevailing opinion 
is that he cannot be prosecuted until after he leaves office, your 
position regarding the responsibility of this committee, with regard to 
use of the impeachment power, when the President commits a serious 
offense that could result in his incarceration if he could be 
incarcerated, is to say that the President of the United States is 
above the law?
    Mr. Wilentz. No. There has to be a distinction, which I 
have been trying to get across to the committee and to everyone 
else, between impeachment and crimes and being tried for 
crimes. There are two distinct processes.
    Mr. Goodlatte. Certainly they are, but the Constitution 
contemplates that with the power of pardoning, that obviously 
the President could be removed for crimes, because it says that 
he can't exercise that power in cases of impeachment.
    Mr. Wilentz. Well, I am going to defer to my lawyer friend 
over here.
    Mr. Goodlatte. Before we go on to Mr. Ackerman, let me just 
say to you, sir, that you have made this novel argument that 
the Senate cannot continue with this action unless the 106th 
Congress votes out additional articles of impeachment; that 
while I appreciate your making the argument, and while you have 
acknowledged that it is a moot argument because this committee 
can act, and we don't know what action the 106th Congress will 
take or what the Senate will take, that your statement is based 
on absolutely no historical precedent, because every single 
precedent available to this committee is exactly to the 
contrary, both--not only in the 19th century, but you cite as a 
basis for changing that precedent the 20th amendment to the 
Constitution.
    I have the 20th amendment here before me, and there is 
absolutely nothing in the 20th amendment which indicates that 
the precedents of the 19th century would be changed. And in 
fact, after that amendment was adopted, the Congress in the 
late 1980s in the Alcee Hastings case, the Senate, receiving 
the articles of impeachment in one Congress, conducted the 
trial in the next Congress, without the House of 
Representatives enacting or adopting or sending to the Senate 
new articles of impeachment.
    So there is absolutely no constitutional foundation for 
your argument.
    Mr. Ackerman. May I answer that question, Mr. Chairman?
    Mr. Goodlatte. Yes, please.
    Mr. Ackerman. In the last 65 years, since the passage of 
the 20th amendment, there have been no lame duck impeachments. 
Of course, there are no precedents because Congress has acted 
with restraint for the last 65 years.
    Mr. Goodlatte. Reclaiming my time, that is absolutely 
incorrect with regard to the Judge Hastings impeachment----
    Mr. Ackerman. Because he is impeached by a normal Congress.
    Mr. Goodlatte. Because articles of impeachment were passed 
in one Congress and tried in the second Congress.
    Mr. Ackerman. Hastings was impeached by a normal Congress 
in the month, I think, of August or something of this kind; not 
after an election. This is the first time since the 20th 
amendment----
    Mr. Goodlatte. It was still a new Congress,
    Mr. Ackerman.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Goodlatte. Overturned the results of the previous 
Congress.
    Chairman Hyde. The gentleman's time has expired.
    The gentlelady from California, Ms. Lofgren.
    Ms. Lofgren. I appreciate the panel's report today, and I 
am mindful, once again, of the severe gravity of this matter. 
And although some of the questions today have been about 
details of sexual activity that I think we all find 
embarrassing, underlying that kind of embarrassing discussion 
is the very real prospect, I would say the likelihood, that 
this committee may vote for articles of impeachment and that 
the House of Representatives may also vote articles of 
impeachment. And I think many in the country are not aware of 
that.
    I just came in from California last night, and people at 
home, many of them, were asking, ``well, when is this going to 
be wound up?'' They thought it was over, and people are busy 
getting ready for the holidays. So I think this hearing today 
is very important in terms of informing not just the committee 
and the House, but the American public that something is 
actually happening.
    Now, I think your report matches what the Founding Fathers 
had in mind, what Mason and Madison meant, that impeachment is 
a remedy for the Nation. For the well-being of the Nation is, 
in fact, what we need to be considering.
    And I am also mindful that impeachment trials take a long 
time. The trial of Andrew Johnson took 3 months, and that was 
before television. It would take even longer today. The Chief 
Justice must preside, and I have been thinking that if we 
proceed with this trial, will that mean that the Supreme Court 
wait to hear any cases for a period of 6 months or more? Will 
all of government be gridlocked?
    So as we measure the threat of this alleged conduct to the 
country and whether it meets the constitutional standard for 
impeachment, is it appropriate to also measure the impact of a 
trial on the well-being of our Nation?
    Now, I have a question for Mr. Katzenbach. I am from 
Silicon Valley, and the venture capitalists who spoke to me 
last week when they found out that this was proceeding were 
extremely concerned and alarmed about the potentially severe 
economic impact, in their view.
    You were the senior vice president for IBM, I think their 
senior legal advisor, for many years. I have the IBM research 
division in my district, and the disk drive division. Can you 
give us some insight for what the implications for an 
impeachment trial might be for the economy? I am of course 
especially concerned about high tech, but not just that.
    Mr. Katzenbach. Let me say two things, Congresswoman 
Lofgren. I think your point----
    Chairman Hyde. Would you move the microphone over.
    Mr. Katzenbach. Sorry, Mr. Chairman.
    Chairman Hyde. Thank you.
    Mr. Katzenbach. I think your point about what kind of agony 
and disruption that you put the country through, if there is an 
impeachment process, simply underlines what I think members of 
this panel have been saying with respect to the importance of 
the definition; not whether or not the President had sex or 
lied about it, but what it does as faras the government is 
concerned.
    On your second question, the people involved in business 
and the stock markets and so forth want certainty, and I can 
think of nothing much worse than pushing them into an 
uncertainty that would go on for some period of time while we 
rehearsed what has been rehearsed a dozen times already, and I 
would think that that would be a consideration, as the first 
points were that you made, in terms of how serious, in terms of 
the public will, is the conduct of the President? Is it so 
serious that he must be removed from office and we go through 
the long process of a potential conviction, a trial and a 
conviction in those circumstances?
    It was set up that way because of the importance that was 
attached to the idea in our system of removing the President.
    Ms. Lofgren. So if I may, would you then say it is not 
inappropriate to weigh that there may be implications for the 
stock market? Should we consider that our economy, especially 
high tech, is oriented towards exports, and that might fall 
apart, in the balancing of whether to move forward?
    Chairman Hyde. The gentlelady's time has expired.
    Ms. Lofgren. Could the witness answer yes or no?
    Chairman Hyde. The gentleman from Indiana, Mr. Buyer.
    Mr. Buyer. Thank you, Mr. Chairman.
    I have several questions. Let me ask each of the witnesses, 
how much notice did you have that you would be here testifying 
today?
    Mr. Katzenbach. I had about 48 hours, something of that 
kind.
    Mr. Ackerman. Saturday morning.
    Mr. Wilentz. Saturday.
    Mr. Buyer. And Saturday?
    Mr. Beer. Monday, I think yesterday.
    Mr. Buyer. Yesterday you received notice that you would be 
a defense witness for the President?
    Mr. Beer. Yes.
    Mr. Buyer. And who contacted each of you?
    Mr. Katzenbach. I was contacted by the gentleman to my 
right.
    Mr. Ackerman. Mr. Craig.
    Mr. Wilentz. Mr. Craig.
    Mr. Beer. I am sorry. It was Sunday afternoon, but I was at 
such a huge cocktail party that I had to--that I had to call 
Mr. Craig back Monday morning to find out what it was about.
    Mr. Buyer. Were you invited to the cocktail party?
    Mr. Beer. I would have loved to have had you there.
    Mr. Wilentz. He gave the party.
    Mr. Buyer. Oh, you gave it.
    All of you are here, it appears, hastily called, to defend 
the President. When the President spoke to the American people 
on August 17th, some of the President's comments in his attacks 
of Judge Starr were not taken very well by the American people. 
So I view these witnesses as if the President were here 
speaking; this is his position; this is his defense in this 
case.
    And one of them has come here and said that if there are 
Members of the 105th Congress who, based upon the reading of 
the law and the facts, believe that the President's conduct 
rises to the level of impeachment, then we are zealots, 
fanatics and cowards.
    Now, that type of name-calling by the President's defense 
is disappointing and demeaning to this proceeding.
    Earlier, Mr. Craig mentioned about the witness tampering, 
and said that at the time--there was some questioning by Mr. 
McCollum with regard to Betty Currie, and Mr. Craig said, well, 
she was not on a witness list, nor was there a proceeding at 
the time.
    I have Title 18, section 1512 here, and I am sure that you 
also have read it. This criminal statute very clearly says that 
for the purpose of this section, an official proceeding need 
not be pending or even about to be instituted at the time of an 
offense; very clear. So I would just disagree with your reading 
of the law here.
    I would also note, and I would like for you to comment on 
this, I believe that in my reading of the facts here, Mr. 
Craig, that the President endeavored to influence testimony of 
subordinates whom he knew to be potential witnesses in a 
Federal criminal investigation, systematically lying to them 
with the intent that they would relay these falsehoods to the 
Federal grand jury.
    One was John Podesta, who testified before the grand jury 
on January 23rd, that the President volunteered information to 
him concerning Ms. Lewinsky, even though he had not asked for 
that information. Specifically, the President told him that he 
had not had sex with Miss Lewinsky. Mr. Podesta also said that 
the President told him when Miss Lewinsky came to the White 
House, after she left her employment there, she came to see 
Miss Currie; that Ms. Currie had always been present or nearby. 
Mr. Podesta testified that he believed the President.
    Mr. Podesta testified also to the grand jury that he was 
present in the Oval Office on January 21st, together with 
Erskine Bowles and Sylvia Matthews, when the President told the 
three of them, quote, I want you to know that I did not have 
sexual relationships with this woman, Monica Lewinsky. I did 
not ask anybody to lie, and when the truth comes out, you will 
understand, end quote.
    Mr. Bowles testified to the grand jury the President made 
these statements and that he believed the President.
    Sidney Blumenthal testified before the grand jury that on 
January 21st, the President relayed a conversation that Mr. 
Clinton had with Dick Morris in which Mr. Morris speculated 
that President Nixon could have survived----
    Chairman Hyde. The gentleman's time has expired.
    The gentlelady from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Welcome back, Mr. Chairman. Thank you very 
much.
    Let me state on the record that I am sure my time will 
expire before I have had the opportunity to fully address the 
panel and to determine information that I think is vital.
    However, might I just simply say and raise my continuing 
objection to the limited time that the President has had to 
present his case, and say as well to the panel that I 
appreciate, I think it might have been the esteemed Mr. 
Katzenbach or Mr. Ackerman, who have noted that this is a 
process of completeness, this is a process in which we have the 
ultimate act, the removal of a President. So there is a, in 
quotes, prosecutorial process of which we in the House sit, and 
there is then the trial process. So it is as a whole. And you 
cannot bifurcate and separate one process from the other.
    Let me just note that under the Rodino committee, there 
were 17 days of hearings, some in executive session. Mr. St. 
Clair had 2 days for an opening statement. And likewise, let me 
also note that he was able to examine and cross-examine the 
witnesses.
    As Professor Beer has indicated, I hope that we do not fall 
to the idea that impeachment is a suitable activity for party 
politics.
    With that, let me ask a series of questions that I will 
apologize for their brevity, asking you to be brief because of 
the nature of the time.
    It is important for me, Mr. Craig, and I realize that I 
will have an opportunity to query Mr. Ruff--if you would just 
give me a yes or no answer, I would appreciate it simply 
because I realize that I will be more pointed with Mr. Ruff. 
First of all, I think we can acknowledge that the President has 
misled the American people. He said it. It has been said, and 
it has been noted.
    Do you so note today?
    Mr. Craig. Yes. Yes, ma'am.
    Ms. Jackson Lee. Do you also note as well that you have an 
understanding, when we talk about fact witnesses--and let me 
also say that as we sit as a prosecutorial body, as the Rodino 
committee sat, they called witnesses, in essence, to present 
their case. Since the movers in that instance were Democrats 
who moved for the impeachment of the President, they presented 
fact witnesses. In this instance, I would assume the movers of 
this action, the Republicans, would have likewise presented 
fact witnesses, and tragically they are redundant in their 
accusations of who has called fact witnesses, but yet they have 
called none, and I don't understand that. But I will ask you 
the question: Do you have knowledge that Ms. Lewinsky had a 
diary?
    Mr. Craig. I understand that she did.
    Ms. Jackson Lee. Do you have any knowledge of whether the 
President maintained a personal diary with his reflections, 
impressions and comments?
    Mr. Craig. I am unaware of any such document.
    Ms. Jackson Lee. Is it your understanding that a diary that 
Ms. Lewinsky had may have her reflections, impressions and 
comments?
    Mr. Craig. I would suppose that, yes.
    Ms. Jackson Lee. In the grand jury proceedings, as I 
understand, Ms. Lewinsky had such documents, and the American 
people who have not viewed the grand jury proceedings as they 
are now viewing this really have never been inside of grand 
jury proceedings. It is interesting that the grand jurors today 
have been silent on any indictments, but as we know the 
information there was questioning and determination of 
credibility of the witnesses. It is also my understanding that 
in that instance, Miss Lewinsky could refer to her impressions 
and announcements and characterizations in that particular 
proceeding.
    You can just simply answer, in the grand jury I assume a 
witness can refer to documents that they might have?
    Mr. Craig. I think she testified twice in front of the 
grand jury and was interviewed by agents of the Office of 
Special--of the Independent Counsel many, many times--perhaps 
19 times.
    Ms. Jackson Lee. And may have had the opportunity to refer 
to her documents?
    Mr. Craig. Yes.
    Ms. Jackson Lee. With that in mind, Mr. Chairman, I would 
simply say you have here a question of the ability to determine 
credibility of witnesses, where one has been able to refer to 
written, line-by-line definitions and characterizations; where 
another witness such as the President may have had to rely upon 
his recollection. Again, we go to the point of the whole 
question of credibility of witnesses.
    Ms. Tripp, are you familiar with a Linda Tripp, Mr. Craig?
    Mr. Craig. Yes, Congresswoman.
    Ms. Jackson Lee. Do you have any knowledge of a personal 
vendetta against Ms. Tripp that might have caused any actions 
on that person's part to protect herself?
    Can I hear you more loudly, sir?
    Mr. Craig. I know of no such vendetta, Congresswoman.
    Chairman Hyde. The gentlelady's time has expired.
    Ms. Jackson Lee. As I noted, and I hope that one day----
    Chairman Hyde. The gentleman from Tennessee, Mr. Bryant.
    Mr. Bryant. Thank you, Mr. Chairman.
    As a reminder to all who might be watching this, we have 
had a number of other professors from the history area, as well 
as law professors, who have disagreed with you gentlemen and 
your opinions that these types of conduct are impeachable 
offenses. As a matter of fact, Mr. Dershowitz last week said 
that lying before a grand jury, in his opinion, was an 
impeachable offense.
    I might also bring up this 400-signature letter that has 
been alluded to earlier, and in fact one of you gentlemen had 
written the introduction to that, saying this was about 
historians speaking as historians. Well, one of your 
colleagues, in fact two of your colleagues have the opposite 
view of that, and they say that this 400-signature statement is 
nothing of the kind; rather, it is an impostor. It places the 
stamp of professional scholarship on what is, at best, a purely 
partisan political tract. The only interesting question it 
raises is whether those responsible should be merely censured 
or impeached and removed from their professional chairs.
    One of you mentioned that were we to, quote, ``lower the 
standard for impeachment for such minor things as obstruction 
of justice and perjury, that the landscape would be littered 
over the last two centuries with impeached Presidents.'' But I 
don't recall any President ever being charged with perjury, 
lying under oath to a grand jury. I don't recall any President 
ever being charged with obstruction of justice, tampering with 
witnesses and these kinds of things, such as this President 
has.
    And in reference to the two professors I mentioned a moment 
ago, they make, I think, a very strong statement that is 
contrary to the fact that we seem to be lowering the standards 
for impeachment according to some of your opinions. They say 
that we would set precedent. That we would establish that 
Presidents who commit these crimes--let's talk about the 
President now--against the system of law that they are sworn to 
faithfully execute, will not be permitted to continue in office.
    If we don't impeach, in other words, do we really want to 
be at the mercy of future Presidents who believe otherwise? So 
I think there is definitely a two-sided coin here.
    And I want to ask Mr. Craig a couple of questions, I guess, 
while I have got some time.
    You are an attorney?
    Mr. Craig. Yes.
    Mr. Bryant. You represent the President?
    Mr. Craig. Yes, sir.
    Mr. Bryant. And as an attorney, you are bound by the 
applicable codes of professional ethics, and as an officer of 
the court you would be called on to preserve the court's 
integrity, would you not?
    Mr. Craig. That is correct, your Honor.
    Mr. Bryant. With that in mind, I want to ask you, what do 
you believe is the difference between willful lying to a 
Federal judge or grand jury and willfully misleading a judge or 
Federal grand jury?
    Mr. Craig. I think the criminal justice system is special. 
I think a grand jury investigation, there is a gravity----
    Mr. Bryant. Okay. Could you be specific, though?
    Mr. Craig. You asked me about the difference between a 
civil deposition where a Federal judge is presiding over a 
civil deposition? I may not understand the question, but I 
thought you asked me the difference between----
    Mr. Bryant. What is the difference between willfully lying 
and willfully misleading? You seem to make a distinction there.
    Mr. Craig. I am making a distinction between the grand jury 
as opposed to the civil case. Is that not the question you are 
asking?
    Mr. Bryant. No.
    Let me be as simple as I can. I am asking you what is your 
difference between willfully lying, which I understand to be 
perjury, and willfully misleading?
    Mr. Craig. I think that perjury is a word of art. It has 
definitions in the statute. It has elements of an offense that 
must be proven before a crime has been established, that 
includes a specific intent, knowingly to present false----
    Mr. Bryant. You notice I used the adjective ``willfully'' 
and--the adverb ``willfully'' in front of each of those, so the 
intent is there.
    I understood the President intended to mislead, evade, and 
give incomplete answers. He has said that. He was not going to 
volunteer information at that deposition because he felt their 
case was wrong.
    Mr. Craig. Let me just give you one example of a 
distinction.
    A perjury defense is complete if you can show that the 
answer was specifically accurate, even narrowly accurate. And 
absolute accuracy, even if you disagree with the 
interpretation, if the question is ambiguous and there is a 
possible answer that can be accepted as truthful, that is a 
complete defense to a perjury prosecution.
    Chairman Hyde. The gentleman's time has expired.
    The gentlelady from California, Ms. Waters.
    Mr. Rothman. Mr. Chairman, parliamentary inquiry.
    Chairman Hyde. Yes, sir?
    Mr. Rothman. I seem to recall when the Chair last presided 
over the previous panel, and the question was----
    Chairman Hyde. You are absolutely right. I was much more 
liberal, and I made the announcement regarding the 5-minute 
rule today because, frankly, people at your end of the table 
and at this end of the table never get to ask questions. It 
consumes over 3 hours under the strict 5-minute rule to 
complete the members' questioning.
    We have a large panel considering, the entire day; and I 
would like members to get a chance to ask questions.
    Mr. Rothman. Mr. Chairman, we ought to let the witness 
finish his answer, especially, coincidentally when it is the 
President's counsel bringing his defense. It strikes me as 
inherently unfair since this process started months ago, and 
this is a new practice for the Chair.
    May I respectfully ask that the Chair adopt its previous 
practice, when the Republican majority called witnesses, to let 
the experts finish their answers?
    Chairman Hyde. Mr. Rothman, that is unfair. I was as 
liberal for witnesses, Republican or Democrat.
    Mr. Rothman. Yes, you were. But why not today, sir?
    Chairman Hyde. Because we have a plethora, a swarm of 
witnesses. We have a lot of members who would like the 
opportunity to ask questions. And that is my way of doing it. 
Everyone treated alike. You, Ms. Jackson Lee, Mr. Bryant, Mr. 
Barr. I am trying to get through the day without going past 
midnight. So I would appreciate the gentleman's cooperation.
    Mr. Scott. Mr. Chairman, parliamentary inquiry.
    Chairman Hyde. Yes, Mr. Scott?
    Mr. Scott. Mr. Chairman, will the witnesses, at the end of 
the questions, be given an opportunity to give the answers----
    Chairman Hyde. Yes, I am trying to use my judgment. I 
thought I was----
    Mr. Scott. Mr. Chairman?
    Chairman Hyde. Please, let me respond to your remark.
    Mr. Scott. I haven't made the remark.
    Chairman Hyde. Okay. Who is next?
    Mr. Scott. Could I make the remark?
    Chairman Hyde. Well, if you have a remark to make, yes.
    Mr. Scott. Very brief.
    At the end of all of the questioning, could they have an 
opportunity to answer some of the questions they--answers that 
they might not have given because of the strict way that it is 
being handled, so that they are given 2 or 3 minutes to go 
through all the answers they might have given after everyone 
has had the opportunity?
    Chairman Hyde. I thank the gentleman.
    Ms. Waters?
    Ms. Waters. Do you want to start my time over?
    Chairman Hyde. Yes, we will start your time over.
    Ms. Waters. Mr. Hyde, you are not going to like this, but 
since there is so much talk about lying, I am going to read 
what you said about it in 1997 when President Reagan and his 
top national security advisors were accused of lying to 
Congress and the public about their secret arms sales to a 
terrorist state, it was Hyde who argued forcefully for a more 
nuanced view of lies and deception. ``Lying is wrong,'' he 
said, ``but context counts.''
    So I agree with Mr. Hyde on that.
    Let me just say that I think the most important thing that 
will come out of this hearing today is that time that this 
Congress is going to be tied up in dealing with this 
impeachment. I have long since decided that the pettiness that 
we are dealing with does not deserve this kind of attention. It 
doesn't make really a difference whether or not it was a little 
bit shaded when the President talked about being alone or the 
hat pin or the tee shirt. I think this Congress needs to get on 
with the business of this country.
    Mr. Hyde and members of the Republican Party told the 
Nation they were going to speed this thing up. They were going 
to do it quickly. They were going to hand the Nation, in 
essence, a Christmas present and get it behind us. November 3rd 
elections, even today, the polls show the American people are 
saying they do not want to impeach the President.
    I think the most important point that has been made here 
today by Professor Ackerman is, first of all, this should not 
spill over into the 106th Congress, and that the President 
probably, if it does, can have a motion to quash. I am thinking 
about all of the new members who will be coming on to this 
committee, and thank God, some of the members of this committee 
will be gone. It seems to me they will have a cause of action 
themselves, because it is not just a matter of what is on the 
floor. It is a matter of starting all over again. Everything in 
the 105th Congress will be dead.
    Members who will serve on the Judiciary Committee, who have 
not been involved in these hearings, have a right to be 
involved and to have their say; and new members should 
certainly make an issue of that. So if we envision going back 
again in the 106th Congress through the committee process, back 
to the floor, even to try and get to the Senate, with a 
different makeup of Congress, where some members even on the 
other side of the aisle will not be so inclined, what are we 
talking about in terms of a time frame?
    Even if it goes on to the Senate, and they hold a trial, 
and the Supreme Court will have to stop in the middle of them 
on a motion to squash, and there will be motions perhaps by the 
members. What are we talking about?
    And what do we do, God forbid, if in fact we have to take 
an action against Saddam Hussein, if in fact we have to take 
actions against nations who are poised to use nuclear power?
    Mr. Ackerman, let's talk about this time frame. Can we be 
tied up for another year in this mess?
    Mr. Ackerman. Definitely. The constitutional process is 
complex--but it is for a reason. The reason is that this is a 
tremendously important thing. It is very rare. It is only when 
things are really serious that impeachment is justified. And if 
a lame duck Congress wants to impeach, it cannot expect that 
its judgment will simply be accepted by the Chief Justice of 
the United States or the next House of Representatives who 
have----
    Ms. Waters. So possibly even before they would sit in 
action on the Senate, you would have a Supreme Court matter 
that would have to be dealt with on a motion to quash.
    Mr. Craig, do you think that is reasonable, that the 
President may want to challenge that if in fact this continues? 
Maybe that is an unfair question, but I am trying to get the 
American public to understand this quick down-and-dirty hearing 
that we are supposed to be doing. These articles of impeachment 
are not going to be so quick.
    Mr. Craig. Congresswoman, I would only point out that the 
argument has meaning only in the context of the 105th actually 
voting articles of impeachment out. And I would just hope that 
wisdom would prevail and such articles of impeachment would not 
be voted out of the House.
    Chairman Hyde. Mr. Chabot of Ohio.
    Mr. Chabot. Professor Wilentz, I want to quote from your 
opening statement. You stated that any Representative who votes 
in favor of impeachment, but was not absolutely convinced that 
the President may have committed inpeachable offenses--not 
merely crimes and misdemeanors, but high crimes and 
misdemeanors--will be fairly accused of gross dereliction of 
duty and earn the condemnation of history. You stated that, and 
I agree with you.
    Wouldn't it be fair, however, to also indicate that any 
Representative who votes against impeachment, but who is 
convinced that the President may have committed impeachable 
offenses--not merely crimes and misdemeanors, but high crimes 
and misdemeanors--will be fairly accused of gross dereliction 
of duty and also earn the condemnation of history?
    Mr. Wilentz. Absolutely.
    Mr. Chabot. Thank you.
    Over the last several weeks we have heard from many 
witnesses discussing what constitutes an impeachable offense. 
The one thing they all seem to agree on is that reasonable 
people can reach different conclusions. So the testimony before 
us today does not represent all thought on this important 
issue; it represents merely the thought of this particular 
panel.
    For example, I strongly believe that perjury is a crime 
against the state and can constitute an impeachable offense. In 
fact, we know that perjury was directly described as a high 
misdemeanor at its inception. This has been supported by many 
constitutional scholars that have testified before this very 
committee.
    Now, because most of the witnesses before us today did not 
address the facts of this case, I will turn my questions at 
this time to Mr. Craig.
    Mr. Craig, you have stated that you do not dispute the 
testimony of Ms. Currie; is that correct?
    Mr. Craig. That is correct.
    Mr. Chabot. Now, the President has admitted that following 
his deposition in the Jones case, he contacted Betty Currie and 
asked to meet with her the following morning. According to Ms. 
Currie's grand jury testimony, the President wanted her to 
agree with a series of statements that he made during the 
meeting. Currie said that they were more like statements than 
questions.
    According to Ms. Currie, the President made statements 
like: You were always there when she was there--meaning Monica 
Lewinsky--right? We were never really alone. And you could see 
and hear everything, right?
    Now, Mr. Craig, isn't it true that the President was trying 
to influence the testimony of Betty Currie because he knew that 
she might be called to give testimony in a Federal judicial 
proceeding; isn't that correct?
    Mr. Craig. Congressman, I have actually, I think, responded 
to this question earlier before, and I disagree respectfully 
with your interpretation of those events.
    Let me just say that I hope you will read the document that 
we are going to be submitting to you today.
    Mr. Chabot. I certainly will read that, but don't you think 
that the President, by his statement to Ms. Currie, was trying 
to influence her testimony; and wasn't that illegal?
    Mr. Craig. I do not. I do not believe that he was trying to 
influence her testimony. She was not going to testify.
    Mr. Chabot. Doesn't that constitute witness tampering?
    Mr. Craig. There was no witness tampering that was going on 
there, Congressman. There was no proceeding that could 
contemplate that she was going to be called. There was no 
reason for him to believe that either the OIC or the Jones 
people would be calling her as a witness.
    Mr. Chabot. Don't you think it would have been relevant, 
whether or not she and Lewinsky--or the President and Lewinsky, 
together or alone, wouldn't that be relevant to the ongoing 
testimony and investigation?
    Mr. Craig. Yes, but the question is whether he was 
tampering with the witness, Congressman. I would urge to you 
raise this again----
    Mr. Chabot. Let me just ask you one final question----
    Chairman Hyde. Mr. Chabot, let him answer the question.
    Mr. Chabot. I did, Mr. Chairman.
    Mr. Craig. I am trying to be constructive, and I am trying 
to be helpful and in fact deal with the facts.
    I would urge you to raise this, Congressman, with Mr. Ruff 
again after you have had a chance to see all the evidence that 
we present to you, that we try to explain what happened, how it 
happened and how it fits into the law. I think you might well 
be convinced that there could not have been any tampering of a 
witness here with respect to Betty Currie.
    Mr. Chabot. We will look at that with great interest, and I 
appreciate your testimony here this morning.
    I yield back.
    Chairman Hyde. I thank the gentleman.
    The distinguished gentleman from Massachusetts, Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman. And I would like to 
thank each member for coming before the committee and providing 
your testimony. I can imagine that given your perspective on 
this matter, it can be frustrating to testify before this 
committee because it is a foregone conclusion that the majority 
of the members of this committee on Saturday will take the 
incredibly historic step of voting articles of impeachment to 
impeach this President. And there is not a constitutional case 
that any of you can provide before this committee that would 
change that. There isn't a historical precedent that any member 
of this distinguished body testifying before the committee 
could present that could change that.
    Mr. Craig, I don't think that there is a fact that is in 
other parts of the testimony before the grand jury that you 
could present to this committee that would change that fact. In 
fact, there is nothing that any of the witnesses here today 
could say to this committee that would prevent the majority of 
this committee from voting to impeach the President of the 
United States on Saturday afternoon.
    But your testimony is important. It is important that the 
American public understand the gravity of what we face. It is 
important that the 20 to 30 Republican Members of Congress who 
truly have an open mind and are weighing the gravity of what is 
before our country, that they hear your testimony and see your 
testimony. Because the will of the American people is about to 
be ignored in the hope that the people won't care enough to say 
anything about it.
    Now, Attorney General Katzenbach, you have spoken about the 
will of the American people. As of today, 65 to 70 percent of 
the American people oppose impeachment, so it is hardly a 
surprise that the Members of Congress who are going to vote to 
impeach on Saturday have been telling us that public opinion 
and public consensus--indeed, the public interest--play no part 
whatsoever in this critically important impeachment process. Do 
you agree with this perspective on the role of public consensus 
in the impeachment process?
    Mr. Katzenbach. No, I do not, Congressman. In fact, it 
seems to me unusual and very important that the American people 
feel the way they feel about the office of thepresidency. It is 
a vital fact. And it would seem to me those who wish to ignore it might 
recall a quote from Berthold Brecht, which I will paraphrase, saying, 
Maybe we should elect a new public.
    Mr. Meehan. Well, I would hope--and one of the reasons I 
think your testimony is important is because I don't think--as 
my colleague from California mentioned, I don't think Americans 
have been focused on this. They think the election ended all of 
this, and they think we are just going through the motions to 
finish this up by the end of the year, and then we will go on 
with governing the country in January. But that is not the case 
at all.
    Mr. Katzenbach. And indeed it should happen.
    Mr. Meehan. And it should happen. But the reality is, this 
committee will vote to impeach the President on Saturday. I am 
struck not by the cases where this committee or the House has a 
whole decided to impeach, that is, Watergate and the Andrew 
Johnson case, but also I am struck by the cases where we failed 
to even commence an impeachment inquiry.
    I am talking about such examples as the Iran-Contra 
scandal, or to put it in a bipartisan perspective, President 
Johnson's deception about the Gulf of Tonkin incident in 1964, 
both of which went to the very core of the exercise of 
presidential power and at least threatened serious consequences 
for the country.
    Now, what does a failure to impeach in those instances tell 
us about whether we should impeach this President?
    Professor Ackerman.
    Mr. Ackerman. This is a central concern, because if your 
committee goes forward and impeaches President Clinton, the 
next time the political wheel turns and we have a Democratic 
Congress and a Republican President, will the Democratic 
Congress show the kind of restraint that it showed in the case 
of Iran-Contra?
    Well, I myself will be here saying, you should, but will 
they? Will they?
    This cycle of incivility, once it begins, will very, very 
quickly run out of control. That is why this is a tremendously 
important precedent.
    And, Congressman Meehan, what you were saying before is 
another way of saying, this is a lame duck Congress out of 
touch with popular opinion; and if there is a reasonable 
disagreement, as to the standards for impeachment, all the more 
reason that a lame duck Congress should not be making this 
decision.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Georgia, Mr. Barr. Mr. Barr, would you 
be generous enough to yield me 30 seconds?
    Mr. Barr. Certainly.
    Chairman Hyde. I would just like to comment to Mr. 
Katzenbach, your great line from Berthold Brecht about maybe we 
need to elect a new or better public, I was reminded by counsel 
of Lester Maddox's statement about what is wrong with the 
prisons, we need a better class of prisoners. Anyway, thank 
you.
    Thank you, Mr. Barr, for letting me indulge myself.
    Mr. Barr. Yes, sir.
    Mr. Craig, one of the faults of the White House, I think, 
is that they have a tendency, maybe this President personally, 
perhaps to break out the champagne or light up the victory 
cigar a little bit early sometimes, and I was hoping that that 
wouldn't be the case. But your remarks today in one particular 
area, among perhaps others, leads me to believe that you all 
still need to be a little bit careful.
    You keep saying--and you said it in your remarks today--and 
others who are defending the President keep saying that Mr. 
Starr has cleared the President on Whitewater. That is not the 
case. And if you will read his testimony before the Congress, I 
think you will readily see that that is not the case. He says 
very clearly, with regard to his exposition on Whitewater and 
his remarks before this committee and, in particular, regarding 
Mr. Hubbell, that that case remains open, that there remain 
very troubling questions about it.
    So I understand that in your zeal to defend the President, 
you would like it to become the reality that Whitewater has 
gone away, but it really hasn't; that remains an open case.
    When you have talked several times today both in your 
remarks, as well as in responses to questions by members of the 
panel today, you kept using the words ``evasive and 
misleading.'' Somewhere in the recesses of my memory as a 
prosecutor those rang a bell, and I went back to the Criminal 
Code, and indeed, I found why those rang a bell. They are the 
words that are used in both section 1512 of Title 18 of the 
Criminal Code, and that is tampering with witnesses that my 
colleague from Ohio was talking about, as well as in the 
definitions that relate to prosecutions under Title 18, section 
1512; and they talk specifically in terms of misleading 
conduct.
    I think if you will--in the same way that you urged Mr. 
Chabot to read the material that you are going to present 
later, I would urge you to go back and read the material that 
is already there, and that is Title 18 of the United States 
Code. I believe, in fact, the President very clearly has met 
both the definitional standards for misleading conduct, as well 
as the other elements of tampering with witnesses. And we don't 
need go into those over and over again. At least we don't here 
today. We will in the articles of impeachment, I suspect.
    But it may be satisfactory to your defense of the 
President, in your mind, that evasive and misleading answers 
regarding possible tampering with witnesses, tampering with 
evidence and so forth exonerates the President, perhaps in the 
same way that you think he has been exonerated on Whitewater. 
But the law is quite different. The law is very specific, and 
misleading conduct which includes misleading statements and so 
forth are very much contrary to the law and, I believe, would 
provide a proper basis for an article of impeachment.
    I would like to read to you on another matter, or refer you 
to the grand jury testimony or grand jury statements of Mr. 
Blumenthal. Sidney Blumenthal testified before the Federal 
grand jury the final time on June 25th of this year. The 
foreperson of the grand jury took the very unusual step of 
chastising Mr. Blumenthal because after an earlier appearance 
before that same grand jury, he deliberately misrepresented 
what had gone on in that grand jury. And then when he was 
subsequently called back before the grand jury, he was 
chastised directly on page 69 of that grand jury transcript by 
the foreperson of the grand jury.
    We all know, because it was also testified to under oath, 
that Mr. Blumenthal was hired by the President. Has 
thePresident fired Sidney Blumenthal? And why hasn't he, particularly 
in light of the fact that he has deliberately misrepresented the work 
of the grand jury?
    Mr. Craig. Congressman, I came here to testify about issues 
involving----
    Mr. Barr. Has Mr. Blumenthal been fired or is he still on 
the public payroll?
    Mr. Craig. Of course, he has not. Of course, he has not. I 
understand that Mr. Blumenthal and his lawyer have disagreed 
with the interpretation and the statements of the forelady as--
--
    Mr. Barr. Apparently you and the President do not?
    Mr. Craig. This is a matter that I think should be resolved 
between Mr. Blumenthal and his attorney and those----
    Mr. Barr. Well, it might be nice in your mind to 
compartmentalize these things, but I think it also indicated 
that you are not here today to provide complete and truthful--
without any trivialization context--answers today.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman.
    You know, earlier my friend and colleague from North 
Carolina, Mr. Coble, raised the issue of censure. And the 
response--I think he framed it in terms of a censure, rebuke, 
reprimand, condemnation, whatever, plus a fine; and I don't 
want to leave that particular issue in terms of--I know, or I 
think it is well known that I and other members of this 
committee, Democrats, intend to raise that issue during the 
markup. And I would just simply--and I am going to direct this 
question to everyone but Mr. Craig, and maybe one of you will 
take it.
    There is historical precedent for censure, and I suggest it 
would not be meaningless. I suggest it would be constitutional; 
I suggest that we did have a hearing on this matter. It was 
raised during a subcommittee chaired by the gentleman from 
Florida, Mr. Canady.
    I want you to know that I surveyed those 19 scholars by way 
of a questionnaire. The majority of those scholars indicated 
that it was constitutional and would be appropriate for this 
committee to consider.
    I would like to hear disagreement or agreement from any 
member of the panel as to those statements I just made.
    Mr. Ackerman. I agree that there is no constitutional 
problem with censure.
    Censure is not a meaningless thing. For example, the 
Senate's censure of Senator McCarthy in the 1950s was a very 
significant act that crystallized the moral sentiment of the 
Nation. I do believe, however, that a fine is a bill of 
attainder.
    Mr. Delahunt. Professor?
    Mr. Wilentz. I am not crazy about censuring a President as 
opposed to a Senator. I am not crazy about it for the reasons 
that Andrew Jackson stated in 1834, that it raises a 
possibility of a kind of danger to the separation of powers. 
However, that is a principle above and beyond the Constitution.
    There is no constitutional bar to censure. Anyone who 
proposes that has simply not read the Constitution clearly 
enough, because there is simply no bar to it anywhere there. 
You may censure by resolution anyone you care to, just as you 
can pass a resolution on virtually anything under the sun.
    Mr. Delahunt. I am going to direct this to Mr. Craig.
    There has been, in response to the question by the 
gentleman from South Carolina, Mr. Inglis, and he was 
suggesting that when the American--when the President appeared 
on TV and spoke to the American people that he misled and, in 
fact, he did lie to the American people.
    Let me just state that we have had previous American 
Presidents--I think my colleague to my right referred to Lyndon 
Johnson in terms of the Gulf of Tonkin resolution. During the 
course of our history, we have seen President Eisenhower lie to 
the American people about the U2 incident. President Franklin 
Roosevelt lied regarding lend-lease. It has been suggested very 
strongly that both Presidents Reagan and Bush lied to the 
American people regarding Iran-Contra.
    I would suggest, and I can understand in legal proceedings 
such as civil depositions or grand jury hearings, proceedings, 
that legalisms and legalistic language are absolutely important 
when one feels that they are being unfairly treated or 
improperly prosecuted. At the same time, Mr. Craig, I would 
suggest that the American people do believe that the President 
of the United States on that occasion lied to them, and I would 
suggest that he should be censured for that particular 
occasion, and I would urge you to go and discuss that matter 
with the President.
    Chairman Hyde. I thank the gentleman. The gentleman's time 
has expired.
    The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Thank you, Mr. Chairman.
    Professor Wilentz, I have listened to the entire panel, and 
I have listened carefully to your testimony. Now, not one 
panelist, save perhaps the President's counsel, has refuted any 
facts that are before this committee in this case. And in your 
case and in your testimony you did not refute one fact about 
the allegations of perjury that are before us, about the 
allegations of obstruction of justice that are before us, or 
about the allegation of abuse of power.
    So we need to remember, at least here this morning, that 
what we are dealing in and what you came armed with is a bunch 
of opinions. And like they say back in Tennessee, everybody's 
got those.
    But you will agree with all those statements, will you not?
    Mr. Wilentz. Except for the last one. There is a difference 
between opinion and scholarship. Anybody can have an opinion. 
What I reported here has to do with scholarship, which goes 
beyond that.
    Mr. Jenkins. Well, if there are learned opinions to the 
contrary, then they would balance one another out as far as 
this committee is concerned; is that correct?
    Mr. Wilentz. I should hope not. I don't think they balance 
themselves out at all. I think that the opinions expressed here 
by a far greater number of historians, for example, than any 
number that have come up to stand for the opposite view, is 
absolutely clear. There is not an equal division among 
historians about whether these charges rise to an impeachable 
offense. It is absolutely clear that the majority of American 
historians believe that they do not, on the grounds of their 
understanding of the Constitution. There are disagreements.
    Mr. Jenkins. Well, at any rate, you have voiced your 
opinions here this morning.
    Mr. Wilentz. I have voiced my scholarly conclusions.
    Mr. Jenkins. And you also voiced the opinion that anybody 
who voted for impeachment was going to be guilty of gross 
dereliction of duty and condemned by history.
    Mr. Wilentz. I did not. I said nothing of the kind.
    Mr. Jenkins. You did not? Well, what did you say?
    Mr. Wilentz. I said anyone who voted for impeachment, who 
was not absolutely clear in his or her mind that the President 
may have committed an impeachable offense, that would be gross 
dereliction of duty. Mr. Chabot agreed with me.
    Mr. Jenkins. And if one holds that sincere belief, then, he 
would not be guilty?
    Mr. Wilentz. Absolutely. Absolutely. If they sincerely 
believe--as I said, there are many members of this committee 
who sincerely believe that the President has committed 
impeachable offenses--you would be derelict if you didn't vote 
for impeachment.
    Mr. Jenkins. And I believe that you told Mr. Chabot that 
anybody who voted no, who held those sincere beliefs, would be 
similarly guilty of gross dereliction.
    Mr. Wilentz. Anyone who believes the President has 
committed an impeachable offense and votes against impeachment 
is similarly derelict. Absolutely.
    Mr. Jenkins. Now, you testified that at least some perjury 
can be an impeachable offense; is that correct?
    Mr. Wilentz. Yes, I did.
    Mr. Jenkins. And you made some effort to distinguish those 
types of perjury and distinguish one type of perjury from 
another.
    Mr. Wilentz. Uh-huh.
    Mr. Jenkins. And my question is where can you show us in 
the statutes, where can you show us in the law of this land, 
that there are degrees or classes of perjury? Where can you 
show us from the statutes?
    Mr. Wilentz. I am not an expert or a lawyer. I cannot point 
to the statutes with the clarity that you can.
    Mr. Jenkins. Well, you had a opinion.
    Mr. Wilentz. Yes, absolutely, but it has nothing to do with 
the character of the statutes. It has to do with an 
understanding of how the framers of the Constitution understood 
what were impeachable offenses or not. Under that--under the 
Constitution, it is clear that there are crimes that are 
impeachable offenses and those that aren't, and perjury in 
every instance is not. Only those examples of perjury which 
actually attack the vitals of the state, the vitals of our 
political system, are impeachable offenses. And I base that on 
my reading of the Constitutional Convention of 1787, the 
writings of the framers, and the Constitution itself. That's 
the point.
    Mr. Jenkins. Can you provide this committee with those 
distinctions made in that Constitutional Convention?
    Mr. Wilentz. Sure. George Mason made it very clear. When he 
proposed high crimes and misdemeanors following bribery and 
treason, the wording he proposed was crimes against the state.
    Chairman Hyde. Gentleman's time has expired.
    Mr. Jenkins. Thank you, Mr. Chairman.
    Chairman Hyde. The gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Thank you, Mr. Chairman. I am struck by each 
committee hearing that we have, how more and more this 
committee becomes out of touch with the American people and 
with what the American people care about, and even with what 
the American people see as the offense by the President in 
regard to this whole national trauma.
    And I think the questions today that best illustrate how 
out of touch this committee is with the American people are the 
two kinds of questions that are often put and have been put to 
Mr. Craig today. And that is: Why, Mr. Craig, as the 
President's lawyer, haven't you put forth evidence, put forth 
testimony, as to why the President didn't perjure himself 
regarding his testimony with respect to Monica Lewinsky?
    And a corollary issue, and that is: Why, Mr. Craig, or do 
you, Mr. Craig, believe the President or do you believe Monica 
Lewinsky when they both said the characteristics of their 
relationship? And I believe Mr. Craig's answers today basically 
said, respectfully, I believe the President.
    But I think what the American people are saying, which I 
think is much more pertinent to this hearing is: Who cares? Who 
cares where the President did or did not touch Ms. Lewinsky. 
Not because they don't care about lying, but they understand 
that an impeachment inquiry should not be determined by whether 
or not Ms. Lewinsky lied or the President lied or whether they 
both lied about where the President may or may not have touched 
her.
    So in that regard, I think Congressman Meehan's comments 
couldn't be more pertinent. This committee's conclusion is a 
foregone conclusion. This committee will vote out at least one 
count of impeachment. That is a done deal. But for those 
Republicans--and if there are some, and I hope and believe and 
pray that there are--that still have an open mind, would 
Professor Wilentz or Professor Ackerman talk to them, talk to 
them about what a Senate trial is going to look like?
    I have this vision of Senator Hatch asking Monica Lewinsky 
or our esteemed Chairman asking Monica Lewinsky about the 
specifics of their relationship or her relationship with the 
President and that being determinative of a perjury count.
    Would you speak to the American people about what that 
Senate trial is going to look like, please? Either gentleman.
    Mr. Ackerman. Well, one should first know that at the trial 
of Andrew Johnson, no Senator asked any questions. All 
questions were asked by the managers of the House. And the 
Senate was mute, mum, in a very solemn situation here, which I 
would expect would go on for many, many months.
    One of the more interesting phenomena would be to see how 
the Senators managed this burden of silence. But this isnothing 
like we have ever seen. Someone asked me before when I was asked to 
testify. The answer is Saturday. But I have been studying impeachments 
for many, many years. And I literally tell the American people, you 
have no idea of what the Senate trial is going to look like. It will 
disrupt the Nation's business, I would expect, for a year.
    Mr. Wexler. Disrupt the Nation's business for a year? Would 
you agree with that Professor Wilentz.
    Mr. Wilentz. I would. And also look around. In the 1868, 
there were not the photographers and the film crews and the TV 
cameras and media circus that surrounds--that has been 
surrounding this proceeding from the beginning. It has gone 
beyond a question of simply what is going to happen in the 
room. It is what goes on throughout the country. And that to me 
is almost as dangerous as what is going on here in this 
Chamber. And that is a vast difference from 1868. If 1868 was 
like a pebble in the pond, this is going to be like a boulder 
thrown into the pond.
    Chairman Hyde. The gentleman from Arkansas, Mr. Hutchinson.
    Mr. Hutchinson. Thank you, Mr. Chairman. First of all, Mr. 
Craig, you mentioned the concern about specificity with regard 
to the perjury charges. I just want to let you know what is in 
my mind with regard to the perjury allegations. Most of those 
are set forth in the Starr referral--allegations of perjury in, 
both the grand jury and the civil deposition. But in addition, 
I wanted to alert you to an area that I do not believe is 
mentioned in the Starr referral and that is in the deposition 
testimony of the President in the Paula Jones case. I can't 
give you the page citation, but the following statement is made 
by the President: ``Because, Mr. Bennett, in my lifetime I have 
never sexually harassed a woman.''
    I just wanted to alert you and put you on notice that that 
statement is of concern to me in terms of a perjury allegation, 
and that is something that should be addressed.
    Mr. Craig. Could I make one comment, a helpful comment I 
would hope? I would hope, Congressman, that when you bring 
forward these questions tomorrow afternoon that you don't rely 
on the characterizations in the Starr referral as to the 
President's testimony, and that you can talk with some 
specificity as to what the President actually testified.
    Mr. Hutchinson. I've done my own independent review and I 
have concerns and I wanted to alert you that this is a new area 
that was not mentioned in the Starr referral and I wanted to 
give you the courtesy of that notice.
    In response to questions by Mr. Chabot, you indicated that 
the President had no reason to believe that the OIC or the 
Jones attorney would call Betty Currie as a witness; therefore, 
she was not in a position to be tampered with.
    But I just wanted to alert you to the deposition testimony 
of the President in which the name Betty Currie was mentioned 
over 20 times. And, in fact, there was a statement by the 
President at that time in reference to Betty Currie that 
``those are questions you'd have to ask her.''
    And so, was not the gauntlet set down by the President that 
Betty Currie is a relevant witness? He even said that the Jones 
lawyers need to question her. And then subsequent to that 
suggestion, he goes back to Betty Currie and goes through that 
series of questions that every lawyer and every layperson would 
have some concern that is tampering or coaching, particularly 
when you are talking about a President of the United States 
with a subordinate employee.
    So that is a concern of mine. And I think there is a notice 
there, would you agree, that the President fully was aware that 
she would likely be a witness to the OIC lawyers?
    Mr. Craig. Well, I disagree with the premise that she was 
likely to be a witness. In the President's mind, he had no idea 
that the OIC at that point was conducting an investigation that 
might include Betty Currie as a witness. And if you are 
talking, Congressman, about his state of mind, which is an 
important element in the category of crime that you are talking 
about, that element was certainly not there at that time. And I 
would hope you would raise this issue with Mr. Roff after you 
have had a chance to take a look at our presentation.
    Mr. Hutchinson. That is of great concern to me. A third 
area that I wanted to ask you about is the response of the 
President to the Starr referral. And in that response in 
conclusion number 8 at the very beginning of the executive 
summary it states: ``The President has admitted he had an 
improper sexual relationship with Ms. Lewinsky.''
    Can you point to any testimony of the President under oath 
in which he admitted to an improper sexual relationship with 
Ms. Lewinsky?
    Mr. Craig. I think it is clear in--his testimony in front 
of the grand jury, Congressman, is tantamount to admitting that 
he had an inappropriate, intimate, sexual relationship with Ms. 
Lewinsky.
    Mr. Hutchinson. The language that he used in the grand jury 
was that he had an inappropriate intimate relationship with Ms. 
Lewinsky. Is that the correct language that the President used?
    Mr. Craig. I think it was clear what he was testifying 
about.
    Mr. Hutchinson. Come on, don't give me word games.
    Mr. Craig. That is the language. The record speaks for 
itself.
    Mr. Hutchinson. Is that not the precise language that was 
used? The President was very careful in his words that it was 
an inappropriate intimate relationship.
    Mr. Craig. Yes, you are right.
    Mr. Hutchinson. He was careful to stay away from the term 
``sexual relationship,'' because if he had said ``sexual 
relationship,'' it would be totally inconsistent with his 
previous testimony. And yet the lawyers come out and say the 
President has admitted he had an inappropriate sexual 
relationship with Ms. Lewinsky and there is no evidence in the 
record to support what the lawyers are saying; is that correct?
    Chairman Hyde. The gentleman's time has expired. The 
distinguished gentleman from New Jersey, Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Chairman. I would like to make 
two brief comments and then ask a question. With regards to the 
rule of law which we all care about, isn't it a fact that if 
the President--President Clinton has violated the law, that not 
even he, the President, can get away with it? President Clinton 
can be sued civilly and criminally for any conduct at issue. He 
is not above the rule of law. We can hold him to the law.
    Therefore, no matter what decision this committee or this 
Congress makes about impeaching President Clinton, the world 
will know and our children will know that the rule of lawdoes 
exist and does apply in America to every American, even the President, 
because the President can always be sued civilly and criminally for his 
conduct.
    But what we are talking about here is whether additionally 
as another punishment, the President should be impeached and 
removed from office. And on that the Constitution provides us 
the standard of treason, bribery, or other high crimes and 
misdemeanors.
    We will be faced with impeaching the President for only the 
second time in our history and removing a President for the 
first time in our more than 200-year history.
    I want to address the business about the 81 questions and 
about contrition, because everyone says how evasive the answers 
to the 81 questions were. Let me read to you, because not all 
of my constituents had a chance to read the President's 
answers, a little bit of what he said. This is what the 
President said: The fact that there is a legal defense to the 
various allegations cannot obscure the hard truth, as I--the 
President says--as I have said repeatedly, my conduct was 
wrong. It was also wrong to mislead people about what happened 
and I deeply regret it.
    That is what President Clinton said in his answers to the 
81 questions. He used the word ``admitted'' and ``misleading'' 
four times. He apologized in the 81 answers three times. He 
said he regretted what he had done once more in the 81 answers. 
So if you are looking for contrition in the 81 answers, my 
friends, it was there if you only looked for it.
    Now, here is my question, the question for Professor 
Ackerman. If, in fact, despite your belief as to what should 
happen, the lame duck Congress' actions are accepted by the new 
Congress, can the Speaker of the new House alone, without a 
vote of the Congress, appoint the managers, the impeachment 
managers?
    Mr. Ackerman. No.
    Mr. Rothman. And why do you say that?
    Mr. Ackerman. This is a most solemn decision to allow the 
House to proceed with this inquiry. It would be an 
extraordinary abuse of the House for a single person to take 
upon himself this responsibility. Especially when, if he did it 
by himself, this would indicate that he didn't have the support 
of a majority of members. Because, obviously, anyone who did 
have a majority vote would put this matter up to the House.
    Mr. Rothman. Do you or any other member of the panel have 
any precedents or constitutional basis for that answer?
    Mr. Ackerman. Yes.
    Mr. Rothman. Please provide it.
    Mr. Ackerman. That is to say that in the impeachment of 
Andrew Johnson, the managers were selected by the House.
    Mr. Rothman. By a vote of the House of Representatives?
    Mr. Ackerman. Yes, yes.
    Mr. Rothman. Thank you. I yield back.
    Chairman Hyde. I thank the gentleman. The gentleman from 
Indiana, Mr. Pease.
    Mr. Pease. Thank you, Mr. Chairman, I have a couple of 
questions and a brief thought. Professor Ackerman, when 
presentation was made this morning on standards for impeachment 
and there was some discussion about whether perjury or related 
crimes of truthfulness under oath were considered, that even if 
we accept--if we accepted that standard as a standard for 
impeachment, that the history of the last 60 years since the 
adoption of the 20th amendment would be littered with bills of 
impeachment. Your words.
    Can you, either today or at some point, provide us those 
examples of Presidents or judges or Vice Presidents who lied 
under oath and were not subject to consideration for articles 
of impeachment?
    Mr. Ackerman. One should remember that lying under oath is 
not the only high crime and misdemeanor. There are many other 
activities of the Presidents of the United States. For example, 
to choose a very striking example, Franklin Roosevelt's abuse 
of his authority in the lend-lease matter.
    Mr. Pease. I understand the point, but my question----
    Mr. Ackerman. Which could also be a high crime and 
misdemeanor. What I said is it would be littered with 
impeachments. If we have a relatively low standard of 
impeachment, there are many questionable things that people in 
good faith would think rise to the level of high crime and 
misdemeanor, and it is an act which would be this engine of 
continuing bills of impeachment.
    Mr. Pease. I appreciate your clarification, because I 
understood you to say that if lying under oath was the 
standard, that our history would be littered; and that was not 
your intention.
    Mr. Ackerman. Thank you.
    Mr. Pease. Thank you. Mr. Katzenbach, you discussed 
particularly with regard to the Andrew Johnson impeachment, 
your understanding that high crimes and misdemeanors were at 
least in part determined by the public's understanding that the 
official was no longer able to continue effectively in office. 
Did I understand you correctly in that?
    Mr. Katzenbach. Let me rephrase it so that we are at least 
on the same wavelength.
    Mr. Pease. Please.
    Mr. Katzenbach. I believe that when you have an unpopular 
President, there is a question when the public believes that he 
ought to be impeached as well as the House believes he ought to 
be impeached, that it is very difficult to separate out the 
conduct for which he is being impeached from the fact that he 
is very unpopular.
    What you have in this situation today is an absolutely 
unprecedented thing as far as I know, and any historian can 
correct me, but here you have a President acknowledged by the 
public of all of the facts that you have been raising, most 
which I think are totally irrelevant, and the question as to 
whether or not those amount to a high crime and misdemeanor. 
And the public is saying no, it doesn't. We have confidence in 
this man as President.
    I think that is an absolutely unique situation. You can 
take a different view, sir, but if you do, you should have a 
reason for it. You should have a reason that--evidence that 
says the public has lost confidence in this man despite what 
they say, despite the elections, despite the polls.
    Mr. Pease. I understand, and I appreciate your 
clarification as well.
    One closing thought, Mr. Chairman. Last week one of the 
witnesses impugned both the perceived collective motive of the 
House and of individual Members. Today another witness did the 
same in his accusations of a cavalier attitude among Members on 
this difficult subject, or a disregard for the letter and 
spirit of the Constitution and more.
    There are Members of this committee of this House who have 
been scrupulously careful, often at the expense of attack from 
across the political spectrum, to reserve judgment in this 
matter, to listen carefully and respectfully, to avoid partisan 
attacks, and to do their duty as they see it.
    I still believe there are Members, despite the attacks, who 
will try to do the right thing in an atmosphere of civility and 
respect, and words like those heard today make it more 
difficult for us to do so.
    Chairman Hyde. I thank the gentleman.
    The gentleman from Wisconsin, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman.
    First, I would like to associate myself with Mr. Pease's 
final comments. I think that we would all be well advised if we 
could stick with the issues here. Obviously there are very 
explosive issues at play here, and to the extent to which we 
can have civility here, I think that is important.
    The President's actions were wrong. Everybody knows that. 
The question is how he should be held accountable. And I 
believe that censuring the President is an appropriate 
sanction, because I think it reflects the gravity of what he 
did. At the same time, it does not, I think, divide this 
country in a way that it need not be divided.
    I long ago gave up any notion that this chapter of our 
history would have a happy ending; I long ago gave up any 
notion that people would be pleased by my actions or our 
collective actions; and I long ago gave up any hope that people 
would look at the process in this committee and view it in a 
favorable light.
    So what do we have left? All we have left and all we can 
really salvage out of this is, what is the best thing for this 
country? And it is not good for this country to go through a 
trial where we will call Monica Lewinsky and have her talk 
about her intimate relationship with the President of the 
United States. It is not good for this country to call Linda 
Tripp forward. It simply will not do anything positive, in my 
mind, for this country. It will further divide this country and 
make people more suspicious of government. And if that is what 
people want, that is what they are going to get.
    Now, today we have had a fine panel here, and I would agree 
with Mr. Canady that we don't have a lot of new news, other 
than, frankly, Mr. Ackerman's statement which I consider 
something of a blockbuster in terms of where we are going to 
go. I see now for the first time the possibility that the House 
of Representatives could pass articles of impeachment and, 3 
weeks later, refuse to reappoint managers to prosecute that 
case. The question is whether there is precedent for that. In 
both the Judge Louderback case and in the Judge Hastings case, 
Congress, not by the action of the Speaker of the House, but by 
action of the full House, reappointed those managers.
    Mr. Ackerman, my question for you is, from a constitutional 
standpoint, if on December 17th or 18th we pass an article or 
articles of impeachment; and on January 3rd, 1999, this House 
refuses to reappoint those managers, what is our procedural 
setting?
    Mr. Ackerman. Well, I am afraid it will be a terrible 
precedent for the impeachment process, because one day there 
will be a President who deserves to be impeached, and a public 
demonstration, unique in our history, of to'ing and fro'ing. 
Rushing to judgment in a lame duck session and then refusing to 
go forward will--or may, I hope not--discredit the weapon when 
it may be needed.
    Mr. Barrett. But we have a situation now--and all of us in 
this room now understand it--that the claims were, prior to the 
election, that the Democrats wanted to have this done by the 
end of the year because we thought we were going to lose seats, 
and that the Republicans wanted to drag it out beyond the 
beginning of the next Congress because they would gain seats.
    Obviously, reality dealt a severe blow to both of those 
theories, and now they are turned on their head.
    But we do have a real possibility that we could have this 
Congress impeach this President, and 3 weeks later the case 
could completely fall apart. And I would argue to you and to my 
fellow members on the committee that that would be even more of 
a disservice to this country and that we should move towards 
censure, we should resolve this in this committee, and we 
should get back to doing the people's business, because that is 
what the people want.
    Mr. Ackerman. I am not here as a witness for the President. 
My teacher, Alex Bickel, once said, ``A scholar is like a bus. 
He goes from place to place, and people get on and get off 
whenever they want to.''
    My mission here was to alert you to real and serious 
constitutional questions. I would hope that if----
    Mr. Barrett. Excuse me, I don't mean to interrupt you.
    Could the Senate--because obviously we would have to 
reauthorize payment for this--could the Senate pay for the 
House managers to act, or could the Senate pay for the House to 
proceed if the House refuses to pay, as was the case for the 
two judges where the House authorized----
    Chairman Hyde. The gentleman's time has expired. We will 
have to hold that in dire suspense.
    Mr. Barrett. Mr. Chairman, if I could make one unanimous 
consent request. I have a document that I am going to present 
to the committee that writes to the CRS and asks them to 
clarify this issue of what would happen if the managers were 
not reappointed. And I would ask unanimous consent that that be 
made part of the record.
    Chairman Hyde. Without objection, so ordered.
    [Information not available at time of printing].
    Chairman Hyde. The gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    First of all, I would like to associate myself with the 
comments by Mr. Pease, and Mr. Barrett to the degree that he 
was dealing with the issue of demeanor.
    And let me say, Mr. Craig, staff has informed me that they 
thought you have come across very well on television, and I 
frankly appreciate that. I think that the tone with which we 
approach this problem, which is a very important problem, is 
more than just a little bit significant.
    Now, especially because some of the issues are frankly 
quite difficult. For instance, Mr. Craig, you said today that 
the President did not violate his oath, by which I think you 
are saying that he didn't commit perjury, because he didn't 
intend to lie in either the grand jury or the Paula Jones case. 
Of course, no one personally or through counsel ever admits to 
felonious activity outside the context of plea bargaining. So 
we, as the Judiciary Committee, are sort of left to figure out 
what the truth is here; and we are looking for corroborating 
evidence or evidence that undermines this problem of what the 
President intended. And ultimately, that is a criminal 
standard, I agree. But in informing our consciences, I think it 
is important that we have corroborating evidence.
    Mr. Coble referred to the intimate touching, and you 
characterize this as a ``he said, she said,'' sort of back-and-
forth conflict. But you today have also characterized the 
President's position as having acknowledged an intimate 
relationship, and used a lot of other words--``sinful,'' 
``wrong.'' You use the term ``wrong'' in a different case--
``inappropriate,'' ``improper''--and you went on to say that 
the President has misled family, friends, colleagues and the 
Nation, et cetera.
    It seems to me that, as we have to struggle with this 
rather sordid question of whether or not what the President's 
activities were in the context of what he said, that that 
statement of intimacy, the statement about wrongness has to 
lead me to believe that he is not telling the truth about these 
very fine distinctions that he is making; that, in fact, he 
committed perjury.
    Would you speak to that? And in particular, does the 
President believe, or has he said to you, and I recognize the 
problem of being his counsel, and you should speak from your 
own knowledge, either that she touched the President intimately 
or that he touched her intimately in the sense of the 
definition of sex in the Paula Jones case?
    Mr. Craig. I think the issue that was identified in Mr. 
Schippers' report, which adopts only one of the three 
allegations in the Starr referral and identifies that as the 
key question in the grand jury testimony, is that it has to do 
with whether or not the President, when he was having contact 
with Monica Lewinsky, whether--the President engaged in certain 
intimate touching with clothing or without clothing.
    And at that point, I think I say and I think I say 
correctly, Congressman, that she said he did, and he says he 
did not with respect to that one aspect of their activity. That 
is key to the perjury issue which I think would be tried on the 
floor of the United States Senate if this were referred over to 
the Senate.
    Mr. Cannon. Mr. Craig, someone testified before this 
committee, particularly Professor Saltzburg last week, that the 
proper method of dealing with any particular untruth by the 
President in the Jones lawsuit is to leave that issue for Judge 
Wright. Do you agree with that?
    Mr. Craig. I'm sorry, I didn't understand everything you 
said.
    Mr. Cannon. A lot of background noise here.
    Do you recall that some have testified previously, 
particularly Professor Saltzburg last week, that the proper 
method of dealing with any particular lying by the President in 
the Jones lawsuit is to leave that issue to Judge Wright? Do 
you concur with that?
    Mr. Craig. That is traditionally the way allegations of 
lying in civil depositions have been taken care of. In fact, 
the practice in the U.S. Attorney's Office, much to my regret, 
because I've been a civil practitioner where the other side has 
offered false testimony. I have referred such cases to the U.S. 
Attorney's Office, and routine by matters they don't take them 
up such cases and prosecute them. It's left up to the civil 
judge to handle.
    Mr. Cannon. Thank you, Mr. Chairman.
    Chairman Hyde. Thank you, sir.
    The gentleman from California, Mr. Rogan.
    Mr. Rogan. Thank you, Mr. Chairman. And I thank all of the 
witnesses for their patient and able presentations this 
morning.
    First I want to note the comments of my dear friend from 
New Jersey, Mr. Rothman, a few minutes ago where he made the 
very correct point that a President is not above the law, 
because he can be sued in civil court. And that's exactly what 
this whole case is about.
    Let me dispel the myth that is out there among some people 
that a bunch of lawyers just showed up one day and began to 
inquire into the President's personal life. That was not the 
case. The President of the United States was a defendant in a 
Federal civil rights sexual harassment lawsuit filed by Paula 
Jones. And despite his objections to answering questions about 
potential conduct he may have engaged in with female 
subordinate employees, the judge ordered him to answer certain 
questions under oath because the judge found that it might show 
a pattern of conduct if his answers were in the affirmative. 
The judge found that Paula Jones was entitled to that 
information in pursuing her sexual harassment lawsuit.
    Mr. Craig, you are in a somewhat unenviable position, 
because I understand you have to be the President's 
representative. I promise not to shoot the messenger, but I 
want to know. Within that framework, does the President of the 
United States support Federal sexual harassment laws that are 
on the books today?
    Mr. Craig. Of course he does.
    Mr. Rogan. Does the President believe those laws should be 
vigorously enforced?
    Mr. Craig. Yes, he does.
    Mr. Rogan. Does he also believe that these laws properly 
rise to the level of a civil rights action in Federal court?
    Mr. Craig. Well, I have to tell you, at this point I am 
moving beyond my conversations with the President, so I can't 
tell you with any authority what his views are on that. I would 
just be speculating, Congressman, at this point.
    Mr. Rogan. Do you think the President believes that the law 
is correct in allowing women who have been victimized in the 
workplace to obtain discovery about patterns of conduct from 
employers who are victimizing women?
    Mr. Craig. I think he would have no dispute with that 
proposition.
    Mr. Rogan. I am assuming the President also believes that 
women in the workplace ought to be able fully to prosecute 
their claims against harassing employers.
    Mr. Craig. I think he would take that position as well.
    Let me explain one thing that happened that I'm sure you're 
familiar with. When he walked into that deposition, he was 
handed a three-part definition of sexual relations which then 
got debated between counsel, and then got changed by the 
court--by the judge--and then got applied by the President as 
he was asked questions.
    Mr. Rogan. I am aware of the President's contention in that 
regard.
    General Katzenbach, let me turn to you for a moment. You 
are the distinguished former Attorney General of the United 
States who has prosecuted a number of cases on behalf of our 
country. What do you think the impact is to women who have been 
victimized in the workplace if Congress accepts the notion that 
lies in court are acceptable, if the lie is about sex in a 
civil rights action because somebody might be embarrassed by 
telling the truth. Does that have a negative impact or a 
positive impact on women in the workplace?
    Mr. Katzenbach. If you were talking in the context of 
impeachment, I don't think it has any relevancy at all or any 
impact at all.
    Mr. Rogan. Let's just talk about it in terms of the rule of 
law. What impact do you think that has?
    Mr. Katzenbach. If all we were talking about was the rule 
of law, we are talking about cases in civil or even criminal 
courts, then I think it would have a very negative impact if 
this committee in that context were to ignore the actions by 
anybody in the government, including the President.
    Mr. Rogan. And----
    Mr. Katzenbach. If you're talking in an impeachment 
proceeding----
    Mr. Rogan. I have to interrupt because my time is very 
limited.
    Mr. Katzenbach. Well, it's my time, too.
    Mr. Rogan. Well, actually it's my time, and I'm sharing it 
with you.
    Mr. Katzenbach. It's your time, and am I permitted to ask 
questions? How----
    Chairman Hyde. It sounds like Rudy Vallee starting his 
theme song.
    Mr. Rogan. General Katzenbach, under the law, if somebody 
responds under oath in court to a material or relevant 
question, ``I don't remember,'' and in fact they do remember, 
that would be lying under oath or perjury, wouldn't it?
    Mr. Katzenbach. I would think if, in fact, they did 
remember, and it was a material matter in it, that would be 
lying, would be perjury, yes.
    Mr. Rogan. The President was asked this question, ``So I 
understand your testimony, it was possibly that you were alone 
with her, but you have no specific recollection of that 
happening?'' He gave this answer: ``Yes, that's correct.'' If a 
court found that to be material and relevant, that would be 
perjury?
    Mr. Katzenbach. It would be perjury. I can't imagine 
anybody ever prosecuting, but it has nothing to do with 
impeachment.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Rogan. Thank you, Mr. Chairman.
    Chairman Hyde. The gentleman from South Carolina, Mr. 
Graham.
    Mr. Graham. Thank you, Mr. Chairman.
    My understanding is that Mr. Ruff is going to handle most 
of the factual disputes.
    Mr. Craig. I've tried to handle those questions that have 
been asked of me, Congressman, but, yes, you're correct.
    Mr. Graham. Well, we've had a conversation before, and I 
want to say, as a lawyer, I think you're a fine lawyer, and the 
President's lawyers have done a very good job.
    And the comment about being a potted plant Congress, I 
don't think that any of us here have taken this too lightly. I 
don't know about the other folks, but I think I have aged a 
little bit.
    I am not a potted plant. I have looked at the President's 
deposition testimony. I have read his grand jury testimony. 
Well, I guess I have looked at him testifying before the Paula 
Jones deposition because it's videotaped. I have read all the 
relevant witnesses' testimony at least once or twice, and to be 
honest with you, I think if you had an open-minded potted 
plant, I could convince him that he's committed perjury, but 
that's just where I am at on this thing.
    Now having said that, one thing that bothers me the most 
about what we're doing here is that there's people listening 
that may get confused about what they should do. If we can't 
agree on anything else as Republicans and Democrats, let's 
agree on this: If you are ever called in to testify, and you 
promise to tell the truth, the whole truth, and nothing but the 
truth, don't do what the President did, because some people may 
not understand what you're trying to do.
    Don't ever get yourself in this position. It's just simply 
not worth it, because some people may believe that there is 
really no difference between willful misleading than just flat 
out lying, and you're going to get yourself and the law in 
trouble.
    And that's what worries me the most, that we are sending a 
terrible message to young people and anybody else that is going 
to associate themselves with the law.
    Let me ask one question, Mr. Craig. When the Presidentleft 
his deposition on January the 17th, I believe, he did mention, you need 
to ask Betty at least once. And I believe that he knew that Betty 
Currie was likely to be a witness because he suggested that she be 
asked questions at least by the Paula Jones lawyers. She tells us a 
series of statements made by the President. One of them was supposedly, 
according to her testimony, this is the President to Betty Currie, 
``She wanted to have sex with me, and I couldn't do that.'' What did he 
mean there?
    Mr. Craig. I don't know how to answer that question.
    Mr. Graham. Would you go ask him, because that's important 
to me, and I'm going to tell everybody here at the end of this 
hearing what I think was going to happen without this blue 
dress and the stain on it to this young lady, and it was not 
going to be pretty.
    I yield back the balance of my time.
    Chairman Hyde. The gentlelady from California, Mrs. Bono.
    Mrs. Bono. Thank you, Mr. Chairman. I, first of all, want 
to thank the panelists for their patience. It seems I always 
have to thank everybody, being the last person here.
    I have to tell you that, as you know, I'm one of the few 
nonlawyers on this committee. What my colleagues enjoy about me 
is that I am a nonlawyer. I sit there and I've watched the 
tapes with them. They actually watch my reactions to it.
    As I watched the President's videotaped deposition in the 
Paula Jones case, which I saw after watching his testimony 
before the grand jury, it hit me very, very hard. I know that 
no Americans have seen that tape, except for a very select few.
    Whether I reacted perhaps to perjury or just watching my 
President lie to me personally, I didn't know at that point. 
And over time, I have come to the conclusion that it was 
perjury, and it bothered me a great deal. I won't be labeled a 
zealot because I do believe it was perjury. I do believe it is 
wrong. And I will not have a problem supporting that article of 
impeachment.
    My question really is for Mr. Craig. As the last person 
here, I have to sit here and listen to 36 other Members and 
come up with a question that nobody else has asked, which is 
very difficult. It's a very simple one, yet I think it's very 
complex, and it's one that most of America is asking. That is, 
Mr. Craig, do you have small children at home?
    Mr. Craig. I do.
    Mrs. Bono.  What do you tell them? How do you explain to 
them that your President has lied and that it's okay?
    Mr. Craig. Oh, I tell them it's not okay to lie, 
Congresswoman. I say that it's the most important thing in the 
world to tell the truth all the time.
    Mrs. Bono. The whole truth and nothing but the truth?
    Mr. Craig. The whole truth. And I tell them that one of the 
reasons that the President is in such trouble is that he did 
not. He misled the American people, he misled his family, he 
misled his colleagues, and that was wrong. And the President 
should have admitted that it was wrong much earlier than he 
did. He should have made full disclosure earlier, and he did 
not, and that was wrong.
    Mrs. Bono. But----
    Mr. Craig. That's a very important lesson for the children 
of this country, I think.
    Mrs. Bono. All right. Let me jump in here, if you will. I 
don't understand. There's also a difference perhaps between 
that and then again under oath before a court. Did he mislead 
the court?
    Mr. Craig. If he did mislead a court under oath, that would 
be wrong. It would be unlawful. That is for a court of law, a 
criminal court of law, to resolve with all the protections that 
a court provides to a defendant, and most people that are 
working with the President in the defense believe that such an 
outcome is a very likely possibility in the future.
    Mrs. Bono. Thank you. I understand that. I think this is 
the hardest thing for me, for any parent, that we have looked 
at, we have seen. I thank you for your honest answer. I yield 
back the balance of my time with that.
    Chairman Hyde. I thank the gentlelady.
    And we have reached the end of the questioning. And before 
I dismiss the panel, I will indulge myself, because I have not 
availed myself of the opportunity.
    And if I might, in the vast literature of impeachment to 
which many of you have made a significant contribution, 
occasionally you run into something that strikes you as 
particularly salient, a gem, so to speak. And I would like to 
read from a gem that I discovered in the literature of 
impeachment.
    ``What is unique in the history of the Presidency about 
this scandal is the long list of potential criminal charges it 
involves. Even before the various investigations were 
concluded, it appeared likely that the President and his allies 
had engaged in a multitude of indictable activities, among 
others: in perjury and subornation of perjury, and obstruction 
of justice, and destruction of evidence, and tampering with 
witnesses, and misprision of felony, and in conspiracy to 
involve government agencies in a subsequent cover-up, all of 
which now prove beyond doubt means that the President himself 
has conspired against the basic processes of democracy.''
    Here's the interesting part. That was interesting; this is 
really interesting. ``Such transgressions must not be forgiven 
and forgotten for the sake of the Presidency, but rather 
exposed and punished for the sake of the Presidency. Excessive 
respect for the office should not deter us from pursuing 
justice this way. I would argue that what the country needs 
today is a little serious disrespect for the office. Nor should 
we be satisfied with watered-down, slap-on-the-wrist 
alternatives. Censuring the President for the crimes in 
question is not enough, since 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 abroad. No, in 
the end only the decisive engine of impeachment is 
appropriate.''
    Those words have a resonance for me, especially since they 
are written by Arthur Schlesinger, Jr. in 1973 in his book The 
Imperial Presidency, discussing the men who had the unfortunate 
characteristic of being a Republican. But, nonetheless, I 
thought that was very interesting, and I share it with you 
because he's one of those 400 eminent historians whose view 
today has modulated somewhat.
    In any event, we are all in your debt. Thank you very much.
    Mr. Katzenbach. But he is not a lawyer.
    Chairman Hyde.  But he's a historian. That's better, isn't 
it, Mr. Katzenbach?
    Mr. Katzenbach. Only in some views. I don't share that view 
myself.
    Chairman Hyde. I don't either. That's all right.
    Mr. Wilentz. Watch it.
    Chairman Hyde. Thank you very much.
    Ms. Jackson Lee.  Mr. Chairman.
    Chairman Hyde. Oh, yes, the gentlelady asked me if I would 
mention to the viewing audience not in the room that 
occasionally, because we are going straight through lunch and 
we're going straight through dinner, Members find it incumbent 
to leave the room for one of several reasons, and that they are 
watching the proceedings on closed circuit television and not 
missing a beat. So please don't think the worst if a chair is 
vacant for a little period of time.
    Ms. Jackson Lee. Thank you, Mr. Chairman. I also have an 
inquiry about questions that remained unanswered for this 
panel. I'm wondering if the same rules are in play that these 
individuals might provide answers to questions in writing for a 
period of time.
    Chairman Hyde. I would say it's up to the panel. If you 
write them, I am sure they would be happy enough to answer 
them.
    Ms. Jackson Lee. Would those answers be able to be 
submitted in the record?
    Chairman Hyde. If the record is still open and we get them 
in time, yes. And if not, we'll find some way to put them in 
the Congressional Record.
    Ms. Jackson Lee. Thank you, Mr. Chairman. I thank the 
panel.
    Chairman Hyde. I thank the panel for a great contribution, 
all of you. Thank you.
    Mr. Canady. Mr. Chairman, I have a unanimous consent 
request.
    Chairman Hyde. Yes, sir.
    Mr. Canady. I ask unanimous consent to place in the record 
a statement by Professor Walter Berns, Professor Harvey 
Mansfield, and Professor Doug Kmiec concerning the subject of 
the testimony today.
    Chairman Hyde.  Without objection. So ordered.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.005
    
    [GRAPHIC] [TIFF OMITTED] T3320.006
    
    [GRAPHIC] [TIFF OMITTED] T3320.007
    
    [GRAPHIC] [TIFF OMITTED] T3320.008
    
    [GRAPHIC] [TIFF OMITTED] T3320.009
    
    [GRAPHIC] [TIFF OMITTED] T3320.010
    
    [GRAPHIC] [TIFF OMITTED] T3320.011
    
    [GRAPHIC] [TIFF OMITTED] T3320.012
    
    [GRAPHIC] [TIFF OMITTED] T3320.013
    
    [GRAPHIC] [TIFF OMITTED] T3320.014
    
    [GRAPHIC] [TIFF OMITTED] T3320.015
    
    Mr. Barr. Mr. Chairman.
    Chairman Hyde. The gentleman from Georgia.
    Mr. Barr. I ask unanimous consent to submit a letter for 
the record to me by Judge Griffin Bell.
    Chairman Hyde. Without objection, so ordered.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.016
    
    Chairman Hyde. I hope our second panel is here and ready.
    The committee will come to order, please. Ladies and 
gentlemen, our second panel is composed of three very 
distinguished former Members of Congress, the Honorable 
Elizabeth Holtzman, the Honorable Wayne Owens, and Father 
Robert Drinan.
    Would the three of you please rise and take the oath.
    [Witnesses sworn.]
    Chairman Hyde. Let the record reflect the witnesses 
answered the question in the affirmative. And first we will 
hear from the Honorable Elizabeth Holtzman, a former 
Representative of New York and a member of the House Judiciary 
Committee during the 1974 impeachment proceedings and for some 
years thereafter. I had the great pleasure of serving with her 
as well as with Father Drinan.
    The Honorable Robert J. Drinan, Society of Jesus, a 
professor of Georgetown University Law Center, former 
Representative from Massachusetts and member of the House 
Judiciary Committee from 1971 to 1981.
    The Honorable Wayne Owens, a former Representative from 
Utah and a member of the House Judiciary Committee during the 
1974 impeachment proceedings.
    You're each recognized--we'll go from Ms. Holtzman, Father 
Drinan, to Mr. Owens--for a 10-minute statement, and then we 
will go into the 5-minute rule for questions.
    So Ms. Holtzman.

TESTIMONY OF HON. ELIZABETH HOLTZMAN, FORMER MEMBER OF CONGRESS 
 FROM NEW YORK; HON. ROBERT J. DRINAN, S.J., FORMER MEMBER OF 
   CONGRESS FROM MASSACHUSETTS; AND HON. WAYNE OWENS, FORMER 
                  MEMBER OF CONGRESS FROM UTAH

              TESTIMONY OF HON. ELIZABETH HOLTZMAN

    Ms. Holtzman. Mr. Chairman, members of the committee, I 
thank you for the privilege of appearing before you on this 
historic day and hope my experiences as a member of the House 
Judiciary Committee during Watergate will be of assistance to 
you and the Members of the House in your deliberations.
    Let me begin by saying, Mr. Chairman, that I welcome the 
opportunity to appear before you. While we had our 
disagreements when we served together in the House, I always 
had tremendous regard for your ability to be thoughtful and 
open-minded. It was a pleasure to serve with you. These very 
qualities are what the committee sorely needs now.
    Nearly a quarter of a century ago, sitting where you are 
now, I never imagined in my lifetime that we would see another 
impeachment proceeding. I am saddened to be here today. I love 
this committee, I love the Congress, and I love my country. But 
if this committee and the House vote along party lines for the 
impeachment of President William Jefferson Clinton on the 
information presently available, the credibility of the 
committee and the Congress will be severely damaged for a long 
time.
    This impeachment will be viewed by the Nation and by 
history with as much disapproval of that as that of Andrew 
Johnson. I know that many on this committee and many in the 
country believe the President's conduct to be reprehensible and 
unacceptable. I do not disagree, and I am not here to excuse 
that conduct. Let us remember, however, that the goal of 
impeachment is not to punish a President, but to protect the 
Nation. Impeachment now will punish the Nation, not protect it.
    Consider how much the country will be harmed by an 
impeachment trial in the Senate if the House votes any articles 
of impeachment. The trial, which could last for months, will 
disrupt the workings of the Supreme Court. The Chief Justice 
will have to preside every day over the Senate trial. It will 
disrupt the workings of the Senate. It will disrupt the 
Presidency. That is one of the reasons that impeachment cannot 
be voted lightly.
    The danger to the Nation of having a President remain in 
office must be greater than the danger caused by the wholesale 
disruption of our government that an impeachment trial will 
bring. The American people are not likely to look kindly on a 
government shutdown number two.
    During Watergate, I spent many long hours poring over books 
and studies to understand the meaning of the term ``high crimes 
and misdemeanors.'' The framers of the Constitution wrote the 
impeachment clause because they were fearful that the monarchy 
they had just overthrown in the Revolution would return, that a 
newly created Chief Executive, the President, would become a 
tyrant.
    But Independent Counsel Kenneth Starr's referral makes out 
no case of abuse of power, a subject I have been asked to 
address by the White House. In Watergate, the article of 
impeachment that charged abuse of power was in a way the most 
serious, and it was the one that received the largest number of 
Republican votes.
    Think of what Presidential abuses we saw then: Getting the 
CIA to stop an FBI investigation, getting the IRS to audit 
political enemies, illegally wiretapping members of the 
National Security Council staff and of the press, a special 
unit in the White House to break into the psychiatrist's office 
of a political enemy, and on and on.
    By contrast, what does Mr. Starr point to as an abuse of 
power in his referral? Acts that do not in the furthest stretch 
of the imagination constitute any such abuse. Mr. Starr claims 
that the President did not voluntarily appear before a grand 
jury, but had to be subpoenaed before he appeared. That is 
surely not an abuse of power.
    Mr. Starr attacks the fact that the President authorized 
executive privilege to be claimed for a handful of staff 
members and require the Independent Counsel to prove his need 
for their testimony in court. Of course, once the court ruled 
that the testimony was required, then the President withdrew 
the claim. That, too, is not an abuse.
    Mr. Clinton's telling the American people that he did not 
have a sexual relationship with Monica Lewinsky is also not an 
abuse of power, although it was the wrong thing to do.
    Parenthetically, I want to note that, as one of the authors 
of the Independent Counsel statute, I believe that Mr. Starr 
overstepped his jurisdiction by arguing for impeachment on this 
ground or any ground. Both the referral and his appearance here 
go far beyond what the statute permits. We never intended to 
create a Grand Inquisitor for impeachment.
    I want to make a few other brief points. I have heard it 
said that this committee views itself as a kind of grand jury 
and that it merely needs probable cause, not overwhelming 
evidence to impeach. Instead, it is the Senate that must have 
substantial evidence to act. But if you use the analogy of a 
grand jury, then you should not be impeaching at all.No 
indictment would be sought by a prosecutor where there is no chance for 
conviction. And it is almost universally conceded that there are not 
enough votes in the Senate to convict President Clinton and remove him 
from office. In fact, Federal prosecutors need to have a substantial 
likelihood of success before they can recommend indictment to the grand 
jury.
    Why is this the case? Because prosecutions that go nowhere 
use up precious resources. And let us not forget how much money 
has already been spent on investigating President Clinton. It 
is almost an abuse of power to indict someone, seriously damage 
that person's representation, and force that person to the 
tremendous burden of putting up a defense when there is little 
or no likelihood of conviction.
    The same analogy holds true here. Impeachment should not be 
voted by the House unless there is a strong likelihood of 
conviction in the Senate. Impeachment is not a kind of super 
censure designed simply to besmirch a President's reputation. 
Impeachment is a tool to remove a President from office. It is 
a last resort to preserve our democracy. It must not be 
perverted or trivialized.
    Also, to use a different metaphor, this is not a football 
game where one player of the House simply hands off the ball to 
another player, the Senate. In Watergate, when we voted for 
impeachment, we did so because we believed President Richard 
Nixon should be and would be removed from office. We did not 
operate on some watered-down standard of evidence. We didn't 
think we were passing the buck to the Senate where the real 
action would take place.
    We voted as if we were the Senate, as if we ourselves were 
deciding on his removal, as if the case had been proven to us 
beyond a reasonable doubt. That same standard should be 
followed here. You just don't casually overturn the majority 
vote of the American people.
    And let me add, too, how difficult it was to cast the vote 
for impeachment. It was solemn, hard, and unpleasant. As much 
as I disliked Richard Nixon's policies, I did not relish for 
one moment voting for impeachment. He was my President, and I 
did not want to see my President engage in acts of that nature. 
I think the other members on the committee felt the same way.
    Unless this committee and the House act on a bipartisan 
basis and reach out for the common ground as we did during 
Watergate, unless you have the full support of the American 
people for the enormous disruption of our government that an 
impeachment trial will entail, unless you have overwhelming 
evidence of the serious abuse of power that impeachment 
requires, none of which has been true so far, you should not, 
you must not vote to impeach. Thank you, Mr. Chairman.
    Chairman Hyde. Thank you very much, Ms. Holtzman.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.044
    
    [GRAPHIC] [TIFF OMITTED] T3320.045
    
    [GRAPHIC] [TIFF OMITTED] T3320.046
    
    Chairman Hyde. Father Drinan.

            TESTIMONY OF HON. ROBERT J. DRINAN, S.J.

    Father Drinan. Mr. Chairman and members of this venerable 
committee, the situation before the House Judiciary Committee 
today is entirely different from the scene that I and my 
copartners here experienced in 1974. At that time, the country 
knew there was extensive lawlessness in the White House. The 
documentation of appalling crimes was known by everyone. Abuse 
of power and criminality were apparent to the American people. 
There is well-documented evidence put forth in the report of 
that committee in 1974 about the plumbers, the break-in of Dr. 
Ellsberg's office and the cover-up of the burglary at the 
Watergate Hotel.
    The procedure followed by the House Judiciary Committee at 
that time was, however, evenhanded. Months of hearings took 
place with the President's lawyer Mr. Jim St. Clair always 
present in this room and free to make any comments and ask 
questions.
    Today, the scene is startlingly different. No investigation 
has been made by the House Judiciary Committee, nor have any 
fact-finding hearings been held. The 21 Republicans have no 
support whatsoever from the 16 Democrats. And in addition, two-
thirds of the Nation or more are opposed to impeachment.
    In 1974, the Members of the Democratic Majority had 
constant conversation and dialogue with the Republican Members. 
And I remember going to the Republicans and sharing with them 
the destiny of this committee and the awesome task that had 
come to us.
    The Democrats were aware of the intense problems that the 
Republicans had with the impeachment of a Republican President, 
but eventually through the sheer force of the evidence, six or 
seven of the Republicans voted for one or more articles of 
impeachment. That was not a happy day when we voted for 
impeachment, and I remember well that Chairman Rodino said to 
the press afterwards, when asked what was the first thing that 
he did, he said, ``I went to my office and cried.''
    Another difference: the House Judiciary Committee in 1998, 
unlike its predecessor where we served, has allowed its agenda 
to be dictated by the calendar. Strategy has been determined 
not by the need for thoroughness and fairness, but by the 
convenience of ending this process by Christmas of this year.
    The House Judiciary Committee in 1974 furthermore did not 
vote for all of the proposed articles of impeachment. A serious 
charge was made that Mr. Nixon had backdated his taxes in an 
effort to take advantage of an exemption that had been 
repealed, and only 12 Members of the body voted for the 
proposition that this was an impeachable offense. Twenty-four 
Members, including myself, voted that this misconduct, almost 
certainly a felony, was not impeachable.
    The dignity and the majesty of the Rodino committee was not 
out to embarrass or humiliate President Nixon. What we were 
required to do was painful, but we worked, heard, listened, 
debated, and finally voted. And the people of America then and 
now saw that the process was deliberate, bipartisan and 
measured.
    The only time in American history that has seen anything 
like the process this fall before the House Judiciary Committee 
occurred in 1868 when President Andrew Johnson was impeached by 
the House. The consensus of history is that the Johnson 
impeachment was partisan and was a mistake. Its failure in the 
Senate did not prevent a weakening of the independence of the 
Presidency.
    And I hope, ladies and gentlemen, that history will not 
decree that the House Judiciary Committee made a profound 
mistake in 1998 and that this body will go down in the history 
books as when it was dominated by vindictiveness and by 
vengeance and bipartisanship.
    The American people who are so overwhelmingly opposed to 
impeachment may be coming aware of the dreadful consequences 
that would happen to America if the House approved 
ofimpeachment and sent articles to the Senate.
    The entire Nation knows that there are under no 
consideration 67 votes for that proposition in the Senate. But 
what the Nation doesn't realize, yet, is that the country could 
be paralyzed for some 6 months. The workings of the Supreme 
Court would be harmed because the Chief Justice, under the 
Constitution, must preside each day at the trial. The Senate's 
program would be held up, and the whole country would be 
immobilized.
    The House cannot pretend that it has only to act like a 
grand jury and send the articles to the Senate for trial. There 
is no historical or constitutional leave or justification for 
the proposal that you act as a grand jury.
    The House has a unique role in impeachment. The votes cast 
by each Member will be the most important vote cast by that 
person as a Member of Congress. And history will discover and 
record and remember whether that vote was done for partisan 
reasons. A vote to impeach in this case would have dire 
consequences for years and even decades to come.
    Almost 70 percent of the Nation and virtually every 
Democrat in the Congress are opposed to impeachment. These 
groups believe firmly that, even if all the allegations in the 
Starr report are true, there are no impeachable offenses.
    And I would anticipate, members of the committee, an 
explosion of anger like that that occurred after the Saturday 
Night Massacre could happen in this country. When people 
realize what you people anticipate you will do this Saturday, 
and when it goes to the whole House, an explosion of anger just 
like happened 24 years ago when Mr. Richardson and Mr. Cox did 
some brave things.
    Let me conclude, Mr. Chairman, by thanking you for the 
opportunity and urging you and the committee to recognize that 
the American people and the Democrats in Congress have a right 
to be listened to. They have not agreed with any reasons for 
impeachment set forth by the Starr report and the Republican 
leadership and the Congress. This Nation has a right to demand 
that impeachment efforts with no bipartisan support whatsoever 
should be reconsidered and postponed. Thank you very much.
    Chairman Hyde. Thank you, Father.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.047
    
    [GRAPHIC] [TIFF OMITTED] T3320.048
    
    [GRAPHIC] [TIFF OMITTED] T3320.049
    
    [GRAPHIC] [TIFF OMITTED] T3320.050
    
    Chairman Hyde. Mr. Owens.

                 TESTIMONY OF HON. WAYNE OWENS

    Mr. Owens. Mr. Chairman, ladies and gentlemen of the 
committee, I feel like we're appearing before you as three 
ghosts of impeachment past. With the exception of Ms. Holtzman, 
we are gray ghosts. We are grateful to be back in this hallowed 
Chamber. Thank you for giving us this opportunity.
    I remember keenly this afternoon how I felt 25 years ago 
when I learned while deer-hunting in the mountains of southern 
Utah of the so-called Saturday Night Massacre, the forced 
resignation of Attorney General Elliot Richardson and of Deputy 
Attorney General William Ruckelshaus and then the firing of 
Special Prosecutor Archibald Cox.
    I had been following the revelations of the Senate 
Watergate committee for 6 months. It was obvious that Sunday 
morning that the House would be required to pursue an 
impeachment investigation and that my committee, the Judiciary 
Committee, would be called to conduct that investigation.
    I think that I was initially in awe of the assignment, 
almost intimidated. No President had been called to account by 
the Congress for 100 years. History would be looking over our 
shoulder. And we wanted from Chairman Rodino on down, 
Republicans and Democrats, to be sure that we were careful, 
judicial and bipartisan in all that we did.
    While we recognized that impeachment was a political 
process, we were determined that it would not be a partisan 
process. And we reported unanimously our recommendations to the 
House that the investigation--that the investigation go 
forward, all 21 Democrats and 17 Republicans. And it was 
accepted by the full House by a vote of 410 to 4. So we are 
aware, I think, of your feelings as you approach the decisions 
you must make.
    Chairman Hyde indicated early on that the precedents of the 
Nixon impeachment would be followed closely, and I wanted to 
argue to you that President Clinton's misdeeds do not reach the 
standard of impeachment which our committee established at that 
historic time.
    What was that standard? We define impeachment in our final 
report as quote, ``A constitutional remedy addressed to serious 
offenses against the system of government.'' Ten Republican 
members of the committee in a Minority report argued for a 
higher standard of judgment saying, quote, ``The President 
should be removable by the legislative branch only for serious 
misconduct dangerous to the system of government established by 
the Constitution.'' The man who is now the Senate Majority 
Leader, then Congressman Trent Lott, a member of the committee, 
was one of the 10 arguing for that higher standard.
    I want to recall for you briefly the circumstances 
surrounding the adoption of the so-called Abuse of Power 
article of impeachment in late July 1974. The committee had 
just passed the first article referred to as the Obstruction of 
Justice article by a solid vote of 21 Democrats and 6 of the 17 
Republicans.
    Proposed article of impeachment number two, after serious 
consideration and debate, was passed by an even larger 
majority. A total of 7 Republicans joined 21 Democrats, finding 
that President Nixon had violated the constitutional rights of 
citizens in five specific categories of abuse of his powers and 
voted to report the article to the floor for a full House 
consideration.
    I urge you to consider carefully the gravity of those 
charges in the Abuse of Power article, which an overwhelming 
and bipartisan majority of the committee found to be sustained 
by not only clear and convincing evidence. In fact, I believed 
the evidence to sustain a judgment beyond a reasonable doubt, 
the test for conviction in the Senate.
    It was obvious to us that President Nixon would go to trial 
in the Senate and to many of us that we wanted to have a 
standard which would pass muster in the Senate. President 
Nixon, it was clear.
    One, directed or authorized his subordinates to interfere 
with the impartial and nonpolitical administrationof the 
internal revenue law for political purposes.
    Two, he directed or authorized unlawful electronic 
surveillance and investigations of citizens and the use of 
information obtained from the surveillance for his own 
political advantage.
    Three, he permitted a secret investigative unit within the 
Office of the President to engage in unlawful and covert 
activities for his political purposes, including abuse of the 
CIA.
    Four, once these and other unlawful and improper activities 
on his behalf were suspected, and after he knew or had reason 
to know that his close subordinates were interfering with 
lawful investigations into them, he failed to perform his duty 
to see that the criminal laws were enforced against those 
subordinates.
    And, five, he used his executive power to interfere with 
the lawful operations of agencies of the executive branch, 
including the Department of Justice and the Central 
Intelligence Agency, in order to assist in these activities as 
well as to conceal the truth about his misconduct and that of 
his subordinates and agents.
    Today you are faced with a record of misdeeds by a 
President who carried on an illicit sexual affair then publicly 
and privately misled others to protect his wife and daughter 
and the public from finding out about his infidelity; personal, 
not official misconduct, akin to President Nixon cheating on 
his taxes. Improper and serious, but by nature personal 
misconduct, and, therefore, not impeachable.
    Your obligation, may I be permitted to point it out to you, 
is to put those powerful differences into perspective and to 
render a judgment based solely on the gravity of the offense 
charged here because there is little disagreement on the facts.
    I know that it is said that impeachment is a political, not 
a legal, decision. But if you vote to impeach a President 
because he had an improper sexual affair, then avoided full 
disclosure by using narrow, legal definitions, even then 
affirming that testimony before a grand jury, even if he lied 
if you impeach on that narrow basis of personal, not official, 
misconduct, you do untold damage to the Constitution and to the 
stability of future Presidents.
    Our forefathers wisely intended that only abuses of 
official Presidential powers should be the premise--should be 
the premise for impeachment. And, ladies and gentlemen, there 
is no evidence of such abuses before the committee, not at all.
    In closing, may I quote again briefly from the Minority 
views of those 10 House Judiciary Committee Republicans who 
ultimately accepted and supported the articles of impeachment 
so that there was a unanimous--unanimity in the Judiciary 
Committee that President Nixon should be impeded, before the 
President resigned. From their Minority views, this: ``Absent 
the element of danger to the State, we believe the delegates to 
the Federal Convention in 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.'' Thank you very much.
    Chairman Hyde. Thank you very much, Mr. Owens.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.051
    
    [GRAPHIC] [TIFF OMITTED] T3320.052
    
    [GRAPHIC] [TIFF OMITTED] T3320.053
    
    [GRAPHIC] [TIFF OMITTED] T3320.055
    
    Chairman Hyde. Now we will have the questions from the 
Members, and the first questioner is Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Ms. Holtzman, I believe that after you left Congress, you 
spent some time as district attorney in Brooklyn. Am I correct 
in that?
    Ms. Holtzman.  Yes, Mr. Sensenbrenner. I also had the 
pleasure of serving with you.
    Mr. Sensenbrenner. Yes, and I remember that very vividly.
    Do you think that making a false statement before the grand 
jury is an impeachable offense?
    Ms. Holtzman. It could be, but it doesn't have to be.
    Mr. Sensenbrenner. What's the difference, in your mind?
    Ms. Holtzman. What Mr. Owens so eloquently spoke to, which 
is that, in my judgment, whether the conduct is reprehensible 
or not, whether we find it extremely distasteful or not, the 
standard of impeachment is the abuse of the power of office, 
one that creates a serious danger to the operations of our 
government and a threat to our democracy, which is what we saw 
in Watergate.
    Mr. Sensenbrenner. The last impeachment which was voted by 
the House of Representatives was 9 years ago in 1989, and there 
the House of Representatives unanimously, 417 to nothing, 
declared that Judge Walter Nixon's false statements to the 
grand jury about a private matter, which was a sweetheart oil 
and gas lease deal, were impeachable offenses. And the Senate 
agreed with the House's charge and kicked Judge Nixon out of 
office, I believe, by a 91 to 8 vote.
    Can you tell me what you think the difference is between 
Judge Nixon's false statements to a grand jury about a private 
oil and gas lease that did not have anything to do with 
grievously defrauding the government or changing the 
constitutional balance of powers and Bill Clinton's false 
statements, if they indeed were false statements, to the grand 
jury about his relations with Monica Lewinsky?
    Ms. Holtzman. Mr. Sensenbrenner, I think that the members 
of this committee can see and the country can see that there is 
a huge difference between impeaching one Federal judge and 
removing--because there are hundreds of Federal judges--and 
removing the one President of the United States. And, 
obviously, the situation of removal of a President is so grave, 
because the President is voted upon. Judges, Federal judges, 
are not elected. You are undoing the majority vote of the 
American people that is central to our democratic system. It is 
central to the stability of this Nation. We have survived as a 
democracy very well. The Presidency has been a central part of 
it.
    But the second answer to your question, sir, is that judges 
serve during good behavior, which is something thatdoes not 
apply to Presidents. It's a constitutional standard. And so I think 
it's quite different.
    Mr. Sensenbrenner. Let me say that I am deeply concerned 
with that answer, because what you are saying is that the 
standard of truthfulness for a President of the United States 
when testifying before a grand jury is less than the standard 
of truthfulness for a Federal judge.
    Now, you and I will disagree with that conclusion, but I 
have looked back in the record, as I am sure all of us have, 
and I pulled out your questioning of Gerald Ford when he was 
before this committee, having been nominated to be Vice 
President by President Nixon, who was still in office at the 
time.
    And you talked to Mr. Ford about Nixon lying allegedly 
about the bombing of Cambodia. Mr. Ford responded that he 
didn't think that President Nixon had been 100 percent truthful 
on that matter and then insisted that all Presidents had given 
some false and deceptive statements.
    You then said there was a difference between keeping a 
secret and falsifying information. And you said, ``I think all 
of us understand that difference very well.'' Could you tell us 
then, is there not a major difference between historical 
falsehoods as opposed to lies before a Federal court proceeding 
or a grand jury?
    Ms. Holtzman. Mr. Sensenbrenner, I hate to answer a 
question with a question; but don't you think there's an 
enormous difference between keeping a dual set of books about 
bombing of a foreign country without the authorization of 
Congress and not telling the truth about private sexual 
misconduct?
    Mr. Sensenbrenner. I think there is--there should be no 
difference, because our perjury and false statement statutes, 
you know, do not have various levels of perjury. When you do 
make a false statement, you have to live by the consequences. 
And I think we all try to teach our kids that one of the things 
they always should do is always tell the truth.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Michigan reserves his time, and we will 
then go to the gentleman from Massachusetts, Mr. Frank.
    Mr. Frank. Let me follow up. Mr. Sensenbrenner said that he 
would see no difference between lying about a private sexual 
affair and lying about bombing a country, and that there was no 
gradation at all. One of the three counts of grand jury 
perjury--and I think the grand jury perjury is the most serious 
set of issues--one of the three counts is, according to Mr. 
Starr, the President said that the intimate activity began in 
February of 1996, and Ms. Lewinsky said it began in November of 
1995.
    Here I would just express my difference with Mr. 
Sensenbrenner. I do think, even if the President was wrong and 
got it wrong by a couple of months, that making a false 
statement by too much--when nothing turned on it, since Ms. 
Lewinsky obtained no age of majority, nothing happened in the 
interim period that made any difference, but let me ask you--so 
I would think as between misstating by 2 months the date the 
affair began when you admitted it and bombing a country, I 
don't know, maybe you could bomb the wrong country, it would be 
analogous, and you cover it up by mistake, but my question 
would be as a former prosecutor, Ms. Holtzman, would you have 
a--would you think anyone would have brought in the 
prosectorial discretion a perjury case because someone 2\1/2\ 
years after an event admitted the event but got it wrong by 2 
months when nothing turned on the 2 months?
    Ms. Holtzman. Well, I would be surprised by such a 
prosecution. Remember, perjury requires materiality, and this 
is a jury question.
    Mr. Frank. That's directly relevant, because there was no 
materiality here. But this is one of Mr. Starr's three counts 
of perjury.
    But the way, on that subject, my colleague from Arkansas 
challenged Mr. Craig before. He said that the President never 
admitted to sexual contact with Ms. Lewinsky. He used the 
phrase ``inappropriate intimate contact.'' I suppose he might 
have been having an inappropriately intimate conversation about 
which country they would like to bomb together.
    But my sense is that almost everybody, except the gentleman 
from Arkansas, accepted that, and among the people who believed 
that Mr. Clinton did acknowledge that was Kenneth Starr, 
because on page 149 of the referral, at point 3, he says, ``The 
President made a third false statement to the grand jury about 
his sexual relationship with Monica Lewinsky. He contended that 
the intimate contact did not begin until 1996. Ms. Lewinsky 
testified that it began November 15th, '95.''
    In other words, in the very accusation that Mr. Clinton got 
it wrong by 2 months, Mr. Starr uses ``intimate'' and 
``sexual'' interchangeably, and, in fact, I think disagrees 
from the point of the gentleman of Arkansas and acknowledges in 
this report--in fact, he charges the President with 
inaccurately remembering when the sexual contact began.
    It would seem to me my colleagues would have to decide 
here. They cannot impeach in the alternative. You cannot accuse 
the President of having not acknowledged the relationship and 
then impeach him for having acknowledged it on the wrong day.
    Yes, Ms. Holtzman.
    Ms. Holtzman. Congressman Frank, I think you raised a very 
pivotal point, which is we are talking about impeaching a 
President of the United States. It doesn't matter if it's 
William Jefferson Clinton or somebody else. And you cannot 
trivialize the power of impeachment by talking about removal 
because we have got a date mistaken by 2 months or the 
President says----
    Mr. Frank. Thank you.
    Ms. Holtzman [continuing]. Intimate as opposed to sexual.
    Mr. Frank. Let me say----
    Ms. Holtzman. And I think that's critical.
    Mr. Frank. Ms. Holtzman, I want to get quickly to the two 
other perjuries. One of the other two counts of grand jury 
perjury is that the President, when he said that--he believed 
he said in August--this is even almost too complicated to 
state--Mr. Starr said he perjured himself because he said in 
August that he believed when he did the deposition that oral 
sex wasn't covered. And they say they knew he was lying. Again, 
how they would prove that, I don't know what witness they want.
    And the third one, of course, was the one Mr. Wexler talked 
about before: What did the President touch, and why did he 
touch it? That's the central count of perjury.
    But just in closing, I want to respond also to a comment 
made by the gentleman from Georgia who said, well, the 
President hasn't yet been exonerated on Whitewater. Whitewater 
has seniority around here. If Whitewater were a Member, it 
would be a subcommittee Chairman.
    Whitewater has been investigated by three Republican 
Justice Department appointees, Jay Stevens, Robert Fiske, 
Kenneth Starr, three men who at one point had been Republican 
Justice Department appointees. They have been working on it for 
over 5 years. They have as yet come up with nothing.
    I do not doubt by this record that they will never admit an 
exoneration, but keeping open something which three separate 
Republican Justice Department former prosecutors have 
investigated for 5 years and have been able to bring forward no 
charge against the President, it seems to me that's an abuse of 
power to continue to hold over someone's head something that 
has been so long investigated for so little purpose.
    And I actually yield back, Mr. Chairman.
    Chairman Hyde. I thank the gentleman.
    The gentleman from Florida, Mr. McCollum.
    Mr. McCollum. Thank you very much, Mr. Chairman.
    Mr. Owens, I believe I'm reading your testimony correctly 
and hearing it that you do not believe anything is impeachable 
or should be impeachable that isn't directly related to some--
in some way the President's power of executive authority. Do 
you think, then, that if the President of the United States 
went back home on vacation to Arkansas and murdered two of his 
best friends, having no connection whatsoever to his office in 
any official capacity, that we should ignore; would be 
derelict? Should we impeach him for that if we knew he 
committed murder while he's sitting as President.
    Mr. Owens. Given your hypothetical, and it is a farfetched 
one, Mr. McCollum, I would certainly agree that the President 
of the United States would not be fit to serve if he had 
committed murder. My assumption is that he would be replaced 
probably before it had to go to impeachment. But certainly 
murder is an offense in my mind, an impeachable offense, if 
it's a President or Vice President or Congressman from Florida.
    Mr. McCollum. Let's hypothetically assume, then, that the 
President of the United States did not commit murder, but that 
we elect a President someday and find after we elected him 
that, indeed, prior to his election in office, he had committed 
several crimes of fraud and bilking of senior citizens out of 
millions and millions of dollars. Would that be an impeachable 
offense? That certainly wouldn't go to his official conduct.
    Mr. Owens. I think these issues are issues of gravity. I 
would think that the Judiciary Committee would have to look at 
that, a group of wise men and women like this one, and make a 
decision whether it rose to the impeachability. I think that's 
a subjective judgment based on who's before the committee and 
the level of evidence.
    Mr. McCollum. Ms. Holtzman, I am sure you are aware, 
because it was in today's paper, that Henry Ruth wrote an 
article about Watergate and cited specifically the income tax 
fraud charge against President Nixon and cited your vote and 
Mr. Conyers as having voted to impeach on that article, 
although I think perhaps others on this panel voted against it.
    Yet you have testified today, I can't imagine that was 
related to his official duties; that, indeed, you think that 
impeachment needs to be related to the President's official 
duties. How do you square your vote back in 1974 with President 
Nixon on the income tax fraud question to your testimony today?
    Ms. Holtzman. I am sorry, I haven't had the pleasure of 
reading Mr. Ruth's article. I assume it would be a pleasure to 
read it.
    Mr. McCollum. It's in today's Wall Street Journal.
    Ms. Holtzman. In any case, my answer to you is severalfold. 
One, I went back because I had remembered the article of 
impeachment with regard to taxes when this issue of Mr. Clinton 
came up. And I looked at what I had written at that point in 
support of that article. And in my writing, I said that I 
believe that there was a misuse of the power of his office. My 
views, unfortunately, don't provide the back up--don't provide 
the explanatory support. I didn't write those views. I signed 
those views. I haven't had time to--find the exact support in 
the record.
    But I want to make one other point, sir, and that is that 
that article also contained a question of emoluments, which 
charged the President of the United States, as President, with 
enriching himself with a variety of additions that were made to 
his homes at taxpayers' expense. So you did have an abuse of 
governmental office.
    I want to say a third thing in response to your question. 
That article was not the sole ground of impeachment. We had 
article 1 which had some 32 separate counts of obstruction of 
justice. We had article 2 which had five or six separate 
counts. So I don't know that anyone would have voted or that I 
would have voted--if that false tax return article were the 
only ground for the impeachment of the President of the United 
States, I cannot say that I would have voted for that.
    Mr. McCollum. I think what my point of all of my questions 
I have done now with this panel is simply to point out the fact 
that what may be considered to be official conduct or not is 
not really the ultimate criteria we should be judging 
impeachment on, even though, with great respect, that's what 
some of you are advocating.
    The fact is even in this case, the President, if he 
committed perjury or obstruction of justice, witness tampering 
and so forth, is something very closely related to his job as 
the chief law enforcement officer. He set an example which is 
something that none of us should want to have out there. And 
it's very difficult to see how the court system can function 
and the justice system can function if the chief executive 
officer of the Nation is permitted to get away with not being 
impeached, to have that kind of conduct tolerated.
    So I would suggest that really the charges of perjury and 
obstruction of justice, while he's sitting in office as 
President, are very integral to his duties as President. So it 
occurs to me that--also many other charges that are out there. 
But saying it's not connected with his office is not in and of 
itself a reason not to vote for impeachment.
    Chairman Hyde. The gentleman's time is expired.
    The gentleman from New York, Mr. Schumer. The gentleman 
from New York. I wanted to say Shuster, and I fought against it 
very hard. Mr. Schumer.
    Mr. Schumer. Thank you, Mr.----
    Chairman Hyde. All right.
    Mr. Schumer. Anyway, I thank the witnesses, all three 
people I know, and particularly my predecessor Liz Holtzman. I 
guess, starting in January, this will be the first time in a 
very long time our congressional district is not represented by 
a Member in the House Judiciary Committee, Manny Celler before 
you and then me. And I am sorry this is the way we are going 
out, our district is going out of the Judiciary Committee.
    My first question relating to a question--to all three of 
the witnesses, which relates to a question that I had asked the 
previous panel, and that is this: I am still sort of--more than 
sort of. I am still very perplexed by the view of some of the 
more moderate Republicans. I guess none of them on this 
committee, but a good number of the swing votes have expressed 
a view that, well, if only the President would make a fulsome 
apology--the President believes he has apologized already, but 
one, I guess, that is fuller or more direct or whatever, or 
reiterate it again, that then maybe they would vote against 
impeachment and for a lesser penalty.
    And it seems to me that that is a specious standard. I 
mean, here we are dealing with impeachment, one of the most 
serious things this committee, this Congress, can do, and it 
should be related to the actions of the President and whether 
they rise to the level of high crimes and misdemeanors, whether 
they rise to the high level that we have heard so many 
witnesses talk about; not about either an apology or about 
whether the President answered the questions to the liking of 
the members of this committee or to the Members of Congress.
    So I would just wonder, each of you having gone through 
this, having thought about this in a historic sense, do you 
think, did it ever cross your mind, let's say if Richard Nixon 
offered a full apology late in the day, that you would then--I 
mean, should that have influenced your decision as to whether 
he deserved impeachment? Mr. Owens?
    Mr. Owens. If impeachment is a political decision, and it 
is, my sense is that if Richard Nixon, right up to the point of 
when the Judiciary Committee undertook its debate at the end of 
July of 1974, had he gone public and said, ``I apologize, I 
committed serious offenses, I thought I was acting in the 
public's interest,'' my sense is the public would probably have 
forgiven him and the Judiciary Committee would not have voted 
articles of impeachment, but certainly even if the House passed 
them, the Senate would not have convicted.
    When the three smoking guns turned up, the recordings, in 
which Mr. Nixon was found to have directed the CIA to tell the 
FBI to back off the Watergate investigation, within as I 
recall, 30 hours of the break-in at Watergate, until those came 
out I think perhaps he might have escaped because I think the 
public at that time did not want to impeach even that unpopular 
President.
    It is a wrenching decision on the public, very painful, to 
impeach a President.
    Mr. Schumer. You're saying what turned the public's mind 
was----
    Mr. Owens. And I think Richard Nixon could have turned that 
around.
    Mr. Schumer. But you are saying what turned people's mind 
were the actions of the President, not an apology or something 
like that? Aren't I correct in assuming that?
    Mr. Owens. If the President had come clean, I think it 
would have made a big difference then.
    Mr. Schumer. Okay.
    Father Drinan. Well, Senator, I think the crimes then were 
so appalling. As I reread our report here, it was just 
unbelievable the things in which they were involved with Tony 
Lasowitz. And the memory, it is appalling. So I don't think 
that anybody mentioned censure at that time and that it was 
just proceeding. Furthermore, censure is not in the 
Constitution; the Congress has the one decision to make: 
Impeach or not impeach.
    People say, well, the Constitution does not forbid censure, 
which is true; and I think the people would accept censure in 
this country now if we would get a Christmas present that this 
would all go away. But I don't think that the concept of 
censure ever really came up. If he could have apologized 
again--but he never apologized, really. He made more 
revelations when he was required to do them, but he never 
really said that he was sorry.
    Mr. Schumer. Ms. Holtzman.
    Ms. Holtzman. Well, Senator--I like the way that sounds.
    Mr. Schumer. Thank you.
    Ms. Holtzman. I think it is very hard to speculate about 
what would have happened.
    The fact of the matter is, we had those facts. None of us 
sought, or I think few of us sought the responsibility of 
sitting in judgment on the President. It was extremely 
difficult. It was very sad. It was one of the most difficult 
tasks actually to cast that vote. All of us searched our 
conscience and all of us felt that a very high standard of 
evidence had been met.
    Remember, what we were confronted with----
    Mr. McCollum [presiding]. The gentleman's time has expired, 
unfortunately. I let you answer as much as I can, Ms. Holtzman.
    Mr. Gekas, you are recognized for 5 minutes.
    Mr. Gekas. I thank the Chairman.
    Congressman Owens, you stated in the recitation of the 
provisions in the Watergate report, or the committee language, 
that what was being considered there was an attack on the 
system of government, and that's what gave pause to many of you 
as you deliberated in that era. So you felt all of these 
offenses that were lined up were attacks on the system of 
government.
    You further stated, in answer to some of the hypotheticals 
posed to you by the gentleman from Florida, like fraud and 
murder and so forth, that really that's up to the Judiciary 
Committee of the time and of the circumstance on what they then 
have to deliberate to determine whether or not an offense was 
an attack on the system of government. Am I paraphrasing you 
fairly correctly?
    Mr. Owens. If I had the right to revise and extend, I would 
have said that I think the 25th amendment would have taken care 
of his first hypothetical before it ever came to the Judiciary 
Committee.
    Mr. Gekas. The murder, I am not----
    Mr. Owens. But the decisions on impeachment and the 
evaluation of the evidence are first given to the Judiciary 
Committee.
    Mr. Gekas. And if this committee or the majority of this 
committee felt so strongly that the commission of perjury by 
the President of the United States, if proved, in front of a 
grand jury, and/or in front of a deposition in front of a 
Federal judge, if we felt so strongly that they were committed 
and constituted an attack on the system of government in that 
this was perpetrated in order to destroy the rights of a fellow 
American citizen who had instituted a legal case against the 
President in those courts, and where a Federal judge was 
sitting, or Federal officers in the case of a grand jury, is 
this not, I say to you, within the realm of our possibility of 
adjudging that as an attack on the system of government? Would 
you second-guess us on that?
    Mr. Owens. If I as a member of the committee felt that 
strongly and intellectually believed, as you suggest in your 
hypothetical, then I would vote to impeach.
    Mr. Gekas. Thank you, Mr. Owens.
    Ms. Holtzman.
    Ms. Holtzman. Yes, sir.
    Mr. Gekas. In your written statement, you said that you 
felt that Mr. Starr overstepped his jurisdiction by arguing for 
impeachment--arguing for impeachment on this ground or any 
ground.
    Are you referring to his referral as being an argument of 
impeachment?
    Ms. Holtzman. Yes. I believe, Congressman, that when we 
wrote that statute, and I was one of the authors, we had in 
mind the experience of what happened during Watergate with Mr. 
Jaworski, in which we received no brief for impeachment, we 
received no argument for impeachment; we simply received a 
factual submission with what is called a road map on top of it, 
and that was it. We had to draw our own conclusions.
    Mr. Gekas. I recite from the statute itself that says that 
the Independent Counsel--in carrying out the Independent 
Counsel's responsibility under this chapter that may constitute 
grounds for an impeachment; that is, that the mandate is that 
the Independent Counsel shall advise the House, and all of 
these, that may constitute grounds for an impeachment.
    So when--he has one of two choices: to do nothing or to 
report that there is nothing impeachable and therefore we close 
the case; or he refers something that may constitute grounds 
for an impeachment. Isn't that following the mandate of the 
statute?
    Ms. Holtzman. With all due respect, sir, no.
    Mr. Gekas. No?
    Ms. Holtzman. Because there is a third choice, which is 
what we had in mind. What we had in mind was what Mr. Jaworski 
did. What Mr. Starr did was, he said these are 13 grounds for 
impeachment. That is not what Mr. Jaworski gave us. What Mr. 
Jaworski gave us were backup documents and factual statements. 
It was not--it was not an argument----
    Mr. Gekas. Thank you. I have to ask Father Drinan one 
question. Father Drinan, in your written statement, regretfully 
I cannot find the word ``vengeance,'' but I think you intoned 
it in your direct testimony; that some of us, or people who are 
considering the impeachment of the President or considering the 
articles of impeachment are driven by vengeance. Did you mean 
that? Did you say the word ``vengeance'' or am I--did I mishear 
you? Because it is not in your written statement.
    Father Drinan. No, that term is not in the document.
    Mr. Gekas. Pardon me?
    Father Drinan. That term is not in the document, no.
    Mr. Gekas. You used it, though? You used it in your oral 
statement?
    Father Drinan. Yes.
    Mr. Gekas. Do you seriously believe that any member of this 
committee or any Member of the House, in the final judgment 
that he or she will render on impeachment proceedings or 
articles of impeachment, will be driven by vengeance?
    Father Drinan. I will leave God to judge that.
    Mr. Gekas. Thank you. And then maybe God's messengers 
should not prejudge the God that would make the judgment.
    Mr. McCollum. Mr. Gekas, your time has expired.
    Mr. Berman, you are recognized for 5 minutes.
    Mr. Berman. Thank you, Mr. Chairman. I thank the former 
members for their excellent testimony.
    I listened to what Mr. McCollum and some of the others on 
the Majority side are saying as to this issue of lying under 
oath. And they seem to be taking the view that in and of 
itself, when it involves the President of the United States, 
lying has ripple effects in terms of our system of justice, in 
terms of the message it sends to the American people, that 
raises it to a level that perhaps is different than in other 
situations.
    I would like to hear your thoughts about that argument, the 
implications of lying under oath and the extent to which it 
should be treated in the fashion that they are treating it.
    Father Drinan. Well, Congressman, there are a thousand 
hypotheticals but we have only one case.
    Mr. Berman. Yes.
    Father Drinan. The House Judiciary Committee has never 
really heard evidence on that one case. The President has never 
had an opportunity to cross-examine those who said things 
against him. That's one of my fundamental difficulties and the 
difficulties of the whole country with this whole proceeding. 
We can speculate about the impeachment. All I know is that when 
the framers put it into the Constitution, they said and 
affirmed this should be very rare. This is only for the 
occasion, as Benjamin Franklin says, when we want to anticipate 
and prevent assassination.
    Mr. Berman. Well, I don't want to speak for anybody else, 
but I have to say that that argument doesn't do that much for 
me. Yes, I think questions of burden of proof are important.
    There is a ream of grand jury transcripts, and while the 
process I would have liked would have brought that before us in 
an orderly fashion, we the minority, and the President's 
lawyers, had the opportunity to call those same people and 
subject them to cross-examination. I don't consider this 
process defective in and of itself because of that. The 
question here that I would like answered is dealing with this 
issue of statements under oath and the broader context of that.
    Father Drinan. I will defer to my colleagues.
    Ms. Holtzman. Mr. Berman, if I might just give you history 
in terms of an answer to your question. We had two efforts to 
impeach a President. One was Andrew Johnson, because people 
didn't like his policy with regard to reconstruction and they 
picked on one act, the removal of a Cabinet member. One act. 
That impeachment went down in history as a scandal.
    Mr. Berman. Yes.
    Ms. Holtzman. Watergate, the President lied to the American 
people on numerous occasions. That was not the basis on which 
we removed him. We had 32 separate counts under obstruction of 
justice, including offering presidential pardons to burglars. 
We had several counts under abuse of power, including the 
misuse of the CIA to get the FBI to stop an investigation; 
including the use of the IRS to audit people's tax returns 
improperly; including the creation of a plumber's unit to break 
into a psychiatrist's office.
    You had such a spectrum of abuse and illegality and 
misconduct that there was no question that his actions 
constituted an impeachable offense, and that the President 
needed to beremoved. Here you are talking about, in essence, 
the theme and variation is the President engaged in sexual misconduct. 
He wanted to conceal it, and that is what we are talking about in all 
of its variations and guises. It certainly doesn't rise to what we saw 
in Watergate.
    And in my remarks to this committee, I urged you to think 
about how history will look at you. If you act on a single act 
of misconduct which does not involve the powers of the 
presidency, how will history judge you if you try to remove a 
President of the United States?
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from North Carolina, Mr. Coble.
    Mr. Coble, will you yield to me briefly?
    Mr. Coble. I will indeed.
    Chairman Hyde. Thank you.
    Father Drinan, you made the statement that one flaw with 
this process is that the White House, the President, hasn't had 
an opportunity to cross-examine his accusers. Is that correct? 
Is that your position?
    Father Drinan. I object to the use of the grand jury 
testimony in toto. I don't think that's what the Constitution 
intended. The Constitution gives the sole power of impeachment 
to the House.
    Chairman Hyde. Well, let's get back to my question. Do you 
object to the fact that the President's lawyers haven't had a 
chance to cross-examine witnesses, their accusers? Is that an 
objection of yours? Yes or no?
    Father Drinan. We gave that to Mr. St. Clair in 1974, and I 
think that should be made clear----
    Mr. Watt. Mr. Chairman, is the lighting system working down 
there or are we operating without it?
    Chairman Hyde. Thank you for reminding me of that. I 
appreciate that.
    Mr. Watt. Thank you, Mr. Chairman.
    Chairman Hyde. I am going to try a third time. Is it a 
complaint of yours that the President has not had an 
opportunity to cross-examine his accusers? Is that one of your 
complaints?
    Father Drinan. I think the people have the right, the 
people of this country have a right, as well as the accused.
    Chairman Hyde. Okay. I will take that as a yes.
    What witnesses would the President like to cross-examine 
and why haven't the Democrats invited them to be here and 
testify?
    Father Drinan. I can't answer that, Mr. Chairman.
    Chairman Hyde. I didn't think so. Mr. Coble.
    Mr. Coble. I hope I have better luck than you did, Mr. 
Chairman.
    Let me ask a question to the panel. How many Presidents 
have been accused of lying to a grand jury while in office, A; 
and B, how many Presidents have been accused of lying to a 
court of law under oath while in office, if you know? Does 
anyone know the answer to that?
    Well, I take it silence indicates that you do not.
    Let me move along then.
    Mr. Owens. Mr. Coble.
    Mr. Coble. Yes, sir, Mr. Owens.
    Mr. Owens. I would only point out to you that the lies 
which President Nixon made were not under oath, but they were 
material and they were devastating because he was assuring the 
American people that he was enforcing the law; that 
investigators were getting to the bottom of the break-in.
    Mr. Coble. Let me move along.
    Mr. Owens. They were not under oath, but they were 
devastating because of what they dealt with.
    Mr. Coble. My time is running. The reason I asked you is 
because much has been made about the historical significance 
and connection to impeachment. I wanted to get that historical 
fact in, if anyone knew.
    Now, many people have compared this crisis to Watergate. 
There are similarities and there are distinctions. I recall 
during the days of Watergate, those who opposed impeachment 
simply said, my gosh, it is only a second-rate burglary; what 
is the big deal?
    Well, it was indeed a big deal because it involved cover-
up, it involved obstruction of justice, it involved abuse of 
power, it involved the use of government employees--paid by the 
taxpayers--to lie, to evade, to deceive. So it extended far 
beyond a second-rate burglary.
    Now, nearly a quarter of a century later, we hear people 
who are opposed to impeachment in this instance: Well, my gosh, 
it only involves consensual sex among consenting adults; what's 
the big deal?
    Well, the big deal may be a duplication of Watergate 
problems: cover-up, evasion, lying, deception, using government 
employees--paid for by the taxpayers, I might add again--to 
cover up. It may go beyond that. And I resent the fact that 
some accuse us of vengeance.
    I don't mean to speak for anyone but I suspect very few in 
the Watergate era, who sat on that House Judiciary Committee, 
were gleeful about that exercise. Now, there may have been one 
or two firebrands. There may be one or two firebrands here 
today who are gleeful about it, but I dare say that the great 
majority of Democrats and Republicans alike on this Judiciary 
Committee are not gleeful at all about this. But I don't think 
we can afford to dismiss the facts that have been laid at our 
feet.
    The Constitution requires us to respond, and if we vote in 
favor of impeachment, then we are accused of being partisan 
firebrands, and I resent it and I think most Americans will 
probably resent it.
    I am getting a little carried away, Mr. Chairman, but I 
think I need to say this. Many people have made a big point, a 
salient point about the partisanship of this committee. Well, 
this is an energized, spirited, polarized group, I will admit, 
and when the television lights are illuminated, that energy 
seems to intensify. But for the benefit of our viewers, we get 
along pretty well with one another once those TV lights are 
extinguished; a pretty good group, pretty good men and women, I 
might add. Most folks don't know that because they see the 
other side of it, but we are going about our business. And if 
anybody thinks that vengeance is involved, I will meet them in 
the parking lot later on tonight.
    I yield back the balance of my time, Mr. Chairman.
    Chairman Hyde. Thank you very much.
    On that high note, the gentleman from Virginia, Mr. 
Boucher.
    Mr. Boucher. Thank you very much, Mr. Chairman.
    I was pleased to note in the statements made by our 
distinguished former colleagues who are here with us this 
afternoon, references to the concern that we all should have 
about Members of the House who might apply a lower standard to 
determining whether or not articles of impeachment should be 
approved in this matter.
    Several of our witnesses suggested that Members might 
consider themselves to be a grand jury and apply a standard on 
the order of probable cause to making that determination.
    The committee on which you served, in its 1974 report in 
the Watergate matter, established a standard that I think is 
far more appropriate, and the standard that was adopted by your 
committee on a bipartisan basis would make impeachment 
available only for conduct that is, and I will quote the 
language, seriously incompatible with our constitutional form 
of government or the performance of the constitutional duties 
of the presidential office. And that is a standard which I 
think is much more appropriate for the House of Representatives 
to employ, as well as for the Senate to employ.
    It occurs to me that the reason that some Members of the 
House may be considering applying this lesser standard of 
probable cause is because there has not been a sufficient focus 
so far on the kinds of harms that can occur to the country just 
by virtue of the House itself voting for articles of 
impeachment. And those harms would be first of all a 
polarization of the Nation well beyond what it is today; 
secondly, a diversion of the Congress and the President from 
their basic responsibilities of tending to our urgent needs; a 
possible immobilization of the Supreme Court while the Chief 
Justice presides at a Senate trial; the lowering of the 
standard for future impeachment inquiries, and there probably 
is a longer list.
    Today is an opportunity for us to begin, in a serious 
manner, the dialogue about what these harms really are. And so 
I want to welcome our former colleagues who have much to say on 
that subject. You have broached that in your testimony, and I 
would like to provide you with the balance of this time to 
talk, if you are inclined to do so, about what you see those 
harms being and why the House of Representatives ought to apply 
the higher standard well beyond probable cause, the standard 
announced by your committee in 1974, as we consider whether or 
not to vote articles of impeachment.
    Mr. Owens.
    Mr. Owens. I think that the increased polarization which 
incidentally already exists--more than two-thirds of the people 
in every poll that I have seen recently do not want this 
President impeached--the polarization would increase 
dramatically if the House passes articles of impeachment and 
sends them to the Senate to be tried.
    Father Drinan mentioned slowing down, the stoppage of much 
of the government, taking time of the Chief Justice of the 
Supreme Court, the terrible feelings and passion that depriving 
a President of his elected time in office, which the people 
have bestowed upon him would cause. I think it would have a 
terrible impact upon the public; I don't think there is any 
question about it.
    Hence, some of us we tried to apply in 1974 the for test 
for whether we would pass articles, not by the ``clear and 
convincing'' that one thinks of as typical evidence for an 
indictment but, rather, ``beyond a reasonable doubt'' so that 
the Senate would, in fact, have the evidence on which to 
convict. And it was clear that Richard Nixon would be convicted 
by the Senate and removed from office, and only under those 
circumstances should you put the country to this kind of a 
test.
    Mr. Boucher. Ms. Holtzman.
    Ms. Holtzman. I think I addressed that in my arguments. I 
think all of us felt--well, I can't speak for everybody. I know 
I felt that way. I think many of my colleagues felt that we had 
to vote as if we were on the Senate, that we couldn't just 
simply say, look, guys and gals in the Senate, this is your 
job, we are just going to hand this ball over to you, hot 
potato, and you handle it; because we are talking about the 
United States of America and all of its people, all of the huge 
tasks that have to be dealt with now, the huge disruption that 
will take place if articles are voted. The Senate will be tied 
up. How can we pass legislation to protect Social Security, to 
improve education, or to deal with agricultural problems or the 
environment? The Senate is going to be sitting there, day after 
day after day, hearing testimony about where the President did 
or did not touch Monica Lewinsky and what she said about it, 
and what anybody else might have said about it.
    Chairman Hyde. The gentleman's time has expired.
    Ms. Holtzman. It seems to me not exactly what we want.
    Mr. Boucher. Thank you, Mr. Chairman.
    Chairman Hyde. You bet.
    The gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Ms. Holtzman, I would like to point out a couple of 
passages in your statement. The first passage is this--you 
point out that a trial in the Senate would disrupt the workings 
of the Senate and it would disrupt the presidency as well. 
Certainly to a large extent, I am sure that that is true. You 
didn't mention an alternative which is pretty obvious and which 
has been recommended by over 100 major newspapers, and that's 
the possibility of resignation.
    The other passage I want to refer to, and it sort of 
follows up a little bit on what Mr. Boucher was discussing, 
too--you say, in Watergate when we voted for impeachment, wedid 
so because we believed that President Nixon should be and would be 
removed from office. We didn't operate on a watered-down standard of 
evidence. We weren't passing the buck to the Senate where the real 
action was and would take place. We voted as if we were in the Senate.
    Let me read to you from another expert. She, like all of 
you, was a Democrat. She was a very distinguished member of 
this Judiciary Committee when you all served on it. She also 
happens to be a former member, Congresswoman from Texas, and 
you all know who I am talking about, and that's Barbara Jordan. 
But here is what she said: It is wrong, I suggest, it is a 
misreading of the Constitution for any Member here to assert 
that for a Member to vote for an article of impeachment means 
that that Member must be convinced that the President should be 
removed from office. The Constitution doesn't say that. The 
powers relating to impeachment are an essential check in the 
hands of this body, the legislature, against and upon the 
encroachment of the executive. In establishing the division 
between the two branches of the legislature, the House and the 
Senate, assigning to the one the right to accuse and to the 
other the right to judge, the framers of this Constitution were 
very astute. They did not make the accusers and the judges the 
same person.
    That seems to me to directly refute what you said in your 
statement about the members of the committee voting as if they 
were in the Senate.
    Ms. Holtzman. I am not sure that it necessarily--your 
conclusion necessarily follows. I do think that----
    Mr. Smith. Okay. I really wasn't asking you a question 
there.
    Ms. Holtzman. Okay.
    Mr. Smith. I want to read another passage and then give you 
a chance to respond to both. I was voicing my opinion that the 
plain meaning of the word seems to me to contradict what you 
have said.
    But here is another statement by Barbara Jordan in that 
same delivery. ``Beginning shortly after the Watergate break-in 
and continuing to the present time, the President engaged in a 
series of public statements and actions designed to thwart the 
lawful investigation by government prosecutors. Moreover, the 
President has made public announcements and assertions bearing 
on the Watergate case, which the evidence will show he knew to 
be false.''
    She said, ``these assertions, false assertions,'' were 
``impeachable.''
    Now, a couple of follow-ups real quickly. One, the 
Independent Counsel pointed out, I think accurately, that the 
President over a 7-month period of time had a half-dozen 
occasions where, if he had chosen to do so, he could have made 
a crossroads decision. He had a decision whether to continue a 
pattern of deception or whether to tell the truth. The 
Independent Counsel found that he chose, unfortunately, to 
continue that pattern of deception.
    And then let me also read a statement that Mr. 
Stephanopoulos, who was a senior adviser of the President, 
said--this is a quote:
    ``This was no impulsive act of passion. It was a coldly 
calculated political decision. He spoke publicly from the 
Roosevelt Room. He assembled his Cabinet and staff and assured 
them that he was telling the truth. Then he sat back silently 
and watched his official spokespeople, employees of the U.S. 
Government, mislead the country again and again and again.''
    Now, my final question is this: Don't you think that the 
President, in Barbara Jordan's words, has engaged in a series 
of public statements and actions designed to thwart the lawful 
investigation of government prosecutors?
    Ms. Holtzman. I think that the President's statements were 
designed to cover up sexual infidelity, a relationship with 
Monica Lewinsky, a very embarrassing and wrongful relationship.
    Mr. Smith. Wasn't he, though, trying to thwart the lawful 
investigation by government prosecutors?
    Ms. Holtzman. It depends--well, I think I answered your 
question. But I also want to make the point here that if you 
want to compare this to Watergate, it is a very false 
comparison because, in Watergate, we had not simply false 
statements. We had false statements about criminal conduct.
    Mr. Smith. I very specifically----
    Ms. Holtzman. Here you have false statements about--
    Mr. Smith. I would like to reclaim my time.
    Ms. Holtzman [continuing]. Inaccurate statements about 
sexual infidelity.
    Mr. Smith. Ms. Holtzman, what I read that Barbara Jordan 
said was very specific, very applicable and impeachable 
conduct.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Father Drinan, you were asked about what witnesses ought to 
be called. We have asked for the list of allegations. We have 
known that Mr. Starr started off with 10--started off with 11, 
ended up with 10. There have been other variations of the 
allegations. The scope changes from week to week. It is 
Kathleen Willey one week; it is campaign finance another week; 
it is not campaign finance the next.
    According to the National Law Journal's hotline, quoting 
ABC's Douglas, quote, ``ABC News has learned that the 
Republicans may accuse the President of different grand jury 
lies than Kenneth Starr did in his report to Congress. Sources 
say they will shy away from Starr's most sexually explicit 
allegations that Mr. Clinton lied about which parts of Monica 
Lewinsky's body he touched. Instead, GOP committee lawyers cite 
new charges.''
    Now, the gentleman from Arkansas, Mr. Hutchinson, alerted 
Mr. Craig that there may be some other charges that he might 
want to look into without a clear definition of what the 
allegations are. Is it fair to ask which witnesses ought to be 
called?
    Father Drinan. Well, Mr. Congressman, that's not up to me 
to decide. I think that many people, maybe the majority, feel 
that the House Judiciary Committee is on the wrong path, that 
it has been unfair, it has been erratic, but that's not up to 
us to decide.
    All I know is that we were called here today to come and 
tell about 1974. As I recall, there was no criticism of the 
committee. At first, people said this is necessary, but as the 
evidence came out, they applauded the committee. And we are 
here to compare it, and I think that the sense of the public in 
the country is that the something bad has happened in the 
Judiciary Committee.
    Mr. Scott. And is the--would you have taken the 
prosecutor's testimony as evidence?
    Father Drinan. No, I think that that is basically wrong, 
and I agree with Sam Dash who resigned over this very point. He 
said that this goes beyond the Constitution, and as Ms. 
Holtzman said, the statute makes it very clear that he is to 
give this evidence to this body.
    Mr. Scott. Did you presume guilt unless the President came 
forth with evidence in his defense?
    Father Drinan. No. You went to Boston College Law School; 
you know that's bad law.
    The President, like all of us, is entitled to the 
presumption of innocence.
    Mr. Scott. Mr. Owens, can you tell me what proof there was 
that President Nixon had committed tax fraud? Was there any 
question about whether or not that allegation was true?
    Mr. Owens. I don't think that anybody questioned the back-
dating of the deed, which saved him hundreds of thousands of 
dollars, was supervised by him, and probably signed by him 
after the fact, and back-dated. The evidence was overwhelming 
as to tax fraud and the supplementing of his income by many 
gratuities by agencies of the Federal Government.
    The evidence was very clear, and it is listed, of course, 
in our report in some detail.
    Mr. Scott. Well, income tax is a crime and it is a very 
serious crime. Why was it not adopted as an impeachable 
offense?
    Mr. Owens. There was a great deal of disagreement. Father 
Drinan and I wrote an op-ed piece in the Times about a month 
ago pointing out that we believed--and the majority of the 
committee believed basically because we found it to be personal 
misconduct, as opposed to abuse of presidential powers, We felt 
that it did not rise to impeachability.
    There were civil opportunities to redress those wrongs. A 
President can be sued civilly as well as criminally, prosecuted 
criminally, of course, while he is President or after, and I 
thought there were other, better remedies. It did not rise to 
impeachability in my view.
    Mr. Scott. Thank you, Mr. Chairman.
    Chairman Hyde. The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Thank you all, Panel, for being here today. As former 
Democrat members of this House, I didn't have the honor of 
serving with you, Father Drinan, or Ms. Holtzman, but I did 
have the opportunity to serve with Wayne Owens.
    Ms. Holtzman, do you agree with Father Drinan and with 
Wayne Owens that income tax evasion and perjury are pretty much 
on the same level?
    Ms. Holtzman. They may or they may not be.
    Mr. Gallegly. Okay.
    Ms. Holtzman. It depends on the circumstances.
    Mr. Gallegly. One question I have for you, Ms. Holtzman, 
the records from the Watergate era show that you voted in favor 
of an article of impeachment dealing with the allegations that 
President Nixon lied on his personal income tax return. Does 
that square with your position on perjury?
    Ms. Holtzman. I think I was just previously asked that, but 
if you would like me to go into it again, I would be happy to 
do that.
    Mr. Gallegly. That's fine.
    Prior to January of 1998, Mr. Owens, have you ever gone on 
record publicly as stating that lying before a Federal grand 
jury is not an impeachable offense?
    Mr. Owens. I feel a little like Henry Hyde must feel about 
his own testimony during Iran-Contra. I could be surprised by 
something that I may have said in the past. At age 61, I can 
tell you what the reflection of the last 24 years has brought 
me to.
    Mr. Gallegly. I would love to chat with you after the 
meeting, but we have a very limited amount of time. Do you 
remember any specific----
    Mr. Owens. I don't know.
    Mr. Gallegly. Father Drinan, do you remember, prior to 
1998, ever taking a formal position that perjury does not reach 
the level of an impeachable offense?
    Father Drinan. I am not certain what the--what the question 
is, Congressman. Would you put it in----
    Mr. Gallegly. Prior to January of 1998 when this story 
broke, had you ever taken a position, that you remember, that 
perjury did not meet a level consistent with an impeachable 
offense?
    Father Drinan. Well, we didn't have to write about 
impeachment during those years, and I have no recollection that 
I talked about perjury as an impeachable offense.
    Mr. Gallegly. Thank you, Father.
    Ms. Holtzman.
    Ms. Holtzman. Well, perjury may or may not be an 
impeachable offense.
    Mr. Gallegly. Do you remember ever having taken a position 
prior to January 1998?
    Ms. Holtzman. On false statements, yes, in the Nixon 
impeachment hearings.
    Mr. Gallegly. Okay.
    Wayne, you have stated--and correct me if I am wrong--that 
the President should not be impeached because the underlying 
lies, or perjury by the President, are not serious enough to 
warrant impeachment. At the same time, we have long lists of 
persons in Federal jails across this country for perjury. In 
fact, in my own home State of California last year we had 4,000 
individuals prosecuted for perjury, last year alone.
    If the President is not impeached, do you think the 
President should pardon these folks?
    Mr. Owens. Elton, using the standard you set here for our 
communications, my own sense is that you can't trivialize an 
impeachment of the President by trying to make it comparable to 
any other offense charged against any other person; and I don't 
think you can hypothesize and make it similar, as you suggest 
in your hypothetical.
    I don't think that I can give you a very good answer to 
that.
    Mr. Gallegly. Well, I certainly don't mean to
    trivialize.
    Mr. Owens. This President's offenses, in my view, do not 
rise to impeachability.
    Mr. Gallegly. Reclaiming my time, certainly it was not my 
intent to trivialize this, in fact, quite the contrary.
    In your testimony that the President's lies are not serious 
because--and I think you said--they involved lying about sex, 
and many have said, oh, everybody lies about sex. If this is 
the case----
    Mr. Owens. Oh, that isn't what I meant, Elton. I think they 
are very serious and should be punished. I don't think it 
should be capital punishment. I think they are lesser offenses.
    I think censure is appropriate. I join with Gerald Ford on 
that.
    Mr. Gallegly. I think lying under oath is serious, period.
    Mr. Owens. Of course.
    Mr. Gallegly. I think that that is the real issue before us 
here. It is not about sex.
    Mr. Owens. It is very important, and I did not mean to 
trivialize that either, Elton.
    Mr. Gallegly. The issue here is perjury, lying under oath. 
Telling the truth is the basic foundation of our entire 
judicial system, and I think that that is the issue and we have 
been getting, I think, a little bit astray here when people try 
to make sex the issue here.
    I firmly believe the cornerstone of our whole judicial 
system is predicated on telling the truth, and I certainly 
would be the last one to trivialize lying.
    Mr. Owens. And I hope the House of Representatives--if I 
may say, in response to that, Mr. Gallegly, I hope the House of 
Representatives will not miss its opportunity to censure and 
condemn this President's actions. I think it is highly unlikely 
that the Senate would ever convict the President based on an 
article you send over. If you send it over to see whether they 
will or not, I think you create a great constitutional 
conundrum.
    Mr. Gallegly. Thank you, Mr. Chairman.
    Chairman Hyde. Thank you.
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. And I want to thank 
these witnesses for being here.
    I don't profess to be a great student of the Nixon 
impeachment process, and this has been very educational to me 
to see some of the interworkings.
    One thing in particular that I am struck by is, we have 
this public perception that the Nixon impeachment vote was a 
very bipartisan vote, and I guess by the standards under which 
we are operating today, it was a very bipartisan vote in the 
committee. But notwithstanding the overwhelming number of 
charges and the magnitude of what I think everybody recognizes 
now was going on, apparently there were still people who were 
not convinced that the Nixon offenses rose to the level of 
impeachable offenses.
    Am I correct in that on the committee, or--
    Mr. Owens. There were 10 members of the House Judiciary 
Committee, including the current majority leader of the other 
body, who did not vote for any of the three articles of 
impeachment which passed. But as I recall the chronology, 
something like 6 days after we passed and completed our 
activities here, the President's--the three ``smoking guns,'' 
these three recordings, were released which showed that the 
President, among other--proved beyond a reasonable doubt that 
he had instructed the CIA to instruct the FBI to get out of 
Watergate and so forth, directly contradicting direct testimony 
that he had given.
    Then even Trent Lott and his nine colleagues on the 
Judiciary Committee abandoned the President and said they would 
vote to impeach on the House floor. Barry Goldwater and John 
Rhodes and Hugh Scott went down to the White House and said, 
``Mr. President, it is over. You will be removed from office. 
You will lose your pension and every perk of a former 
President. The jig is up; it is time to leave.'' And the 
President, former President at that point, had the dignity to 
accept their judgment.
    But right up to release of the ``smoking guns,'' there was 
a significant portion of the Members of the House and of the 
committee who did not accept that the offenses reached the 
impeachability level.
    Mr. Watt. And were all 10 of those members Republican 
members of the committee?
    Mr. Owens. Yes, they were, yes. Yes, sir. You had 21 
Democrats and seven Republicans who voted for impeachment 
before the ``smoking guns.''
    Mr. Watt. I guess I raise that because my colleague, Mr. 
Scott, and I had an interesting discussion one day when the 
proceedings were going on. I leaned over to him and I said to 
Mr. Scott, what if President Clinton were a Republican 
President? Do you think we would be taking the same position?
    How did you rise above the--how did your committee rise 
above the partisanship? Can you talk to me a little bit about 
how-- I mean, because one of the things that I have been really 
troubled about is that this process has become so partisan and 
viewed by the public as being so partisan that I think that has 
colored the public's perception of even the credibility of the 
arguments on the other side.
    Mr. Owens. It was an exceedingly painful decision, for me 
especially. I was running for the Senate in the most Republican 
state in the Nation, a Democrat, where Richard Nixon had gotten 
72 percent of the vote 2 years earlier, and I was confident 
that that would be a serious political problem for me.
    And the only refuge, Mr. Congressman, is in, your realistic 
view of what the evidence requires. Given the serious 
constitutional obligations that are imposed upon members of the 
committee, you just have to say, consequences be damned; I will 
do what my conscience tells me I have to do under the 
Constitution.
    It was a very heavy responsibility, and I, honest to God, 
had no second thoughts about voting for impeachment.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Florida, Mr. Canady.
    Mr. Canady. Thank you, Mr. Chairman.
    I want to thank the members of this panel for being here. 
Your perspective on these issues is very important to us.
    Father Drinan, welcome back. We appreciated your earlier 
testimony to the subcommittee.
    I want to address the issue about the tax fraud article 
that has been discussed at some length here and begin by 
quoting Charles Black, who in his handbook on impeachment 
wrote, ``A large-scale tax cheat is not a viable chief 
magistrate.'' That's on page 42, if you have the book there.
    Now, I think I understand Ms. Holtzman has kind of a 
nuanced view about that; it would depend on the circumstances. 
But if I understand Father Drinan and Mr. Owens correctly, it 
is your--your position is to disagree with Charles Black. Is 
that correct?
    And please give a short answer. I am limited on time.
    Father Drinan. What precisely did Professor Black say on 
this?
    Mr. Canady. Pardon?
    Father Drinan. What precisely did Professor Black say?
    Mr. Canady. What I just read, quote, ``A large-scale tax 
cheat is not a viable chief magistrate.'' Do you disagree with 
that view?
    Mr. Owens. Yes, sir, I do, absolutely.
    Mr. Canady. Okay.
    Father Drinan.
    Father Drinan. I will concur with Mr. Owens.
    Mr. Canady. So you both disagree. That's consistent----
    Mr. Owens. We wrote an article in the New York Times, so we 
have to agree with each other.
    Mr. Canady. Okay. Well, that's consistent with what you 
have been saying today.
    Mr. Owens, let me ask you a question. Were you the only 
person named Owens on the committee during the time of the 
Nixon impeachment?
    Mr. Owens. Yes, sir. I hope I am not going to regret making 
that admission.
    Mr. Canady. Well, because I am looking at the transcript of 
the debate of the tax article with respect to President Nixon, 
and I would like to read your closing remarks in the debate to 
the committee.
    You said, ``And so we are here having to decide this issue 
without having any hard evidence that will sustain tying the 
President to the fraudulent deed but which will support, in my 
opinion, the closing and inferential gap that has to be closed 
in order to charge the President.''
    You then go on to conclude, ``I urge my colleagues to''--
``based on that lack of evidence, I urge my colleagues to 
reject this article.''
    Now, Mr. Owens, I candidly will have to say to you, I don't 
think that what you have said here is consistent with what you 
have been saying today.
    Mr. Owens. I think under the Rules of the House you can do 
that, Mr. Congressman.
    Mr. Canady. Well, I think the facts speak for themselves. I 
have read the whole debate, and it is my judgment that although 
there were clearly some members who believed that tax fraud by 
the President was not an impeachable offense, the majority, the 
vast majority of the members of the committee who expressed an 
opinion on that subject, said that they were either for the 
article, as Ms. Holtzman was, or they felt that there was 
insufficient evidence of fraud by President Nixon to proceed, 
as you said in your comments.
    So I find it a little disturbing that you would come before 
this committee today and make an assertion that is contrary to 
your own statement in the debate.
    Now, let me just say that I think that Charles Black was 
right, a large-scale tax cheat is not a viable chief 
magistrate. I agree with that.
    Mr. Owens. So you would have voted to impeach President 
Nixon?
    Mr. Canady. If there had been adequate evidence, if there 
was an evidentiary question there, which I think has to be 
settled as a separate matter. Just as there is an evidentiary 
question before this committee, we have got to make certain 
that we have an adequate basis for the conclusions we reach 
with respect to the allegations of perjury and obstruction of 
justice.
    But I will also say that just as a large-scale tax cheat is 
not a viable chief executive, I believe that a large-scale 
perjurer is not a viable chief executive.
    Furthermore, I believe that the evidence before the 
committee points to the conclusion that the President of the 
United States has committed multiple acts of making false 
statements under oath, and that's a serious matter that we are 
having to grapple with here.
    I hope everyone understands we are not enjoying grappling 
with this, but the facts cry out. We have to deal with this. We 
cannot turn away from it simply because it may be politically 
not expedient to deal with it, because the system of justice in 
this country is affected by what we do here today and what we 
will do as these proceedings move forward.
    Again, I thank all of you for being here. I yield back the 
balance of my time.
    Chairman Hyde. The gentlelady from California, Ms. Lofgren.
    Mrs. Lofgren. I would like to thank the panel for being 
here and sharing your experiences and recollection.
    I remember also back in 1974, and at that time, I had just 
finished my first year of law school, and I was working for 
Congressman Don Edwards and looking up at all of you sitting 
where I am sitting today, never dreaming that I would be here 
in these circumstances.
    I remember watching you as you all struggled, on both sides 
of the aisle, to cope with what faced you and the really grave 
subversions of government you faced and which you have recited 
today that were presented by the situation of then-President 
Nixon; and I remember in the '73 Judiciary Committee report the 
discussion of the abuse of power that would be necessary to 
meet the standard for ``other high Crimes and Misdemeanors.'' I 
don't have it in front of me, but something to the effect that 
it would be ``abusing powers that only a President possesses'' 
is one of the phrases in that report. And I thought that really 
kind of summarized the subversion of the government necessary, 
and that was a standard accepted by both Republicans and 
Democrats at that time.
    As you can see, today the standard has apparently changed, 
and I accept that people have legitimate good-faith beliefs 
that a false statement alone is sufficient to impeach. I just 
don't think that is the historical standard.
    And as I think about what we are doing here today, I think 
our constituency is not just today's voters. My children are 13 
and 16, the constituency for what we do today will be my 
children's grandchildren, because what we need to do is to make 
sure that we nurture and protect our system of government. This 
is the greatest country in the world, with the best system of 
government. Weneed to make sure that we do not impair our 
wonderful constitutional system, and what concerns me is that what we 
are doing now may have an impact on our system of government.
    I really think that we have been phenomenally successful in 
many ways because we have an executive who serves for a set 4-
year term, and if you don't like the guy, you know that in 4 
years he can be voted out. And that definitive term allows the 
President to deal successfully with other countries.
    And what I am wondering--and maybe, Father Drinan, you 
could answer this--if we are going to have this type of 
situation in which we will have the election and now with the 
Jones case as precedent in which you can sue a sitting 
President, we may have a litigation phase after the election, 
and then we will have an impeachment phase following the 
litigation phase. I am worried and concerned about what kind of 
stature and certainty the President will have in the future if 
we have got that kind of scenario instead of the certainty of 
4-year terms. And what will the implications be for this 
Nation? Do you have thoughts on that?
    Father Drinan. I think the implications are horrendous, and 
you are quite right, that if we weaken the independence of the 
presidency, who knows? The next President may want to change 
the rules on Cuba, and they say, we will indict you for that or 
impeach you for that, and he has been intimidated. And all 
history shows that the presidency was severely weakened for 30 
or 40 years after the attempted impeachment of Andrew Johnson.
    This has never happened in 220 years. I think that we 
should look at that.
    Furthermore--and I think the underlying thing is that the 
President is being charged, not with anything that relates to 
public policy or to the political function of the government, 
but for something personal for which he has apologized for his 
misstatements.
    Mrs. Lofgren. I know that in all likelihood the vote that 
we will take in this committee will be on partisan lines, which 
was different than '74. I am not making this allegation, but I 
have had constituents say that this is a Republican coup d'etat 
to take out a Democratic President they could not defeat.
    Whether you agree with that or not, should we be concerned 
that, in the future, impeachment will be used as a partisan 
tool?
    Father Drinan. Well, that's the great danger. I keep 
wondering why the arguments that the Republican majority use, 
why haven't they persuaded any Democrats? Why haven't they 
changed public opinion?
    There is something very fundamental in the American psyche 
that we don't want this process and that I tried to be--tried 
to listen to. What is that argument? And the people are very 
troubled. And to repeat what I have said before, I think there 
is going to be a big popular uprising against this process.
    Mrs. Lofgren. I will just close and say, usually the 
American people get it right.
    I yield back.
    Chairman Hyde. The gentleman from South Carolina, Mr. 
Inglis.
    Mr. Inglis. Thank you, Mr. Chairman.
    I am glad that Mr. Craig is still here with us, Mr. 
Chairman, because it is very important to note his testimony 
earlier in the day that, and I will quote, ``Let me assure''--
this is again the Special Counsel to the President. ``Let me 
assure the members of this committee, the Members of the House 
of Representatives and the American public of one thing. In the 
course of our presentation today and tomorrow, we will address 
the factual''--and factual is underlined--``and evidentiary 
issues directly.''
    Ms. Holtzman, do you have any facts or evidence relating to 
this case involving the President?
    Ms. Holtzman. What does that question mean?
    Mr. Inglis. Do you have any facts relating to the things of 
which the President is accused here today? Obviously not, 
right?
    Ms. Holtzman. No. That is not my answer, sir. That may be 
your answer to your question. It is certainly not my answer to 
your question.
    Mr. Inglis. What facts do you have?
    Ms. Holtzman. If you will let me, I will be happy to tell 
you.
    Mr. Inglis. Go right ahead and tell me what facts you have.
    Ms. Holtzman. One fact is the perspective of Watergate, the 
historical fact, what that means and how you place impeachment 
in a historical context.
    Mr. Inglis. Good.
    Ms. Holtzman. The other fact is, the questions that were 
raised with respect to how the public will deal----
    Mr. Inglis. Reclaiming my time, you have no evidentiary 
matters to present, either, do you?
    Ms. Holtzman. Okay, reclaim your time.
    Mr. Inglis. How about Father Drinan? Do you have any 
evidentiary matters to present?
    Father Drinan. Do you want new facts or reflections on old 
facts?
    Mr. Inglis. Generally in a legal case there are things 
called facts and evidence, and then there is the law. It seems 
to me what you are arguing here is the law, is it not?
    Father Drinan. We came, sir, to explain what we tried to do 
in 1974.
    Mr. Inglis. That is precedent, correct, Father Drinan? That 
is precedent, which is generally law, is that correct?
    Father Drinan. I think so.
    Mr. Inglis. Mr. Owens, do you have any facts or evidence to 
present in this case?
    Mr. Owens. That is our function today, to interpret for you 
what happened in 1974. It is full of facts. The contrast 
between what that President did and what this one did is, of 
course, where we are supposed to----
    Mr. Inglis. You would agree that----
    Mr. Owens [continuing]. Spend our time.
    Mr. Inglis. That is precedent, which is in the nature of 
law rather than facts or evidence.
    Mr. Owens. We are here to explain what happened and to 
interpret it as best we can, that is correct.
    Mr. Inglis. I am just trying to point out--and I don't know 
why Ms. Holtzman became so defensive about this--I am just 
trying to point out the great inconsistency in Mr. Craig's 
statement earlier today, that he--and this is not your fault, 
this is certainly not the fault of these three people before 
us. It is just that earlier today the Special Counsel to the 
President of the United States said that--today, before this 
committee----
    Mr. Owens. Excuse me, Mr. Congressman. Did he say that no 
witnesses would interpret old historical precedents for the 
committee?
    Mr. Inglis. The point I am interested in making is this is 
panel two, and Mr. Craig, we have yet to hear any facts or any 
evidence. There is nothing new here. In fact, we have already 
heard from Father Drinan once before. There is nothing new.
    So the great high bar Mr. Craig earlier set for himself and 
for the President, that this day and tomorrow are going to be 
the day that we hear evidence and facts that contradict the 
evidence before the committee, for panel two the score is zero 
facts, zero evidence. There are more panels to come, but I look 
forward to, throughout the rest of the day and tomorrow, 
keeping track every time about whether we have got any new 
facts or any new evidence.
    Again, I think it is very helpful, but we have heard it all 
before. It is very helpful, and I appreciate your time, but it 
is not what Mr. Craig said that he was going to deliver to this 
committee.
    Father Drinan. If I may ask, what do you mean by facts? We 
have been giving facts here since we started.
    Mr. Inglis. The facts, sir, that we want----
    Father Drinan. You want new facts about the so-called 
scandal? What do you want?
    Mr. Inglis. That is what I am interested in finding out. I 
want to know if there are any facts and evidence in this case 
that would tend to make us conclude that the President in fact 
did not lie to the American people, as he said he did. Maybe 
there are.
    Father Drinan. The White House gave you 185 pages of their 
case.
    Mr. Inglis. We are looking forward to it.
    Mr. Owens. Mr. Congressman, in dealing with facts, you 
taught 7-year-olds in this country what telephone sex is and 
oral sex, and what you can do with a cigar, and you had enough 
facts.
    I think it is the interpretation of the facts, may I 
respectfully say, which is required by this committee.
    Mr. Inglis. Okay, you disagree with the Special Counsel and 
President. Mr. Craig says he wants to present facts and 
evidence today and tomorrow. Apparently you are all on a 
different sheet of music, because that is not what you are 
doing.
    You are doing a very helpful thing, which is presenting the 
law and precedents. It is not facts. Facts would be evidence in 
this case.
    The Chairman. The gentleman's time has expired.
    The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me 
make my continuing objection to the shortness of the time of 
which the President has been given to make his case.
    Let me, for the record, note that Mr. St. Clair, in 
addition to bringing an enormous number of witnesses, 
participated, as I understand, with the 17 days executive and 
nonexecutive sessions. Mr. St. Clair, being the lawyer for Mr. 
Nixon, had the ability to examine and cross-examine witnesses. 
So I raise the concern that many of the esteemed and 
distinguished members of this panel have not been able to fully 
answer our questions.
    Let me thank the panel most of all for being here and 
providing us with, if not a complete understanding of the 
Watergate proceedings, at least a sufficient bird's-eye-view 
that would warrant us to question the process that we are 
engaged in at this time.
    One of our past Presidents said that one man with courage 
makes a majority. So I, too, want to offer this day and the 
next day to those Members of this body, this House, maybe this 
committee, who are thinking seriously about where we are, might 
I draw the committee to a dissenting view in the Iran-Contra 
that was signed on by seven Republicans, and the words are 
these:
    ``The President himself has already taken the hard step of 
acknowledging his mistakes and reacting precisely to correct 
what went wrong.'' ``There was no constitutional crisis, no 
systematic disrespect for the rule of law, no grand conspiracy, 
and no administration-wide dishonesty or cover-up,'' by 
dissenting Republicans, signed by Mr. Hyde and Representative 
Bill McCollum of this committee in the Iran-Contra affair.
    Let me say to the Members here, and as I cite these facts 
for you, would you also give us sort of an insight, if you 
will, as to what went on in your committee, short of those 
things that you are not able to discuss because maybe they were 
in executive session, in bringing out the fullness of the case?
    Because over and over again I hear my dear colleagues, my 
Republican colleagues, saying, ``Where are the fact 
witnesses?'' It is my understanding that you were able to bring 
fact witnesses, and subsequently, as Father Drinan said, there 
was a smoking gun of the tape talking about Mr. Nixon asking 
the CIA then to stop the FBI from investigating Watergate.
    But listen to this. Would you believe that alleged 
conversations by the President to a staff person, Mrs. Currie, 
about her recollections as to his whereabouts in the office or 
out of the office, at a time when she was not a witness to 
anything, or not a witness called for any proceeding, would be 
obstruction of justice; one question?
    In the referral by Mr. Starr, these words: ``Finally, the 
President made a third false statement to the grand jury about 
his sexual relationship with Monica Lewinsky. He contended that 
the intimate contact did not begin until 1996. Monica Lewinsky 
testified that it began on November 15th, 1995.''
    The conclusion of the Starr report: ``For all of these 
reasons, there is substantial and credible evidence that the 
President lied to the grand jury about his sexual relationship 
with Monica Lewinsky.''
    Can you tell me whether or not we have a constitutional 
crisis? Can you tell me whether or not you had and others had, 
meaning Mr. St. Clair, the opportunity to judge the credibility 
of witnesses inside of the proceedings that you were able to 
deal with? And can you tell me whether or not, in this 
instance, Mr. Clinton has as well acknowledged that he has 
misled the American people?
    And we could, if you will, not so much as a grand jury--but 
in that structure, determine not to proceed because we have 
found no reasonable basis upon which to impeach the President 
of the United States of America? Because we, though not in 
essence a grand jury, are the movers of this action and can 
decide that because of the frivolousness of it, we should not 
proceed.
    I know that the answers will have to be brief. Ms. 
Holtzman, I would appreciate it.
    Ms. Holtzman. Our process was never started by a grand 
inquisitor, it was started when the American people demanded 
that the House act after the Saturday Night Massacre.
    We had substantial actual evidence, including tapes of the 
President. When John Dean and the President disagreed about 
what happened, we did not start an impeachment inquiry. That 
was insufficient evidence.
    I am concerned, and I think you have raised that, that the 
actual determination of who is telling the truth, Monica 
Lewinsky or the President, will be made without a basis of 
hearing from the actual witnesses. I also do think that the 
facts of what happened in the past--and history is fact, it is 
not law, it is fact--are important in the determination of what 
this committee should do.
    We are not in a constitutional crisis now. The question is, 
will this committee and the House generate one for the country?
    The Chairman. The gentlelady's time has expired.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. I would like to 
thank these former Members of Congress for their participation 
today. They have been through what the members of this 
committee are going through now, and must understand how 
arduous a task this is, how unpleasant a task this is, so I 
take exception to some of the suggestions of the political 
motivations of the members of this committee.
    I once worked for a Republican member of this committee who 
served on the Watergate Committee on the Judiciary, former 
Congressman Caldwell Butler. He was one of those seven 
Republicans who voted for the articles of impeachment. I think 
it takes great courage and great integrity to vote out articles 
of impeachment against a President of your own party.
    I don't know what the vote will be in the final result in 
this committee or on the floor of the House, but I believe that 
Members on both sides of the aisle will try to show courage and 
integrity and act in that fashion.
    But I am very concerned about the motivation of the White 
House today in attempting to raise the bar, in attempting to 
try to describe the standards that we are applying here as 
being somehow different than the standards applied in the 
Watergate hearings.
    Congressman Canady, I think, has very correctly pointed out 
that there were many, including Congresswoman Holtzman, the 
only remaining member of the committee who still serves today, 
Congressman Conyers, who voted out an article of impeachment 
against President Nixon under circumstances in which he made a 
false oath on his tax return, so I think that that is an unfair 
standard.
    I think the effort to try to impose upon the committee the 
burden of ``beyond a reasonable doubt,'' the standard of proof 
in a criminal proceeding, is also incorrect. There is no 
evidence that the Watergate committee used such a standard. In 
fact, as Congressman Smith pointed out, Congresswoman Barbara 
Jordan explicitly rejected that standard. Some even set a much 
lower bar.
    Let me read you this quote: ``We are seeking what some 
people have described as whether there is probable cause, and I 
do not think it really reaches that. I have not found anything 
in the literature that says the House is looking even for 
probable cause. We are trying to find out whether there are 
enough matters in the articles we draw up that would warrant a 
trial that would resolve the questions.''
    That was said by Congressman Conyers, the Ranking Minority 
Member, during the Watergate proceedings. I think that is too 
low a standard, quite frankly. I think clear and convincing 
evidence is an appropriate standard for this committee to look 
at this evidence.
    But this effort to suggest that this committee is 
politically motivated in our efforts is contradicted, this 
effort on the part of the White House and the White House's 
witnesses to suggest that there is somehow a different standard 
being applied here, when in point of fact the evidence is quite 
to the contrary.
    It has been suggested, and Congresswoman Holtzman, I think 
you suggested, this is simply merely lying about an 
embarrassing personal situation, attempting to cover that up. 
But before the Federal grand jury, Mrs. Holtzman, the 
President's statements I think clearly indicate false 
statements. Unless some evidence is brought forward by the 
President to rebut them, they clearly were not for the purposes 
of covering up an embarrassment, because minutes after the 
President made those statements under oath before the grand 
jury, he went before the American people and acknowledged doing 
some embarrassing personally indiscreet things.
    Before the depositions in the civil lawsuit seven months 
earlier, the President clearly was not making those allegedly 
false statements for the purpose of covering up personal 
indiscretions, because in the same depositions the President 
acknowledged other personal indiscretions with Gennifer Flowers 
and so on.
    So I think the purpose of the President in both instances 
was something other than to cover up personal indiscretion. I 
think the purpose of the President was to defeat the lawsuit, 
the sexual harassment lawsuit; to obstruct justice in that 
case; to coach witnesses, and to bring forth a false affidavit 
from another individual.
    And those, I think, are very serious charges, very similar 
to the charges that the Watergate committee considered 
regarding President Nixon and his tax return. And I think 
upholding the rule of law and standing up for honesty and truth 
in our judicial system is a very, very serious matter that the 
American people are very concerned about.
    I would finally point out that you can't look at polls to 
determine the final outcome.
    The Chairman. The gentleman's time has expired.
    The gentlewoman from California.
    Ms. Waters. Thank you very much, Mr. Chairman and members 
of the committee. I thank our witnesses for being here today, 
our former Members. I am trying to hold onto the belief that 
most members of this Committee on the Judiciary are wrestling 
with their conscience on questions of perjury and obstruction 
of justice.
    I have long since decided that I cannot, in good conscience 
and with a sense of integrity and fairness, support the 
impeachment of President Clinton based on the allegations in 
this inquiry.
    We have had some discussion on the question of perjury. 
Some on this committee have held onto an argument that perjury 
for the purpose of prosecution is and should be considered as a 
simple statement of less than pure fact or detail. This is a 
holier-than-thou attitude that allows no room for misstatement; 
no room for inability to clearly and concisely recollect; no 
room for taking advantage of legal definitions crafted by legal 
minds that may not comport with lay definitions; no room for 
nuances or gradations.
    Mr. Chairman, I am going to say this. I hate to. But your 
statements and your actions during these hearings place you at 
the head of the class in the category of strictest and purest 
interpretation of perjury. You have waxed eloquent about the 
rule of law, a zero tolerance of lying. You have said no 
exception can be made for lying to cover up an embarrassing 
sexual affair.
    You said, ``For my friends who think perjury, lying, and 
deceit, are in some circumstances acceptable and undeserving of 
punishment, I respectfully disagree''. You further said, ``The 
truth is not trivial, playing by the rules. We are fighting for 
the rule of law. I think it is our constitutional duty under 
the law to pursue impeachment.''
    You said, ``I am frightened for the rule of law, and I 
don't want that torn down or diminished.''
    Mr. Chairman, you are our leader and the chairman of this 
powerful committee. Many members of your party are following 
your lead, taking your advice, and looking to your experience 
and integrity to guide their decision.
    Mr. Chairman, a few days ago I read a column written by Mr. 
David G. Savage in my hometown paper, the Los Angeles Times, 
and I was simply taken back by what I read. Mr. Savage did a 
little research on you, your statements and your actions.
    Mr. Savage opened his article with the following line, 
quoting you, and I quote: ``He mocked the sanctity of all who 
sermonized about how terrible lying is. `Granted, lies were 
told,' he said, `but it hardly makes sense to label every 
untruth and every deception an outrage.' He also condemned the 
disconcerting and distasteful whiff of moralism and 
institutional self-righteousness that led Congress to conduct 
hearings on the deceptions coming from the White House, and he 
denounced the result as a witch hunt.''
    Mr. Chairman, this columnist was talking about you, you who 
led the defense of the Reagan administration during the Iran-
Contra hearings. This columnist's research also shows you in 
direct and absolute contrast to your belief about what was not 
a lie in 1987 as opposed to what is a lie in 1998.
    Mr. Chairman, what are we to think about these contrasts, 
as we review what you said then, and about understanding the 
nuances of lies and your zero tolerance stage today? What must 
your colleagues in the Republican Conference who are wrestling 
with history, legal definitions and conscience, think about the 
possibility that your statements today are in deep conflict 
with your 1987 statements?
    To tell you the truth, I am a little disappointed. Never in 
my wildest imagination did I think that you would have such 
conflicting views about perjury and lying. You have done a 360-
degree turn on your deep philosophical beliefs about how lying 
should be placed in proper context and nuances.
    Mr. Chairman, I don't want you to default on your good name 
and leadership. History will not be kind to you and the stark 
contradictions of your leadership. It will surely be a sad 
commentary on your long years of service to be recorded as one 
who led the selective impeachment of the President of the 
United States, not based on a consistent philosophical belief, 
but rather on a petty partisan need to satisfy the need to 
retaliate, embarrass, or feed the insatiable appetites of a 
group of hate-mongering----
    The Chairman. I ask unanimous consent that the gentlelady 
be permitted to finish her attack on me.
    Ms. Waters [continuing]. Who will stop at nothing to 
destroy President Clinton. Thank you, I appreciate that, Mr. 
Chairman.
    Mr. Chairman, you sent 81 questions to the President. Based 
on Mr. Savage's article and his accusations about you, I am 
going to send you some questions. You don't have to answer 
them, and if you are going to allow me all of this precious 
time----
    The Chairman. Oh, please don't abuse the privilege, Ms. 
Waters. You have finished your prepared statement, haven't you?
    Ms. Waters. I really haven't, because it includes the 
questions that I am going to send you.
    Mr. Buyer. Regular order, Mr. Chairman.
    The Chairman. I am sorry, I will have to tell you that your 
time has elapsed. But we will continue this in private.
    Ms. Waters. Thank you.
    The Chairman. I now yield myself 5 minutes to respond to 
the gentlelady.
    In a way, I am glad you brought that up, because I read 
that article in the Los Angeles Times, and I went back to my 
library and I dug out the report of the Iran-Contra hearings 
back in '87. I wrote a special dissenting report, and I reread 
it. If I do say so myself, it is real literature. I will get a 
copy and have you read the whole thing, rather than a few 
excerpted sentences.
    Now, it is true, at that time I was on the Intelligence 
Committee, and when I had a more nuanced view about misleading 
people, at no time did I sanction perjury. At no time did I 
sanction Ollie North or Poindexter lying under oath. I objected 
and I made my objections known.
    But what I tried to explain--and I said context is 
everything, and I stand by that--clandestine operations to get 
hostages out of Iran required secrecy and occasionally 
withholding information that others wanted. Trying to save 
Central America from a Castro takeover required some 
clandestine operations, and they required sometimes withholding 
information. That happened, and it takes a little understanding 
that people's lives and resources are at stake.
    And while the Democrats did not agree, they preferred no 
money going to the Contras, whom they portrayed as thugs; the 
Sandanistas, with Mr. Ortega and Mr. Castro, seemed to fit in 
well with them. That was a great controversy back in 1987.
    But you cannot find any place or any time where I condoned 
or justified perjury, or raising your hand and asking God to 
witness to the truth of what you are saying, and then lying.
    Ms. Waters. Will the gentleman yield?
    The Chairman. No, I will not yield.
    Ms. Waters. I want to take you to something that is in 
contradiction to what you have said.
    The Chairman. You have had your turn, Ms. Waters. This 
isn't going to be the Maxine-Henry show.
    Ms. Waters. Too bad about that. I would like that.
    The Chairman. I just wanted the record to show that my 
opposition to perjury and lying under oath has been constant, 
and is as strong today as it was then.
    But as long as I am using my 5 minutes, I want to ask my 
friend, Father Drinan, a question. This may categorize me as a 
member of the religious right, and I will tell you now, I have 
not been to any meetings lately in anybody's basement, so I am 
not a part of the conspiracy.
    But what is the significance of asking God to witness to 
the truth of what you are saying? Does that add a little heft 
to the undertaking of promising to tell the truth, the whole 
truth, and nothing but the truth?
    Father Drinan. No, Mr. Chairman, that was just--everybody 
knows that they have a very solemn duty. If this Saturday the 
vote comes out 21 to 16 to impeach, and if the Republicans put 
intensive pressure upon their own people, and if impeachment is 
passed by seven votes, as is now predicted, I think that we all 
here will say, ``Awesome. What are the motives for that?'' That 
is what I meant.
    The Chairman. Let's get back to my question: What about the 
rule of law? What does the chief law enforcement officer, when 
he raises his hand in a lawsuit, swears to tell the truth and 
then doesn't, then lies--does that erode, diminish, depreciate 
the rule of law which protects you and me?
    Father Drinan. I suppose the answer is yes, but that is not 
the right question. The question is----
    The Chairman. I got the right answer. I will do the 
questions, you do the answers. I yield back my time. Thank you, 
Father.
    Father Drinan. You people have to make the big answer. Is 
that up to the level of impeachability, so that we will 
distract and disturb the country and erode the independence of 
the White House?
    The Chairman. It is inconvenient, I will grant you that. It 
would be inconvenient to have an impeachment, no question. The 
question is, how inconvenient is it to have the rule of law 
eroded, corroded, diminished, lessened, cheapened? That is the 
other side of that coin.
    Father Drinan. That is your assumption, sir, that all of 
that is going to happen. My assumption is that further gray 
things might happen. We have to weigh.
    The Chairman. That's right. And everyone has to in the end 
answer to their conscience. Absolutely right.
    Now, we can get back to normality.
    Mr. Meehan is next. Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman. I am glad all of you 
were here today, because you, among all the witnesses who have 
appeared before us, bring, I think, an important historical 
perspective to the table.
    What I would like to do is read to you some of the portions 
of the Nixon tapes, essentially to take you back to the days 
where you sat in judgment of a prior President, and then ask 
you how the facts before us compare with those that you 
grappled with. Many of us have heard a lot of conversations 
about what happened in the Nixon era and the Watergate era, so 
I think it is important to go back and compare.
    Let me start with a June 17, 1971 conversation between 
President Nixon and H.R. Haldeman, John Ehrlichman, and Henry 
Kissinger. Haldeman tells Nixon that there is a file at the 
Brookings Institute on Lyndon Johnson's implementation of a 
bombing halt in the Vietnam War. Nixon responds, quote, 
``Goddamn it, get it. And get those files. Blow the safe and 
get it.''
    On June 30, 1971, in a conversation with the same 
individuals and Ron Ziegler and Melvin Laird, Nixon elaborates 
on his plans with respect to the Brookings Institute: ``They 
have a lot of material. I want Brookings. I just want to them 
to get it, to break in and take it out. Do you understand?''
    On September 18th, President Nixon and John Ehrlichman had 
a conversation in which they discussed using the IRS toharass 
Senator Edmund Muskie, Senator Edward M. Kennedy, and their supporters. 
Nixon says the following: ``John, but we have the power, but are we 
using it to investigate contributors to Hubert Humphrey, investigate 
contributors to Muskie?'' He goes on, ``Are we going after their tax 
returns? Do you know what I mean?''
    Haldeman, ``No, we haven't.''
    Nixon, ``Hubert, Hubert has been in a lot of funny deals.''
    ``Yes, he has.''
    ``Teddy, who knows about the Kennedys? Shouldn't they be 
investigated?''
    September 10, 1971, President Nixon approves Ehrlichman's 
proposal for a break-in of the National Archives to get secret 
Vietnam papers of former President Johnson's aides.
    Ehrlichman: ``There is a lot of hanky-panky with secret 
documents, and on the eve of the publication of the Pentagon 
papers, those guys made a deposit into the National Archives 
under an agreement of a whole lot of papers. Now I am going to 
steal those documents out of the National Archives.''
    Nixon: ``You can do that, you know.''
    Finally, on June 23rd, 1972, the infamous smoking gun 
conversation occurred. In that conversation, President Nixon 
and Haldeman conspired to call in the CIA director, Richard 
Helms, and direct him to tell the acting FBI director, Patrick 
Gray, that the FBI's investigation of the Watergate break-in 
interfered with CIA operations.
    Here is Haldeman laying out the plan for getting Helms to 
call off the FBI investigation. Haldeman: ``They say the only 
way to do this is from White House instructions, and it's got 
to be Helms and what's his name, Walters.''
    Nixon: ``Walters.''
    Haldeman: ``And the proposal would be that Ehrlichman and I 
call him,'' meaning CIA director Helms.
    Nixon: ``All right. Fine.''
    Ms. Holtzman, Father Drinan, Mr. Owens, we have heard 
attempts to compare President Clinton's conduct in this case 
with that of President Nixon. Indeed, we have seen the 
Independent Counsel strive to mirror the language of the Nixon 
impeachment articles in his referral, throwing out terms like 
``obstruction of justice'', ``abuse of power'', despite the 
lack of evidentiary support for either allegation.
    To set the record straight, isn't it fair to say that 
President Clinton's conduct doesn't even hold a candle to 
President Nixon and what he did?
    Mr. Owens. There is no question that it does not. I 
listened as he instructed John Dean on how to lie to the grand 
jury. I heard the tape. I heard the President's own voice. I 
couldn't believe it.
    ``Just tell them you don't remember, John. They can't 
indict you if you don't remember,'' and told him to ``get 
$120,000, by God, today, and pay it to Mr. Hunt, because he was 
going to blow by nightfall.'' I couldn't believe what I was 
hearing.
    Mr. Meehan. Cash, wasn't it cash?
    Mr. Owens. There is nothing like that in this evidence 
here. There is nothing that touches on the immoral or--the 
illegality of the evidence that we had with Richard Nixon.
    We had no choice but to impeach. This committee has no 
choice but to release the President, to vote down this article.
    Mr. Sensenbrenner [presiding]. The gentleman's time has 
expired. Mr. Buyer.
    Mr. Buyer. I thank all of you for coming today.
    One of the things that is a lot different is we don't have 
John Dean. You had someone on the inside that came forward. We 
don't have someone, a Sidney Blumenthal or someone else who 
comes forward and says, you know, enough is enough. I can't 
take it anymore down at the White House. I want to tell you all 
about the conversations.
    We don't have the benefit of the taped conversations, as 
they put together their defenses and their schemes and their 
plans. We don't have all of that. We have the transcripts from 
the grand jury testimony. So there are some differences. And I 
have great respect for what you went through, because we have 
gone through only half of it. Your proceeding was nine months, 
and this has been four.
    I do have a couple of questions. Father Drinan, you piqued 
my interest earlier when you brought up the word ``vengeance.'' 
Why do you think in our society we think it is so important 
that when we give someone an oath, we ask them to either swear 
or affirm to God, and we also, in many courtrooms around 
America, we ask someone to place their left hand on a Bible? 
Father, why do you think we do that in our society?
    Father Drinan. It goes way back. For centuries it was very 
sacred. But I don't think that you can invoke the oath and say 
that, immediately, that someone who may have violated it is 
impeachable when he is the President.
    You are asking the right thing. Sir, we all agree on this. 
Don't make us say that, well, we are going to minimize the 
oath. We are not doing that. We took the oath today. I teach 
legal ethics at Georgetown. We solemnize all of this.
    But that is not the question. The question is if this 
individual--if this were a private matter, not related to 
government process, is he impeachable because of that question?
    Mr. Buyer. Let me ask another question of you, Father 
Drinan. Tell me what the difference is between vengeance and 
accountability under the legal system? What is the difference 
between those two?
    Father Drinan. Vengeance is only--it is a legal term only 
sometimes. We don't make vengeance a crime. I used that term 
because I, like the whole Nation, find it unfathomable that the 
whole Republican establishment says this is an impeachable 
offense, and the rest of the country doesn't get it.
    Mr. Buyer. Father Drinan, I find it almost unfathomable 
that there are some of my own Democrat colleagues, that somehow 
believe or feel that if the President lied before a grand jury, 
that that was wrong but it is not impeachable.
    Then I have to watch, even in these proceedings, how the 
President's own counsel, and as they work with the minority 
counsel--there is coordination here between minority, the 
minority side, and the President's defense.
    I would ask unanimous consent that an article that was in 
the Wall Street Journal on November 30th, 1998--it is a 
declaration concerning religion, ethics, and crisis in the 
Clinton presidency, signed by 132 religious scholars--be placed 
in the record.
    Mr. Sensenbrenner. Without objection.

              [From the Wall Street Journal Nov. 30, 1998]

                    Bill Clinton's Ethics--and Ours

    The following statement--``Declaration Concerning Religion, Ethics, 
and the Crisis in the Clinton Presidency''--was signed by 95 religion 
scholars including Paul J. Achtemeier (Union Theological Seminary), 
Karl Paul Donfried (Smith College), Jean Bethke Elshtain (University of 
Chicago), Stanley M. Hauerwas (Duck University), Robert Peter Imbelli 
(Boston College), Max L. Stackhouse (Princeton Theological Seminary), 
and Harry Yeide (George Washington University):
    As scholars interested in religion and public life, we protest the 
manipulation of religion and the debasing of moral language in the 
discussion about presidential responsibility. We believe that serious 
misunderstandings of repentance and forgiveness are being exploited for 
political advantage. The resulting moral confusion is a threat to the 
integrity of American religion and to the foundations of a civil 
society. In the conviction that politics and morality cannot be 
separated, we consider the current crisis to be a critical moment in 
the life of our country and, therefore, offer the following points for 
consideration:
    1. Many of us worry about the political misuse of religion and 
religious symbols even as we endorse the public mission of our 
churches, synagogues, and mosques. In particular we are concerned about 
the distortion that can come by association with presidential power in 
events like the Presidential Prayer Breakfast on September 11. We fear 
the religious community is in danger of being called upon to provide 
authentication for a politically motivated and incomplete repentance 
that seeks to avert serious consequences for wrongful acts. While we 
affirm that pastoral counseling sessions are an appropriate, 
confidential arena to address these issues, we fear that announcing 
such meetings to convince the public of the President's sincerity 
compromises the integrity of religion.
    2. We challenge the widespread assumption that forgiveness relieves 
a person of further responsibility and serious consequences. We are 
convinced that forgiveness is a relational term that does not function 
easily within the sphere of constitutional accountability. A wronged 
party chooses forgiveness instead of revenge and antagonism, but this 
does not relieve the wrong-doer of consequences. When the President 
continues to deny any liability for the sins he has confessed, this 
suggests that the public display of repentance was intended to avoid 
political disfavor.
    3. We are aware that certain moral qualities are central to the 
survival of our political system, among which are truthfulness, 
integrity, respect for the law, respect for the dignity of others, 
adherence to the constitutional process, and a willingness to avoid the 
abuse of power. We reject the premise that violations of these ethical 
standards should be excused so long as a leader remains loyal to a 
particular political agenda and the nation is blessed by a strong 
economy. Elected leaders are accountable to the Constitution and to the 
people who elected them. By his own admission the President has 
departed from ethical standards by abusing his presidential office, by 
his ill use of women, and by his knowing manipulation of truth for 
indefensible ends. We are particularly troubled about the debasing of 
the language of public discourse with the aim of avoiding 
responsibility for one's actions.
    4. We are concerned about the impact of this crisis on our children 
and on our students. Some of them feel betrayed by a President in whom 
they set their hopes while others are troubled by his misuse of others, 
by which many in the administration, the political system, and the 
media were implicated in patterns of deceit and abuse. Neither our 
students nor we demand perfection. Many of us believe that extreme 
dangers sometimes require a political leader to engage in morally 
problematic actions. But we maintain that in general there is a 
reasonable threshold of behavior beneath which our public leaders 
should not fall, because the moral character of a people is more 
important than the tenure of a particular politician or the protection 
of a particular political agenda. Political and religious history 
indicate that violations and misunderstandings of such moral issues may 
have grave consequences. The widespread desire to ``get this behind 
us'' does not take seriously enough the nature of transgressions and 
their social effects.
    5. We urge society as a whole to take account of the ethical 
commitments necessary for a civil society and to seek the integrity of 
both public and private morality. While partisan conflicts have usually 
dominated past debates over public morality, we now confront a much 
deeper crisis, whether the moral basis of the constitutional system 
itself will be lost. In the present impeachment discussions, we call 
for national courage in deliberation that avoids ideological division 
and engages the process as a constitutional and ethical imperative. We 
ask Congress to discharge its current duty in a manner mindful of its 
solemn constitutional and political responsibilities. Only in this way 
can the process serve the good of the nation as a whole and avoid 
further sensationalism.
    6. While some of us think that a presidential resignation or 
impeachment would be appropriate and others envision less drastic 
consequences, we are all convinced that extended discussion about 
constitutional, ethical, and religious issues will be required to 
clarify the situation and to enable a wise decision to be made. We hope 
to provide an arena in which such discussion can occur in an atmosphere 
of scholarly integrity and civility without partisan bias.

    Mr. Buyer. It starts by saying, ``As scholars interested in 
religion and public life, we protest the manipulation of 
religion and the debasing of the moral language in the 
discussion about presidential responsibility. We believe that 
serious misunderstandings of repentance and forgiveness are 
being exploited for political advantage.''
    Then they lay out six points. I think it is very good. I 
invite my colleagues to read that.
    I was very concerned, Father Drinan, for you to come in 
here and to challenge the motives of this committee. I suppose 
that as you sat on the impeachment, the three of you, there 
were people that would challenge your motives and did at the 
time.
    Father Drinan. If I may say, I don't recall anything like 
that in the House Committee on the Judiciary in 1974. We had 
the highest esteem for each other, and I had high esteem for 
Caldwell Butler, who agonized over this and eventually voted 
for it.
    Mr. Buyer. Father Drinan, you are the first individual that 
I know that has ever challenged, and I will take it personally 
here because you said it to all of us, that we are driven by 
vengeance. That is why I asked you the specific question about 
the difference between accountability in our legal system and 
vengeance. That is very important. So I am very disappointed 
that the President's defense would send witnesses to this 
committee that would say we are driven by vengeance, that we 
are zealots and fanatics and cowards.
    Father Drinan. I didn't say fanatics or cowards.
    Mr. Buyer. You did not, but a witness from the previous 
panel.
    Mr. Drinan. Don't make me accountable for what other people 
said.
    Mr. Buyer. I am not making you accountable. I will make you 
accountable for the vengeance statement.
    Mr. Sensenbrenner. The gentleman from Massachusetts, Mr. 
Delahunt.
    Mr. Delahunt. Thank you. Father Drinan, welcome, my former 
teacher at Boston College Law School.
    You are all Democrats. I think it is important to point out 
to you and to the American people that a former colleague of 
yours, Charles Wiggins, who is presently serving on the Court 
of Appeals in the Ninth Circuit, agrees with you, and he is a 
Republican.
    I am going to quote from testimony that Charles Wiggins 
gave to this committee a short time ago, back on December 1st. 
I am quoting: ``I am presently of the opinion that the 
misconduct immediately occurring by the President is not of the 
gravity to remove him from office.'' I think that goes to much 
of what you have all said today in terms of the gravity of the 
conduct, even if it is presumed to be accurate.
    He goes on to state, on page 141, ``I find it very 
troubling that the Committee on the Judiciary seems to be 
willing to impeach the President. I find that there is not any 
necessity that the President knew his acts were impeachable, 
that he was obstructing justice or abusing power at the time he 
did them.''
    So I think it is very important that you understand you are 
here in a bipartisan sense with Judge Wiggins. He also stated, 
and you just stated rather elegantly, Mr. Owens, that--and 
again, I am quoting him--``We heard testimony from Haldeman, we 
heard testimony from Ehrlichman, and we heard testimony from 
John Dean.'' You just referred to that, listening to that 
particular tape. It was the smoking gun.
    It is my position that we have a process here, and I think 
process is important, because it is the process, not the names 
of the principle players, whether they be William Clinton, Ken 
Starr, Monica Lewinsky, or Linda Tripp, that will serve as a 
precedent for the rest of our history.
    I am really concerned that we have not heard direct 
evidence, and I am particularly disturbed when I hear from 
others that suggest that somehow the burden of proof to rebut 
what is--can only be described as triple and quadruple hearsay 
is on the President of the United States.
    We heard earlier from Mr. Craig when he said, ``Much of 
what Monica Lewinsky said was erroneous.'' He did not accuse 
her of lying or testifying falsely, he said ``erroneous.''
    I dare say it is the responsibility of this committee, of 
this committee, to hear from the principal witnesses, to make 
those critical determinations in terms of memory, in terms of 
credibility, and in terms of evidence. I would welcome your 
comments. Ms. Holtzman.
    Ms. Holtzman. I think you are absolutely correct. You know, 
the question was what standard of evidence should be applied. 
We actually had evidence beyond a reasonable doubt. We had the 
tapes of the President of the United States himself. There was 
no question of the level of evidence. We heard witnesses, 
direct witnesses. We heard tapes. I don't think it is----
    Mr. Delahunt. Reclaiming my time, I think it is very 
important that you know and the American people know that we 
have heard direct testimony in deposition from only two 
witnesses. I think it is absolutely wrong for this body and for 
this institution to abdicate its responsibility under the 
Constitution to an independent prosecutor that merely served as 
a conduit for so-called evidence, while it goes to the United 
States Senate for a trial which I think we can all agree will 
be traumatizing this Nation and creating great instability 
within the body politic.
    I yield back.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Bryant.
    Mr. Bryant. Thank you, Mr. Chairman. I would like to thank 
the panel, a couple of you, for your second--I guess for the 
rerun here.
    I am reminded by my colleagues' from Massachusetts 
statement of my years in trial, when the other side often 
argued that there is no proof here today on this point, when 
they too had the subpoena power and the ability as such to call 
in that proof if they really, really wanted that proof there.
    One would have to assume that by providing some 30 hours, 
if you look at eight-hour work days, almost four complete days 
of work hours before this panel, that if one really wanted that 
type of proof, if they wanted confrontation with these 
witnesses and if they wanted to cross-examine these witnesses, 
and they were so, so dissatisfied with the process, that one 
would think they might issue a subpoena and call some of these 
witnesses in.
    On another subject, there are many issues here and I want 
to touch on just a couple of them. I have heard today argued 
that private conduct is not grounds for impeachment. I see the 
hypocrisy in the White House of spending so much moneyand time 
and legal effort in asserting the White House presidential privilege, 
which we all know covers official conduct. So if we are talking private 
conduct only, why aren't we litigating in court the official conduct 
and the executive privilege issue?
    This panel seems to be arguing that, unless you have the 
Richard Nixon case, you can't impeach anybody. We have 32 
counts and one article of impeachment in that case. That sounds 
to me like if you have got a bank robber out there that robbed 
32 banks, and then you have got a second bank robber who only 
robbed four, that you can't charge that person with bank 
robbery; that everybody from here on has to rob 32 banks before 
they can be charged.
    I suspect when it all settles in, this case will fall in 
between the Andrew Johnson impeachment and the President Nixon 
impeachment. It is for this panel to vote their conscience and 
decide whether, within that spectrum, if indeed there are 
sufficient articles of impeachment.
    One final argument I might say, woe be it to this country 
if we go through this process, another government shutdown. I 
have heard that term used today. But let me tell you, this is 
important work that we are doing today. We are doing it not 
because we started it, but because it is the President's own 
conduct that began this.
    Back in 1974 when you folks were sitting in these seats, 
your Democrat chairman of this committee faced similar 
circumstances in terms of the troubles that this country had 
been through at that point, and probably a sentiment in America 
that just didn't want to do this.
    In his opening statement in the Congressional Record, Mr. 
Rodino eloquently states that, ``We know that the real security 
of this Nation lies in the integrity of its institutions and 
the informed confidence of its people. We will conduct our 
deliberations in that spirit. It has been stated 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.' 
For almost 200 years Americans have undergone the stress of 
preserving their freedom, and the Constitution that protects 
it. It is now our turn.''
    With that, I yield back the balance of my time.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Thank you, Mr. Chairman.
    Father Drinan, I think, as you described earlier, you were 
asked to come today to tell us what happened during Watergate. 
For those of us that don't really remember Watergate, it was 
chilling for me to hear Congressman Meehan repeat verbatim 
President Nixon's language, and I think at least for some of us 
that don't recall the actual testimony, because we were too 
young or otherwise, and then have it compared to the 
President's alleged behavior is very dramatic.
    Mr. Owens had an opportunity, I think, to answer a question 
earlier. I would like to give you an opportunity. Describe in 
your words what was the abuse of power, the abuse of office by 
President Nixon, and compare that, if you would, in an 
objective fashion, which I know you can, to the alleged abuse 
of power or abuse of office by President Clinton.
    Father Drinan. Thank you for the question. I think the 
documentation exists here. This, along with other books, 
indicates the extent of the upgrading or downgrading of 
government. It is just unbelievable. That is the whole point, 
that we sat here and listened to it. It was almost 
unbelievable.
    I remember sitting right over there with the microphones, 
listening to President Nixon telling his Attorney General, 
``You are not going to appeal that ITT case. Understand that? 
You are not going to appeal that.'' And then they lied about 
that afterwards: ``Well, we never got any instruction.'' And 
there is nothing, compared to--now, I mean all these things, 
whatever you call them. This was an eruption of corruption in 
the White House for which the Framers intended impeachment. The 
Nation recognized that.
    Mr. Rodino presided majestically, and the whole Nation was 
impressed. The other day Mr. Rodino said there are no 
impeachable offenses in anything that he has seen about these 
events.
    So we are glad to be here to have an opportunity. But it 
becomes more unbelievable every day, the possibility that the 
Congress, the House, could go forward and impeach this person. 
What are they looking at? Where are the documents? It is just 
unbelievable.
    I want Ms. Holtzman to respond.
    Ms. Holtzman. Mr. Wexler, I mentioned in my testimony, but 
it bears repeating, one claim of abuse of power was that the 
President had to be subpoenaed, did not voluntarily appear 
before a grand jury despite being invited several times. He 
ultimately appeared. What is the abuse of power?
    Secondly, the other claim was that he invoked executive 
privilege so that the special prosecutor would have to be put 
to his proof in court. Once the court ruled, the President 
turned over the information. Where is the abuse of power here?
    When we talk about the Nixon impeachment here and the abuse 
of power, when the President uses his office to get the FBI 
to--the CIA to stop an FBI investigation, or gets the IRS to 
audit his political enemies, that is an abuse of power that 
threatens the people of the country and the operation of 
government. We don't see that here.
    I think that the members of this committee have to--
obviously have to search their conscience, but this process 
will be judged by how bipartisan it is and how much the public 
is willing to put up with a huge disruption because of the 
level of presidential misconduct. I don't think we see that. 
The public is not prepared to see that, that level of 
disruption take place.
    Mr. Wexler. Thank you, Mr. Chairman.
    Mr. Owens.
    Mr. Owens. If you will permit, I am about to say something 
that is about to put me on a hotter seat than Father Drinan 
had. But when you talk about abuse of powers, I wonder about 
the powers of this committee and the leadership of the House 
which will not permit Members of the House, as I understand, to 
vote on censure, which insists on impeachment or nothing.
    This President should be condemned for his actions. He did 
lie to a grand jury, in my view, and to say to the Members of 
the House, you cannot censure him, you either have to impeach 
him up-or-down or let him go. Many Members on the hot place do 
not believe he should be impeached, apparently--at least two 
Republicans have expressed it to me--and yet they have no 
choice, either they impeach or they turn him free, I thinkthat 
is bordering on an abuse of power.
    Mr. Wexler. Thank you.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you. Ms. Holtzman, let me go back to your 
testimony here this morning. You stated, ``Nearly a quarter of 
a century ago I never imagined in my lifetime we would see 
another impeachment. I am saddened to be here today.''
    And I can assure you that we are all very saddened to be 
here today, but we are here because of the conduct and the 
seeming inability to tell the truth of only one person, and 
that is William Jefferson Clinton.
    Let me go back to a statement that you made in the Nixon 
impeachment era, back in 1974. You stated at that time that 
``The President of this country ought to set a standard of 
strict, scrupulous obedience to the law.'' Do you still feel 
that way? Do you still feel that the President of the United 
States should set a standard of strict obedience to the law, 
that the President should be honest?
    Ms. Holtzman. Of course I believe the same thing. The 
question is, what happens when the President is not? What is 
the punishment? That is really the question you have to grapple 
with. Even if in your conscience you feel impeachment is 
warranted, if you don't have bipartisan support and if the 
public won't accept it, are you going to put this country 
through a terrible disruption? For what? Try to find the common 
ground.
    That was what distinguished us in Watergate. We drew up the 
articles of impeachment with the Republicans. It wasn't an 
effort of a single party.
    Mr. Chabot. Let me move to Father Drinan now, because our 
time is relatively brief, as you know.
    Censure, Father, has come up several times here in this 
committee today. Let me address censure for just a moment here. 
You had testified previously in this committee, and you stated 
back on November 9th when you appeared before us at that time, 
and I will quote, ``A vote to censure a President by one or 
both bodies of Congress would establish a dangerous 
precedent.''
    I agree with you. I am concerned that censure could lead to 
using a censure against a President for political purposes. For 
example, I strongly disagree with President Clinton's veto of 
the partial birth abortion ban. Despite my strong opposition to 
that, however, I don't think we should punish him for what was 
essentially a political act on his part.
    Do you continue to believe that censure by either this 
committee or the House is not the appropriate course for us to 
take?
    Father Drinan. That is up to the Congress itself. But I 
think many people would say ``I am not certain about 
impeachment, and I will vote for a censure.'' People do feel 
strongly about presidential misconduct, and the President 
realizes that.
    The consequences, however, still worry me, that this will 
intimidate future Presidents; that they will censure him, 
shortly before election, for political reasons and not for 
reasons that might be impeachable.
    Mr. Chabot. So your feeling is that censure is probably not 
the course that we ought to take?
    Father Drinan. Well, it is up to people who are wiser than 
I to say what is the appropriate.
    Mr. Chabot. Thank you, Father.
    Congressman Owens, let me go to you at this point. I am 
going to quote from a statement attributed to you back in 1974, 
again, in the Nixon impeachment proceedings.
    You stated at that time that ``Impeachable conduct need not 
be conduct prohibited by criminal statute, although it must be 
clearly offensive; that is, known to be wrong by the person who 
commits it at the time it was committed. It could be a 
substantial abuse of power, blatantly unethical conduct, or a 
flagrant violation of constitutional duties.''
    Doesn't the President of the United States have the 
constitutional duty, when he raises his hand and swears to tell 
the truth, the whole truth, and nothing but the truth, so help 
me God, to tell the truth?
    Mr. Owens. Obviously he does, and I regret that he didn't. 
My concern here--I disagree, obviously, with Father Drinan on 
censure. I disagree with Barbara Jordan as she is quoted to us. 
I disagree with Congressman Owens as he is quoted to us. I am 
now 24 years older and at least 10 years more mature.
    But I think it is very important that the punishment fit 
the crime here. I'm just trying to say to the committee, the 
offense does not rise to impeachability. The President was like 
a deer caught in the headlights of a car. His marriage all of a 
sudden was in danger, his presidency was in danger by his own 
sexual infidelity.
    Mr. Chabot. He also, as a private citizen--
    Mr. Owens. I understand.
    Mr. Chabot. Excuse me.
    Mr. Owens. I understand how he got caught in that mess, and 
I think he ought to be censured for having done the wrong 
thing.
    Mr. Chabot. He also had a private citizen, Paula Jones----
    Mr. Owens. It does not rise anywhere to the level of 
impeachability as compared to Richard Nixon's offenses, whom we 
are here to contrast today for you, the actions of that 
President. That is the point I am trying to make.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from New Jersey, Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Chairman. I was just about to 
make the statement, but Congressman Owens made it for me. But I 
will repeat it, because it is the appropriate issue for us: 
What is the appropriate punishment for the President's wrongful 
conduct?
    Now, we all want to uphold the rule of law for ourselves, 
our children, and our judicial system. But we have civil courts 
and criminal courts, and we have President Clinton already 
liable to be sued civilly and criminally for any action that he 
has taken. So the rule of law will apply to this President.
    As my friend from California said, this is about a civil 
procedure. Of course it is. If the President was deemed to have 
done something wrong in a civil deposition, the civil judge, 
upon discovering that, had the right to sanction him, punish 
him, and thus uphold the rule of law. So the rule of law 
already applies to the President.
    We were talking about whether the punishment, the nuclear 
bomb punishment, the death penalty punishment of impeachment is 
necessary or appropriate for the President's wrongful conduct. 
This does not get to the question of whether those seeking the 
President's impeachment have presented a scintilla of factual 
evidence to justify or to meet a burden of clear and convincing 
evidence. They have not presented a single fact witness. But 
that is for another day. Hopefully they will come to their 
senses and meet that clear and convincing standard of proof 
requirement.
    But my friend from Indiana, Mr. Buyer, was saying, that 
when you raise your hand to tell the truth, that is so 
important. Of course it is important. Anyone who violates that 
can be sued civilly and criminally. But is the violation of 
that oath per se treason, bribery, or other high crimes and 
misdemeanors, so we need to add the punishment of impeachment 
and removal to the punishment the President can already 
sustain, civil punishment and criminal punishment; knowing, of 
course, that the punishment of impeachment and removal is not 
just a punishment and will not just have an effect on President 
Clinton, but it will have an effect on the entire country and 
perhaps the world?
    So that is the standard. No one has the right to draw to 
themselves the mantle of the protector of the rule of law, even 
if you believe he lied under oath, know that most scholars say, 
lying under oath is different than perjury, which is lying with 
specific intent, and it has a material effect. But even if you 
believe lying under oath is wrong and rises to the level of 
impeachment, ask yourself if that was what the Founders had in 
mind by treason, bribery, and high crimes and misdemeanors? And 
say, is that an appropriate punishment that fits the offense, 
the wrongful conduct of President Clinton? That is what we have 
to decide. I hope my colleagues will bear that in mind.
    Again, on the issue of whether or not any factual evidence 
has been brought before us by those seeking the President's 
impeachment, I dare say, not yet. That disturbs me greatly, 
because I believe that the American notion of fairness and due 
process puts the burden of proof on the accuser to prove by 
clear and convincing evidence someone's guilt.
    It gives the accused the right to demand the accuser meet 
that burden before the accused says anything, if at all. It is 
not up to the accused to prove his or her innocence. That is 
the American way. That is our rule of law in America. I hope we 
will get to that sometime before this inquiry is completed.
    Thank you. I yield back.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Georgia, Mr. Barr.
    Mr. Barr. I would like to yield 30 seconds to the gentleman 
from Ohio, Mr. Chabot.
    Mr. Chabot. I thank the gentleman for yielding. In the 
previous testimony here, it was assumed that the President lied 
to protect his wife and his daughter, et cetera. But I think it 
is just as likely that he lied in order to defeat a fellow 
citizen's lawsuit against him, a sexual harassment lawsuit 
which was a very significant lawsuit.
    I yield back. I thank the gentleman for yielding.
    Mr. Barr. Thank you. You all are here today in support of 
the President, in defense of the President. I understand that. 
That is certainly very appropriate. You all are not here to 
present new evidence in terms of rebutting evidence, evidence 
that might rebut the specific charges against the President, 
but rather to present your opinions or evidence, as you may 
call them, of your view of impeachment; as Father Drinan said, 
to contrast the procedures in Watergate, your view of the 
standard that was used then, as opposed to the standard that 
either is or should be used here.
    That is fine. That is part of the process here. What I find 
somewhat disturbing, though, is the effort by many of the 
defenders of the President to really mischaracterize, in their 
zeal to defend the President and rewrite history, to 
mischaracterize prior proceedings and put them in a light that 
really, on careful examination of the actual, historical 
record, really is not quite fair.
    For example, we have heard from the President's defenders 
how it is that there is not sufficient time for the President's 
lawyers to engage in whatever it is that they want to engage 
in, a thorough and sifting cross-examination, perhaps, or what 
not.
    We constantly hear, particularly from the oh, so eloquent 
ranking member of this committee, how fair the proceedings were 
in Watergate as contrasted to the all unfair proceedings 
currently.
    Yet, in fact, according to many of those involved in your 
very proceedings back in 1973 and 1974, for example, with Jerry 
Zeifman, a lifelong Democrat, the chief counsel from '73 to '74 
of the committee, there was a tremendous battle in your 
committee, particularly among the staff and among the chairmen.
    In fact, one Hillary Rodham--of whom we have heard mention 
in other proceedings in which we have been engaged as one of 
the authors of the impeachment research document that many of 
us referred to as part of the paper that was put together by 
the Watergate impeachment staff, that stands for the 
proposition that the impeachment is indeed a political process, 
that it is not necessary to show violation of criminal laws, 
and so forth, for impeachment to lie--according to Mr. Zeifman, 
Hillary Rodham wrote a memorandum arguing that President Nixon 
should be denied any representation of counsel. In fact, in 
many of the proceedings Mr. James St. Clair, who basically was 
Mr. Craig's predecessor, Special Counsel of the President, 
wasnot allowed to participate.
    Also we have heard a great deal about the lack of evidence 
as opposed to or in addition to the material that Judge Starr 
sent us, as if this is somehow also at diametric odds with the 
great open, thorough, and sifting search for the truth in the 
Watergate proceedings.
    As a matter of fact, again drawing on not my research but 
the research of those involved, such as Mr. Zeifman, it is very 
clear, as he documents, that in fact on the morning of May 9, 
1974, the beginning of the so-called Watergate hearings by the 
committee on which you all served, they consisted of nothing 
more in open session than the chairman gavelling them to order 
and then going into executive session for many days, at which 
time new evidence was not received. There was none received. It 
was simply a rehashing and a reading of the evidence that had 
been developed by other sources, such as the Irving committee. 
That really formed the basis for your all's deliberations.
    I am not arguing with that. But what I am arguing against 
and want to set the record straight is that all these 
sanctimonious references to how open the proceedings were back 
in 1973 and 1974, as contrasted with the proceedings that we 
are moving through nowadays, based in large part on the very 
voluminous work of Judge Starr, and on which case we have given 
certainly a great deal of time to the President's lawyers, not 
what they would like but a great deal of time, is somehow much 
less worthy of the work of this committee and the Congress. In 
reality, the procedures were very, very much the same.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Owens. I just wondered if an old has-been can rise to a 
point of personal privilege. Mr. Canady quoted me out of 
context, and I have now got the correction, and I think it 
would be a one-minute reading if I might be permitted to 
correct the testimony he gave.
    Mr. Sensenbrenner. I will be happy to indulge the witness.
    Mr. Owens. I am now in agreement with myself.
    Mr. Sensenbrenner. Well, then you ought to set the record 
straight.
    Mr. Owens. Does the gentleman permit it, the Chair?
    Mr. Sensenbrenner. Yes.
    Mr. Owens. Thank you very much. Page 549 of the hearings, I 
don't know the date, the gentleman's former boss, my good 
friend Caldwell Butler yielded me 2 minutes.
    ``I believe Mr. Nixon did knowingly underpay his taxes,'' I 
said, in the four years in question, ``by taking unauthorized 
deductions, and he knowingly ordered or caused to be ordered 
improvements on his properties in Florida and California at 
government expense. These are offenses against the people, and 
I think the government should pursue its remedies. But you 
don't impeach for every offense, nor, on the other hand, do you 
excuse any offense by saying others did it. But whether to 
impeach or not is a question of judgment, permitted to each of 
the members; is it sufficient, is it that serious, and, on the 
evidence available, these offenses do not rise in my opinion to 
the level of impeachability. It is not sufficient to the 
standards. I promised the people of Utah when I sat down to 
impeachment that I would impeach only if there were hard 
evidence and which was sufficient to support conviction in the 
Senate, and I found it in four instances, and I do not find it 
this 6th, to which I feel I must apply the same remedy.''
    I thank the Chair.
    Mr. Sensenbrenner. Thank you.
    Mr. Canady. Mr. Chairman, I ask unanimous consent to 
respond to the gentleman.
    Mr. Sensenbrenner. The Chair will state that you can ask 
somebody else who is recognized for time, but if we start this 
kind of a debate, we are going to be here until 4 in the 
morning rather than midnight.
    My colleague from Wisconsin, Mr. Barrett, is recognized.
    Mr. Barrett. Mr. Owens, I was the person who handed that to 
you.
    Mr. Owens. Thank you very much.
    Mr. Barrett. The reason I did was earlier today I joined in 
with Mr. Pease because I felt it was wrong for committee 
members to castigate members and to question their motives. I 
think that the standard applies to us as well, and I think it 
is wrong for us to take words out of context and apply them to 
the witnesses, and that is exactly what was done to you. And I 
felt that once you did read your entire statement from 24 years 
ago, that you would agree with yourself, and I am glad that 
you----
    Mr. Owens. I thank the gentleman. That is a very nice 
courtesy to an old has-been. Thank you very much.
    Mr. Barrett. When this proceeding started three months ago 
or four months ago, the Chairman indicated that he felt by the 
end that it would be bipartisan. I think he couldn't conceive 
that we would vote out articles of impeachment, I don't know if 
he was referring to the House or to the committee, on a 
strictly partisan basis. All indications, of course, are that 
five days from now, or two days from now, we will do exactly 
that, and I have had many constituents who have come to me and 
said there is something wrong here. Aren't there any 
Republicans that agree with the Democrats, aren't there any 
Democrats that agree with the Republicans? And they are right, 
there is something wrong here, because we have been hearing 
that this would be a vote of conscience, and it defies logic, 
even for the most partisans, to think that there is not one 
person on either side of the aisle that is buying the 
arguments.
    I think that part of the problem is that we haven't triedin 
any way to work on a bipartisan basis in open committee. Some of us 
have tried behind the scenes to see if we could move this along. I am 
of the firm belief, as I have said many, many times, that the President 
was wrong in his actions, that he should be held accountable. But I 
also think it has to be done in a bipartisan way, and we are not 
anywhere close to doing that.
    So I am looking to you three for guidance. Since the 
committee did work in a bipartisan way, give us some tips as to 
how we can bring this to closure, because, again, as I have 
stated, for the sake of the American people, we have to get 
this resolved and we have to get it resolved in a manner that 
at least a majority of the American people feel is fair. I will 
ask you, Ms. Holtzman, if there is any advice you have. I 
realize you are all Democrats and I should be asking the same 
of some Republicans, but I think this committee needs some 
counseling and I am asking you to provide that.
    Ms. Holtzman. I don't have a therapist's hat to put on, and 
I don't want to presume to give you that counsel, but I must 
say I am troubled by what I hear, for example, with regard to 
the issue of evidence. On this side I have heard some 
Republican members say, well, if they want to hear it, let them 
call the witnesses. It didn't work that way during Watergate. 
We had a Republican--we had two Republican counsels, actually, 
and they worked together, the committee worked together in 
calling the witnesses, in trying to reach that common ground. 
And if people don't search for the common ground, they are not 
going to find it. But the American people will never accept the 
verdict of impeachment unless it reflects the common ground.
    I think you just have to keep trying, and I would hope the 
Chair would lead that effort. Mr. Rodino was the one who made 
sure that the articles were not drafted before we had 
bipartisan input. Not what happened here, where you had the 
Republican counsel listing 15 charges, which reflected perhaps 
the view of the majority, but not the views of the minority, 
maybe there is some way that people can say, let's stop and see 
where there is a common ground for the good of the country and 
the reputation of this committee and the Congress.
    Mr. Barrett. Father Drinan?
    Father Drinan. I agree with you something is wrong. What is 
the wrong? We were called here today to say that this group has 
not followed what we did in 1974, and I don't know whether we 
are going to change any minds. A friend asked me this morning 
do you think that anybody will change their mind? And I said I 
always think that people can be rational and reasonable, and we 
can hope for that. But something is wrong in your terms, when 
and if this vote comes out 21 to 16.
    Mr. Owens. Mr. Barrett, it seems to me that bipartisanship 
would return if the House leadership and committee leadership 
would permit members an alternative vote on censure. I say to 
the committee, why can't you have a range of punishments here? 
I think bipartisanship would return if the House leaders would 
allow, if this committee would allow, a vote on censure as well 
as a vote on impeachment. Members deserve a full range of 
bipartisan responses to deal with the President's 
transgressions.
    Mr. Barrett. I would agree with you, and I know on this 
committee it is not going to happen. But I think on the full 
floor it would be a great injustice to this Nation if we don't 
have a vote on censure, because we have been told time and time 
again this is a vote of conscience. To deny that vote on the 
full House floor would be denying members the opportunity to 
vote their conscience.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Thank you, Mr. Chairman. Let me say thank you 
to those of you on this panel. It may become difficult to 
recruit members for this committee in the future when they find 
that you may have to come back and testify on such matters at 
some distant time down the road.
    Let me say thanks to all of you, and especially, Mr. Owens, 
to you. You have demonstrated a great deal of understanding for 
this committee. I think you understand, and I am sure the 
others do, too, but you have expressed it more clearly, that 
none of us relish this responsibility that we have had thrust 
upon us. It is a little bit like when I was in the Army, I went 
and reported to basic training through the ROTC program. I had 
dreams of becoming an officer and a gentleman, and I remember 
one morning at 4 o'clock, we were still pulling KP in the Army 
then, and they got me up and the first job they assigned to me 
was cleaning out the grease trap. And it left an indelible 
impression on my mind as it was not the most pleasant task that 
I had ever been assigned to.
    But I wanted to ask you, and I think you covered part of 
this in your statement, but would you agree that giving false 
testimony under oath to a material matter in either a civil 
lawsuit or a criminal matter or before a grand jury constitutes 
perjury? Would you agree that constitutes perjury?
    Mr. Owens. As I understand the definition, it seems to fit 
the classic mode.
    Mr. Jenkins. All right. And I believe you agreed that 
perjury at least can be an impeachable offense.
    Mr. Owens. That is correct, but could I ask you a question 
in return? Why the House leadership won't let a full range of 
punishments come before the House? Because if there is perjury, 
it ought to be punished.
    Mr. Jenkins. You are talking about punishments. All right, 
let's talk about punishments a minute. The Constitution says, 
as I read it, that in the event that anybody is accused and in 
the event they are convicted, then the remedy is removal from 
office plus one additional remedy, perhaps being foreclosed 
from holding public office in the future.
    Is that not in your mind an impediment to a remedy of 
censure either in the House of Representatives or even in the 
Senate?
    Mr. Owens. Not in the least, Mr. Congressman. There is 
precedent. Andrew Jackson was censured. You can introduce any 
resolution you want. You can do anything that you can get by 
the Parliamentarian here. There is no question in my mind that 
it is totally constitutional, and here it is very practical. It 
would solve a very real problem.
    Mr. Jenkins. So that doesn't give you any problem that that 
remedy is not provided for in the Constitution?
    Mr. Owens. None whatsoever, sir.
    Mr. Jenkins. All right. Well, let me ask Father Drinan a 
question. Father Drinan, it appears to bother you, and I don't 
know how this vote is going to turn out. You may be absolutely 
right, it may be strictly along party lines. But you seem to be 
disturbed that the prospect exists that therecould be 21 
Republicans who would ultimately vote for an article of impeachment.
    Are you not just as concerned that there might be 16 
members of the other political party who would vote no on an 
article of impeachment? Does that not concern you too? Does it 
not work both ways?
    Father Drinan. Sir, I inherit the great tradition of 1974 
when first this thing was in the country. We wouldn't do that. 
There was something wrong with our judgment if some Republicans 
can't agree with us. That was the beginning, from day one, that 
we can't trust our own judgment unless we have some Republican 
support. And we got seven people in the end.
    Mr. Jenkins. Are you working on getting anybody on the 
other side of the aisle to change their mind, Father Drinan?
    Father Drinan. I think it would bother me all the time if 
there it is strictly partisan. There is something wrong with 
the logic if it doesn't appear to the other side.
    Ms. Holtzman. May I respond just briefly? We wrote the 
articles of impeachment with Republicans. They weren't crafted 
by one side that said here, take it or leave it. It was a joint 
effort, a joint writing.
    Mr. Jenkins. I am about to run out of time, but if I have 
time, Ms. Holtzman, you said that a trial would disrupt the 
workings of the Supreme Court, is that correct?
    Ms. Holtzman. I believe so.
    Mr. Jenkins. Was that true in 1974?
    Ms. Holtzman. We didn't get to that point.
    Mr. Jenkins. Would it have been true if you had gotten to 
that point?
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Arkansas, Mr. Hutchinson.
    Mr. Hutchinson. Thank you, Mr. Chairman. As I listened to 
the testimony today, it is like we yearn for the days of 
Camelot. I know those were tough times, but it sounds like we 
describe them in terms of great bipartisanship and everything 
was just smooth in the committee. Last night I had an 
opportunity to read back through many of the statements that 
were made during the Watergate proceedings, and I enjoyed the 
statement of James R. Mann, a representative at the time, who 
said something like you know some of the things that cause me 
to wonder are the phrases that keep coming back to me, oh, it 
is just politics, or, let him who is without sin cast the first 
stone.
    So, I look back and I think you all heard some of the same 
things that we hear today, and I am impressed, no question 
about it, with your ability to achieve in the end not total 
bipartisanship, but some consensus where some Republicans, the 
minority, looked at the facts and concluded that there were 
impeachable offenses committed.
    Now, I don't know who is right or wrong, but I do respect 
the other side that they are looking at this as a matter of 
conscience. I think we are all looking at this as a matter of 
conscience. It happens to divide us though. And I look at this 
panel right here, you know, there is disagreement right here, 
and you three reflect it. Father Drinan has tried to soften his 
comments based upon Mr. Owens' comments, but Mr. Drinan, you 
were very clear the last time you testified that censure was 
totally unacceptable, and I think you have tried to soften that 
today out of respect for your colleague. In fact you said at 
that time, there is no procedure for congressional censure and 
that the introduction of such a procedure could weaken the 
independence of the presidency and be a danger to the integrity 
of the separation of powers.
    Is that an accurate quote, Father Drinan?
    Father Drinan. And I say it again.
    Mr. Hutchinson. So the point is, there is disagreement even 
on this panel. I look at the testimony of Mr. Owens, and I 
wrote this down when you said it, but you said the President 
did lie to the grand jury, and then you conclude there should 
be a different outcome. And you said that his presidency was in 
danger, and that is one of the reasons that motivated him to 
lie, as well as protecting his family.
    If you conclude that the President did lie to the grand 
jury, and that his motivation, whatever his motivation, was to 
protect his presidency, well, that rings like 1974. President 
Nixon was concerned about his presidency.
    Mr. Owens. Now, wait, Mr. Congressman, that is not what I 
said, with all respect.
    Mr. Hutchinson. Tell me where I am wrong.
    Mr. Owens. I said that I think he did lie, and I think his 
response----
    Mr. Hutchinson. You said lied to the grand jury, is that 
correct?
    Mr. Owens. Pardon me?
    Mr. Hutchinson. I wrote it down that you said the President 
lied to the grand jury.
    Mr. Owens. Initially he lied, I think, in his testimony in 
the civil deposition, and then reiterated by implication that 
testimony in that grand jury. I think I meant to say the civil 
testimony, but I think by implication that it is also true with 
regard to his grand jury testimony.
    But the point here is that the President was not 
defending--was not covering up a gross abuse of the 
presidential office, he was covering up a stupid infidelity, a 
sexual transgression. And I think very clearly he was 
concerned, I think, mostly about his wife and about his family, 
and then also by the great embarrassment, ultimately the 
presidency.
    Mr. Hutchinson. I don't think I misquoted you then. What 
you just said is not any different than what I said you said.
    Mr. Owens. If I said what you said I said, then I didn't 
mean to say what you said I said, and I apologize.
    Mr. Hutchinson. The point is, I think there is a difference 
among the panel, and I think there are some respectful 
differences in this body. I respect my colleagues, even though 
they might have a different view of this. I think it is an 
extraordinarily serious matter.
    I come as a former prosecutor. Perjury is just an 
extraordinarily serious thing to me, and I am weighing that. 
And so I just hope that America can see that we are trying to 
do this carefully and thoughtfully.
    One other point, finally. Some of you have referenced the 
``beyond a reasonable doubt'' standard that arguably was 
applied, and I have heard that mentioned twice. In reading your 
statements in 1974 as well as the committee report, I believe 
that each of you applied the standard of clear and convincing 
evidence ``and not beyond a reasonable doubt.'' Am I correct in 
that?
    Father Drinan. That is my recollection, yes.
    Mr. Owens. The testimony that I just read into therecord in 
response to Mr. Canady's earlier quote says that I promise that I would 
impeach only if there were hard evidence and which was sufficient to 
support conviction in the Senate. That is my 1974 testimony. I wouldn't 
say that at another time I didn't talk about clear and convincing, but 
the test I had set for myself was ultimately what would sustain 
conviction in the Senate. But I am sure----
    Mr. Hutchinson. It is in the record and in the additional 
views. It was clear and convincing.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Indiana, Mr. Pease. The gentleman from Indiana, 
can you yield to me for one quick question?
    Mr. Pease. Of course, Mr. Chairman.
    Mr. Sensenbrenner. I would like to ask the panel, having 
heard about the necessity for bipartisanship, if during the 
1974 Watergate hearings all of the Republicans who were then 
serving on the Judiciary Committee got taken in by the Nixon 
White House stonewall and refused to vote for any of the 
articles of impeachment, would the Democrats on the committee 
have gone ahead and reported them out of committee and referred 
them to the House for debate and vote?
    Ms. Holtzman. But that is not what happened, Mr. Chairman. 
What happened is----
    Mr. Sensenbrenner. The question, Ms. Holtzman, was you said 
that it was necessary to report out articles on a bipartisan 
basis. My question is if bipartisanship could not have been 
achieved in 1974, would you have proceeded to report the 
articles out of committee and sought a floor vote on those 
articles? It is a simple question that can be answered yes or 
no.
    Ms. Holtzman. Well, I don't know that anybody can rewrite 
history. The fact is that the committee worked together to 
achieve a bipartisan result. We crafted articles of impeachment 
because--together--because we understood that the country would 
never accept a partisan impeachment and we wanted to make sure, 
because in answer to Mr. Hutchinson----
    Mr. Sensenbrenner. I guess I am not going to get an answer 
to that question. I will give the time back to Mr. Pease. Mr. 
Pease is recognized. He can proceed as he wants.
    Mr. Pease. I did want to follow up on my colleague Mr. 
Hutchinson's line of inquiry regarding the proper standard, and 
whatever folks may have said 25 years ago or today is not as 
important to me as the current discussion of what you think 
ought to be the standard. Whatever the differences may be on 
what constitutes an impeachable offense, what do you think 
ought to be the standard, number one, and we have heard beyond 
a reasonable doubt and clear and convincing; and secondly, what 
do you think ought to be the process by which we make the 
decision about whether to go forward? Whether that ought to be 
simply that we believe there is probable cause, or whether it 
ought to be that we believe that there will be a conviction in 
the Senate, or whether it is something in between, such as 
whether there is sufficient evidence for a conviction, not 
necessarily a certainty that there will be?
    I know that is two major questions for a short period of 
time, but if you could address both of those, I would 
appreciate it. We will just start with Ms. Holtzman.
    Ms. Holtzman. I tried to address it in my testimony, that 
very point. Personally when I voted for impeachment, I believed 
that we did have evidence beyond a reasonable doubt and that 
that was the standard that in our hearts we used. If we had to 
articulate it, maybe we wouldn't, and maybe that standard 
doesn't have to apply. But it has to be a very, very high 
standard, because of the disruption of the country that you 
should be able to do.
    With regard to how you assure yourselves, I would say 
definitely not as a grand jury. We are not dealing with 
probable cause. We believed when we voted for the impeachment 
of Richard Nixon, we believed not only that he should be 
removed, but that he would be removed and that he had to be 
removed.
    Mr. Pease. Do you believe that that ought to be the 
standard?
    Ms. Holtzman. Yes, because I don't think you start this 
process lightly. I think you have to have in your head that the 
conduct warrants removal and that the likelihood of removing 
him be there.
    Father Drinan. Sir, the evidence was so overwhelming that 
we didn't have to get to the refined question of clear or 
present or beyond every reasonable doubt. It was just so 
absolutely baffling.
    Mr. Owens. Mr. Pease, I don't think the grand jury analogy 
is perfect here, and thus clear and convincing is not 
necessarily definitive and not the best answer.
    I thought that and feel today where the country is so 
polarized on this issue, and it was not in 1974, I think today 
that unless you have, not only clear and convincing evidence, 
but evidence beyond a reasonable doubt to justify your 
indictment of the President, that you ought not to indict, that 
you ought to have another alternative punishment in mind.
    Mr. Pease. Thank you all. I know there is not much time 
left, but I yield what I have to Mr. Canady.
    Mr. Canady. I do want to respond to the point that was 
made, which is totally erroneous. I did not misrepresent the 
gentleman's testimony, and I think if you look at the 
testimony, you will understand that the gentleman from start to 
finish focused on the inadequacy of the evidence that was 
before the committee, what you referred to as hard evidence. 
And that is inconsistent with what you have represented to the 
committee here today, that the committee at that point was 
deciding to drop the matter because they decided that it was 
not an impeachable offense.
    You end up saying to the committee I urge my colleagues 
based on that lack of evidence to reject this article.
    Your whole focus was on a lack of evidence, and not on the 
claim that you have made today that tax fraud, even if proven, 
would not be an impeachable offense.
    Mr. Owens. Well, the gentleman has not given me the 
courtesy of giving me a copy of my remarks, and I don't have 
them in mind.
    Mr. Canady. You have them before you. You read from it.
    Mr. Owens. I have this page, and I just quoted it to the 
gentleman.
    Mr. Canady. You know the paragraph that comes right after 
it. It is right there. I ask unanimous consent to place these 
full remarks in the record of the hearing.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.017
    
    Chairman Hyde [presiding]. Without objection, so ordered. 
The gentleman's time has expired. Mr. Cannon.
    Mr. Cannon. Mr. Chairman, I would like to begin by 
associating myself with the remarks of Mr. Goodlatte, when he 
said President Clinton's purpose appears not to have been to 
avoid personal embarrassment, but to obstruct justice in the 
Jones case and to suggest it to the American people that we are 
all looking for evidence from the President to the contrary on 
that point. I would also like to associate myself with your 
comments, Mr. Chairman, about where you asked the question how 
inconvenient is the erosion of the rule of law comparing that 
to the inconvenience of an impeachment of the President.
    Now, we have some parallels today between myself and one of 
my witnesses, that is Mr. Owens from Utah. He was a freshman in 
the Nixon impeachment 24 years ago, as am I. We are both 
lawyers, we both have deep interests in Utah, and national 
public lands issues. I might say that we also have some very 
deep differences that divide us, but I don't think that that 
goes beyond our friendship.
    Frankly, Mr. Owens, I was intrigued by the comments that 
you have made without much opportunity to really flesh them out 
about censure. I take it you believe that censure is an option 
we ought to have. Frankly, I think that is something that many 
of us on the committee would like to see at least debated. 
Personally I am not yet of a view that censure is appropriate, 
for which I would like to hear your comments.
    You have talked about the seriousness of what the President 
did. Would you mind, first of all, commenting about the 
seriousness of what the President has done and why censure is 
appropriate in that context? And then if you would deal with 
issues like whether a penalty like a monetary penalty or an 
appearance in the well of the House would be appropriate?
    Mr. Owens. Well, I appreciate my friend from Utah's giving 
me this opportunity. I have argued for a long time, before 
Gerald Ford made it in a more persuasive way, that censure is 
the alternative here which should be considered.
    To lie, to mislead, under oath, and in my mind to look into 
the eyes of the American people and say in a straight, very 
straightforward way what is not just misleading, was a lie, 
that he ``did not have sex with this woman, Ms. Lewinsky,'' I 
think deserves some punishment. But it does not rise to the 
level of impeachability, as I said several times, and that 
there ought to be an alternative way of expressing the 
displeasure and the disapproval of the Congress, and state such 
before the American people. The American people, according to 
polls, would support censure.
    Mr. Cannon. How do you make censure substantial? Personally 
I don't think it means much. Would you add a penalty?
    Mr. Owens. I am not involved in any of the negotiations, 
but, of course, the press is saying the President would pay up 
to $300,000. I don't know, it sounds a little like another deal 
in this body recently----
    Mr. Cannon. I think that deal would result in $4.5----
    Mr. Owens. I am sorry?
    Mr. Cannon. I think that deal, if you modeled it on that 
deal, it would be about a $4.5 million penalty.
    Mr. Owens. Well, whatever. The President would have to 
agree to it, because you couldn't assess it. You have no 
authority, constitutional authority, to do anything in any 
material way to the President's powers short of impeachment.
    Mr. Cannon. If the President agreed to it, what does that 
do to separation of powers?
    Mr. Owens. The pain would be that he would be the second 
President in the history of the country to have been censured 
and condemned by this body. I think President Clinton would do 
whatever you require. He would pay, if he does pay a fine, he 
would come to the well of the Senate, or the House, and express 
his apologies and accept responsibility. That would be a very 
degrading experience, but it would get us beyond this crisis. 
It would be a powerful punishment, and in my view, as an old 
25-year observer of these issues, I think would be an adequate 
punishment, a proper punishment.
    Mr. Cannon. I wish I had more time, because I would like to 
pursue it, and maybe we can privately, but it seems to me the 
issue here is not punishment of the President; it is political 
hygiene, it is solving a problem, it is solving an example of 
the destruction of the rule of law, of the sanctity of perjury.
    I don't care whether the penalty is large or small. It 
doesn't seem to me that is the issues as much as the 
constitutionality of a penalty. I think that the submission of 
a President to either a penalty or to standing in the well of 
the House and demeaning the office of the presidency is a far 
graver constitutional problem than the inconvenience of an 
impeachment hearing, and thus I find myself compelled to think 
that there is only two alternatives, impeachment or 
vindication.
    Thank you. I yield back the balance of my time.
    Chairman Hyde. The gentleman from California, Mr. Rogan.
    Mr. Rogan. Thank you, Mr. Chairman.
    I not only welcome our former colleagues to the Judiciary 
Committee, but if I may be so bold, I welcome you home. I was a 
15-year-old rabid liberal Democrat during the Nixon impeachment 
debate. Having been transfixed to the television in those days, 
you were all heroes of mine. Although I am now more selective 
in my party affiliation, I still deeply respect your service to 
our country and to the Congress.
    Mr. Owens. I hope it wasn't our impeachment of the 
President which made a Republican of you, sir.
    Mr. Rogan. No, I just gave up drinking hard liquor! 
[Laughter.]
    A couple of things: First, with respect to the concept of 
censure, it is a fact that Andrew Jackson was censured by the 
Senate of one Congress, and then the censure was expunged by a 
later Senate when its majority makeup were of Jackson's own 
party. Further, my recollection in the law is that an 
``expungement'' means that the act never occurred for legal 
purposes. In fact, when criminal records are expunged, 
defendants can apply for a job and put down that they have 
never been convicted, and that legally is a truthful statement. 
So one of the problems with censure is that it can be removed 
and be expunged from the record.
    But I don't want to spend my time belaboring that point.
    There are a couple----
    Mr. Owens. Might I just comment on that, Congressman?
    Mr. Rogan. If I have time remaining, Congressman Owens, I 
would be more than happy to invite comment. But, as you know, 
the red light does come on rather quickly, and I do want to 
make a couple of observations.
    I am very proud of the fact that during the Watergate era a 
number of Republicans who served on this committee were 
prepared to put their party affiliation aside, to look at the 
merits of the case, and cast what had to be one of the toughest 
votes of their entire career.
    I remember as a freshman member of the California State 
Assembly voting against the budget of my Governor and how tough 
that was. I can't imagine what it had to be like for members of 
the Republican Party on this committee to vote to impeach the 
President of their party--probably a President who had appeared 
in their districts, had raised money for them, had supported 
them and had campaigned for them.
    Today there is the suggestion that if committee Democrats 
do not vote for any articles of impeachment, and all the 
Republicans on this committee do vote for articles of 
impeachment, that somehow delegitimizes the vote of this 
committee. I certainly hope that is not the expression that any 
of you are trying to make.
    I will cast my vote ultimately as a matter of conscience. I 
would never suggest that any of my colleagues on the other side 
would do anything other than the same.
    I know all of my colleagues on this committee, and I deeply 
respect them. On matters of grave national urgency not relating 
to impeachment, such as economic principles, foreign affairs, 
national security and the like, there are times when there are 
party line votes. It doesn't necessarily mean that partisanship 
is ruling the day. It means that people with honest differences 
of opinion have done their very best to make a decision as they 
see fit. And I am sure that has been the repeated legislative 
experiences of our three former colleagues who join us today.
    I am also concerned about what I perceive to be a double 
standard, not necessarily promulgated by this panel, but 
certainly suggested throughout the day by some. We are 
constantly being reminded that there are polls that have been 
taken suggesting that the American people do not want the 
President to be impeached and, therefore, Congress should 
abrogate their constitutional obligations and simply follow the 
polls.
    I reject that notion. The polls are interesting. They are 
something we politicians take into account. But if polls alone 
are to govern our judgment, we then should just simply shut 
down the legislative, executive and judicial branches and turn 
governing over to Dr. Gallop's organization.
    If somebody wishes to press the issue, then I respectfully 
suggest they consider the other side of it. The latest poll I 
have seen says that if the President lied to a grand jury, he 
should leave office--by a 57 percent margin. Further, the polls 
showed that if the President encouraged others to lie, he 
should resign. The agreement on that principle was 60 percent.
    Now, we don't see supporters of the President who argue we 
should follow the polls in committee down to the White House 
and saying, ``Mr. President, the polls explicitly say over and 
over that you should resign from office if you have lied.'' One 
can't have it both ways. In fact, according to my notes, even 
Congressman Owens said today he believed the President lied 
before the Federal grand jury.
    Those are a couple of observations I wanted to make with 
respect to the testimony that has been elicited today.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Rogan. Thank you, Mr. Chairman.
    My apologies to Congressman Owens. I was trying to squeeze 
a few seconds out for you.
    Chairman Hyde. The gentleman from South Carolina, Mr. 
Graham.
    Would Mr. Graham yield to me for just a second?
    Mr. Graham. Absolutely.
    Chairman Hyde. Put your mike on.
    Mr. Graham. Absolutely.
    Chairman Hyde. Mr. Rogan was talking about the efficacy of 
polls in our political careers, and I would like to ask Father 
Drinan a question, if you would, on polls. Someone said that if 
Jesus had taken a poll, he would never have preached the 
gospel. Do you agree?
    Father Drinan. That is beyond my realm.
    Chairman Hyde. Okay. I hope not. Mr. Graham.
    Mr. Graham. Thank you.
    Being a Baptist, that gets me going here.
    Let me make a couple of observations, and I really do 
appreciate your coming. I have talked to at least one of you 
privately. And this is very difficult. It is not like 
Watergate. It is not exactly what you were dealing with. In 
many ways what you were dealing with was probably more serious 
or at least you could put your hands around it and say it is 
more serious.
    You have really got to dig in this case I think to feel 
uncomfortable, and the more I dig, the more uncomfortable I 
feel, because it is easy to write it off as somebody, like the 
deer in the headlights. That is a good analogy. That is what I 
thought at first. I thought the President got stunned, he is 
trying to protect himself and, you know, he just started 
telling a lie and couldn't get his way out of that.
    I am not so sure I believe that anymore, but I do believe 
this: If we impeach a President based on a consensual sexual 
affair, no matter how inappropriate, we are going to screw this 
country up, pardon the terms. I don't mean to be crude about 
it, but we are going to really mess this country up. And that 
has always been off the table for me, because I don't want to 
go down that road. Because we have elections, and impeachment 
should be reserved for very serious offenses like you were 
dealing with.
    Now, I would say this to you, that if every Republican had 
voted no during your time, history would acquit you well. You 
were right to have voted to remove President Nixon.
    Let me tell you what I am becoming more and more concerned 
about. This is more like Peyton Place than it is Watergate, but 
there is a component to this case that is very unnerving.
    Richard Nixon cheated the electoral process. I think 
Richard Nixon didn't trust the American people to get it right 
in an election, and he had operatives going and breaking into 
the other side's office, and when he knew about it he cheated 
to cover it up. Richard Nixon cheated the American electorial 
process.
    I am beginning to believe more and more that this is not 
about being caught in the headlights, of a person caught in a 
lie about a consensual matter, but that the President was very 
much, in an organized fashion, trying to cheat the legal system 
and cheat the party in opposition to him.
    I believe, whether you believe it or not, that when he went 
to his secretary and planted a story in her mind along the 
lines, 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 said 
that the day after his deposition, that he had a sinister 
motive, not an innocent motive. I believe that he went to Ms. 
Currie in an unlawful manner to change her testimony, and I 
will tell you later what I think was going to happen to Monica 
Lewinsky.
    I believe that when his lawyer had to write a letter to the 
court saying I apologize for putting a false affidavit in 
evidence, that his lawyer was duped by the President. I believe 
that, like Richard Nixon, Bill Clinton was very involved in 
unlawful activity, to cheat the legal system.
    I am willing, with some admissions on his part and 
reconciliation on his part to the law, to consider another 
disposition, because this is not totally like Watergate. 
However, if he does not reconcile himself with the law, if he 
continues to dance on the head of a pin, if he continues to 
bring people in here who won't say anything about the facts but 
tell me how to vote, I don't think he has the character to be 
our President, and I will vote to impeach him based on what he 
did, not based on any other sinister motive.
    I yield back the balance of my time.
    Chairman Hyde. I thank the gentleman.
    The gentlewoman from California, Ms. Bono.
    Mrs. Bono. Thank you, Mr. Chairman.
    Way a long time ago, Mr. Owens, you made a comment that hit 
me pretty hard. You mentioned that it is our fault that 7-year-
olds in this country have heard about sex, and I disagree with 
that statement wholeheartedly.
    I think that we have to remember that the President is a 
role model. It is solely his actions that have caused this, not 
ours. I think if we start with that, at least putting some 
responsibility where it belongs, it is a pretty good start, at 
least as a parent. I would like to just point that out. I don't 
know if you truly meant that it is our fault.
    Mr. Owens. I don't think I said it in that fashion. I said 
it is this committee's responsibility or fault that they passed 
the raw grand jury evidence directly, unexpurgated, gave to 
America, to the 7 and 8 year olds, the knowledge, or raised the 
question of, what oral sex is, what telephone sex is and what 
you can do with a cigar sexually.
    I was interviewed yesterday in Salt Lake City as I left by 
a reporter who said, I don't appreciate my little children 
asking me those questions.
    Mrs. Bono. Mr. Owens, I get that question more than 
anybody. I really have to say I get that quite often, and I 
have to tell you that is not quite what you said, and it is 
nobody's fault. It is not our fault. The responsibility must 
lie with the President with this one. You know, the buck has to 
stop there on that one.
    I want to make a point generally in response to what the 
witnesses have said today. You have said that in 1974 you voted 
according to your consciences and have no regrets. Please know 
that now, in 1998, we are proceeding according to our 
consciences based on the facts and the law. None of our guests 
have done what my colleagues and I have done. That is gone to 
the Ford Building and reviewed the thousands of pages of 
documents and watched the videotape deposition. Those are the 
facts that are relevant to this inquiry. I am sure if you had 
taken the time to review this compelling evidence that you 
would also support the impeachment with no regrets.
    But my question is to you, Ms. Holtzman, somebody I respect 
and I admire for having been in this seat years ago. If in 1974 
you would have had no Republican support whatsoever, would you 
still have reported out those articles of impeachment?
    Ms. Holtzman. Well, I know you go back to that because you 
find yourself in a very awkward position, where you don't have 
the support and there is no bipartisan support. So I want to 
urge what my colleague Wayne Owens said, which is to find an 
alternative that can bring Republicans and Democrats together.
    Because even if you are voting in your conscience, in the 
end, how does the public judge the legitimacy of these 
proceedings? If it is bipartisan, if there is a common ground 
found, that is something the people can take away and say the 
Congress acted properly. If it doesn't find the common ground, 
then the people are befuddled and confused and bewildered. That 
is what I am saying.
    This is such a serious effort, and I don't mean to minimize 
the search of your conscience or the difficulty of this job. I 
was there. It is not easy. What I am saying to you is how 
important it is to come away with public respect for and public 
confidence in what you are doing. Maybe the common ground that 
is not your first choice, but maybe, if we are going to live 
with this verdict for history, it is the best choice.
    Mrs. Bono. I am curious, what evidence do you base this on? 
And have you seen the videotape deposition or read the 
transcript in its entirety? What are you comfortably basing 
your opinion on today?
    Ms. Holtzman. Well, you don't have bipartisan support right 
now. I am trying to say to you, in terms of ultimately how this 
go down in history and how the public will accept it and how 
they will deal with----
    Mrs. Bono. My question is a simple one.
    Ms. Holtzman [continuing]. They won't. It will be 
difficult.
    Mrs. Bono. Can you answer my question?
    Ms. Holtzman. I am sorry. I must have misunderstood your 
question.
    Mrs. Bono. You must be a lawyer, because you are good at 
this.
    My question is very simple. It is a very simple one, but, 
actually, Lindsey Graham has asked for me to give him my time, 
and I will be happy to do that.
    Mr. Graham. I don't mean to interrupt. Just do you believe 
the President committed grand jury perjury, Ms. Holtzman?
    Ms. Holtzman. Well, he came very close to a line. I don't 
know whether he danced over it----
    Mr. Graham. But--very close, but no cigar. Let me tell 
you--and, every time, that shows you the problem, where this 
case--there is a thousand million jokes out there. This is 
serious. There is a thousand million jokes, and you can't go to 
Rotary Club--and it is not because of our fault. It is because 
of Bill Clinton's fault. And if he doesn't reconcile himself 
with the law--he committed grand perjury. And when you come to 
believe that like we do, if it is 21-16, so be it.
    Ms. Holtzman. But if you do it, you need to do it with 
evidence. You need to do it with the facts. You need to do it 
with witnesses. You have to assure the public that this process 
has been one that is honorable.
    Chairman Hyde. The gentleman and the gentlewoman's time has 
expired. And Mr. Conyers, who reserved his time earlier today, 
is now recognized.
    Mr. Conyers. I want to congratulate my former colleagues 
for a long afternoon and evening's work here. You have helped 
me keep hope alive that we might somehow be able to persuade a 
few Members of Congress, maybe even on this committee, some of 
whom have spoken today, about evidence against the President.
    But, you know, generalities are not enough to impeach. 
Instead, there must be concrete evidence that is clear and 
convincing and arises to the level of an impeachable offense. 
And when we look at the evidence, examine it carefully, what do 
we see? An allegation of perjury in the Paula Jones deposition.
    Well, what we see beyond the fact that the President's 
testimony was not material is that he was confronted at the 
deposition with a tortured definition of sexual relations that 
he hadn't seen before and which was inconsistent with the 
Webster definition. To make matters worse, the presiding judge 
changed the definition as the President sat there.
    The simple fact supported in the record is that the 
definition was ambiguous, and it is the Jones lawyers, not the 
President, who bear the responsibility for that ambiguity. They 
could have just asked the President who touched who where, but 
they chose not to. The President can't be blamed for that. That 
cannot, therefore, be the foundation for an article of 
impeachment.
    Now, my friends across the aisle say that the President 
lied in the grand jury, but they neglect to mention that he 
admitted to an improper sexual relationship there. So then we 
have these three alleged, attenuated theories of perjury: that 
the President somehow understood the term ``sexual relations'' 
to be something more than the limited and contorted definition 
provided by the Paula Jones lawyers; two, that he lied about a 
difference of a mere 3 months regarding the inception of the 
relationship; or, three, that he actually touched Ms. Lewinsky 
in certain places.
    Ladies and gentlemen, are we serious? Do we really intend 
for the second time in our history to impeach a President over 
a case that holds out these weak, puny perjury charges as its 
foundation? Do we wonder why this committee's ratings are not 
going up? We are in trouble here inside of this room.
    Some of my Republican friends have realized the flimsy 
nature of these allegations and are trying--well, they are 
grasping at an even perhaps less persuasive case on 
obstruction.
    Think about where that goes. They say that Lewinsky's 
return of the gifts somehow amounts to obstruction, but then 
again neglect to mention that the testimony clearly establishes 
that Ms. Lewinsky and not the President sought the return of 
the gifts.
    Remember also that Monica Lewinsky said no one told her to 
lie, no one promised her a job. The job search started long 
before the Jones case, and Betty Currie wasn't even on a 
witness list when the President refreshed his recollection with 
her. So that conversation could not possibly lead into witness 
tampering.
    Now we hear novel charges that the President lied about his 
conversations with Vernon Jordan. But when you examine the 
record closely, the record is clear that the President answered 
poorly worded questions regarding his conversation with Jordan 
to the best of his current knowledge. There is no evidence that 
he gave false answers.
    So I close, the charges against the President, when 
stripped away of partisan rhetoric and factual gaps, are, in 
reality, a paper tiger. Do we on the Democratic side contest 
the charges? We sure do, and we assert that this committee has 
done no independent factual inquiry, no evidentiary witnesses 
as it is incumbent upon them to do to justify any case of 
impeachment.
    I am delighted to, if the Chairman will allow any of you 
that would like to make a comment about my assertions as the 
final questioner, perhaps you might want to try that. Father 
Drinan?
    Father Drinan. You want additional comments?
    Mr. Conyers. Well, no, if you had something that you added 
to my comments. But I didn't want to prolong my time. It has 
expired.
    Father Drinan. I think we all have to pray for each other 
so we can come to the right decision.
    Chairman Hyde. That is a very----
    Mr. Conyers. That is appropriate.
    Chairman Hyde. That is a very appropriate note to end this 
session on.
    Mr. Owens. Mr. Chairman.
    Chairman Hyde. Who is seeking----
    Mr. Owens. In front of you, sir. I just want to commend you 
for your conduct of these hearings. I think you bring great 
integrity to them.
    Your old friend from Utah strongly believes that if you are 
to heal the country and bring us together you have to give an 
alternative for a censure resolution, and I urge in the 
strongest way that you afford that opportunity to your 
colleagues in the House. I thank the gentleman for his 
courtesy.
    Chairman Hyde. I certainly hear what you are saying and 
take note of it.
    Ms. Holtzman. I would like to echo his comments, Mr. 
Chairman.
    Chairman Hyde. Fine. I just want to thank you all, three 
wonderful troopers, former members of this great committee, and 
we were instructed and illuminated by your being here today.
    Mr. Owens. Any time you want us to come here and tell you 
how to do your job, Mr. Chairman, you just give us a call.
    Chairman Hyde. You may have to wait in line, but that is 
fine. Thank you so much.
    Now we are ready for the next panel.
    Our third panel is composed of James Hamilton and Richard 
Ben-Veniste. Would the witnesses please rise to take the oath?
    [Witnesses sworn.]
    Let the record reflect the witnesses answered the question 
in the affirmative.
    James Hamilton is a member of the Washington, D.C., law 
firm of Swidler, Berlin, Shereff & Friedman. He served as 
Assistant Chief Counsel in the Senate Watergate Committee and 
is the author of The Power to Probe, a Study of Congressional 
Investigations. He is former Chairman of the Legal Ethics 
Committee of the District of Columbia Bar.
    Richard Ben-Veniste served as an Assistant United States 
Attorney and Chief of the Special Prosecution Section in the 
Office of the United States Attorney for the Southern District 
of New York. He was also Assistant Special Prosecutor and Chief 
of the Watergate Task Force from 1968 to 1973. More recently, 
he served as Minority Chief Counsel to the Senate Whitewater 
Committee during 1995-1996. He has also served as Special 
Counsel to the Senate Subcommittee on Government Operations and 
as Special Counsel to the Senate Subcommittee on District of 
Columbia Appropriations.
    Each of you will be recognized to make a 10-minute 
statement and then be subject to the 5-minute rule questioning 
by the members.

TESTIMONY OF JAMES HAMILTON, ESQUIRE, SWIDLER, BERLIN, SHEREFF 
 & FRIEDMAN, WASHINGTON, DC; AND RICHARD BEN-VENISTE, ESQUIRE, 
                 FORMER ASSISTANT U.S. ATTORNEY

    Chairman Hyde. So, Mr. Hamilton, when you are ready, we 
will put the switch on. Either one want to go first?
    Mr. Ben-Veniste. I think I will go first.
    Chairman Hyde. Very well. Mr. Ben-Veniste.

           TESTIMONY OF RICHARD BEN-VENISTE, ESQUIRE

    Mr. Ben-Veniste. Thank you, Mr. Chairman, Mr. Ranking 
Member and members of the committee.
    I have served under Democratic and Republican United States 
attorneys as a Federal prosecutor. I have served as an 
Assistant Special Prosecutor in the Watergate Special 
Prosecutor's Office. I have prosecuted corrupt officials of 
both political parties, including the administrative assistant 
to a Democratic Speaker of the House.
    At the request of both Democratic and Republican Members of 
the Senate, I have served in a pro bono or part-time capacity 
in various capacities, as the chairman has indicated. I have 
been engaged in the private practice of law since 1975 and have 
represented clients in a wide variety of civil and criminal 
matters.
    I am presently a partner in the D.C. office of Weil, 
Gotshal and Manges, and, obviously, the views which I express 
today are my own. I am providing my observations and analysis 
not as a witness to the events in question, but as one whose 
professional experience over the last 30 years may provide some 
perspective on the issues before you.
    I confess that I have spent more than one sleepless night 
considering whether anything that I can say will help extricate 
us all from the terrible mess that we are in.
    In my view, this process has suffered from too much 
partisanship, too much hypocrisy, too much sensationalism, and 
too little time for reflection.
    I ask whether impeachment will become still another arrow 
in the quiver of the warrior class of ever more truculent 
partisan politicians in Washington. If this is so, will we ever 
see an end to the gamesmanship of ``gotcha'' and pay-back that 
has already taken such a toll on civility and comity within 
these hallowed halls?
    I have been talking about proportionality and moderation 
for some time. Back in August, well before Mr. Starr sent his 
referral to this committee, in an opinion piece published in 
the Washington Post I suggested that the appropriate resolution 
of the Lewinsky matter was for a group of respected leaders to 
come forward and propose a congressional resolution of 
reprimand to deal with Mr. Clinton's reckless and improper 
personal conduct.
    I continue to believe that respect for the momentousness of 
the constitutional remedy of impeachment and appreciation of 
the common sense application of proportionality to the 
offensive conduct in question make a resolution of censure the 
appropriate result. Such a resolution, not impeachment, will 
give voice to the public will in retaining their twice-elected 
President's services, while expressing firm disapproval for his 
private conduct.
    In my view, such a resolution would be consistent with the 
obligations of the House of Representatives and would be in the 
best interests of our Nation.
    The first Watergate Special Prosecutor, Archibald Cox, was 
fired on the orders of Richard Nixon when he refused to back 
down after subpoenaing Mr. Nixon's famously incriminating White 
House tape recordings. In response to the firestorm of public 
opinion following the Saturday Night Massacre, President Nixon 
replaced Professor Cox with Leon Jaworski, a conservative Texan 
who vowed to continue the investigation with the independence 
and professionalism that had marked Mr. Cox's truncated turn at 
the helm. By all accounts, Leon Jaworski made good on his 
promise, and today his record provides the model against which 
all high-profile investigations and prosecutions are measured.
    In Watergate, the serious abuses of power committed by the 
Nixon administration resulted in the prosecution and conviction 
of numerous individuals who held public office during Mr. 
Nixon's tenure, including two Attorneys General, the White 
House Chief of Staff, the chief and deputy domestic advisors to 
the President, a senior advisor to the President, the counsel 
to the President, and many others. Their offenses went directly 
to the abuse of power of the President's office and misuse of 
the CIA, the FBI, the IRS, the FCC, in violation of important 
rights of others.
    The obstruction of justice and perjury that was committed 
in furtherance of the Watergate coverup was designed to shield 
higher-ups from detection while blaming everything on the lower 
level individuals who had been caught red-handed.
    Upon his appointment, Mr. Jaworski immediately withdrew 
from his lucrative law practice and devoted himself entirely to 
his duties as special prosecutor. Even with President Nixon's 
unlawful firing of Archibald Cox, the Watergate coverup case 
was investigated and prosecuted within 21 months of the 
creation of the Special Prosecutor's Office.
    The credibility of the Watergate Special Prosecutor's 
Office was dependent on the public's perception that our 
investigation would be professional, impartial and fair. If we 
had leaked such explosively damaging evidence as President 
Nixon's taped instruction to continue the coverup or his 
admission regarding the promises of presidential clemency to 
the Watergate burglars, it would not only have been unfair, it 
would have violated the law. No leaks occurred.
    Mr. Starr has the unhappy distinction of being the first 
Independent Counsel to come under investigation himself for 
unethical and possibly illegal conduct. In addition to the 24 
prima facia instances of improper leaks of grand jury material 
identified by Chief Judge Norma Holloway Johnson, there was the 
spin leak of the Starr referral itself in the days leading up 
to its actual transmittal to this body.
    Mr. Starr's response to Representative Lofgren's question 
as to whether he would release any journalists from promises of 
confidentiality, ``that it would be unwise'' for him to do so, 
he said, may well be true, but it only serves to reinforce the 
basis for Judge Johnson's suspicions.
    In addition, the aggressive and disproportionate tactics 
employed by Mr. Starr's office, sometimes in violation of 
Department of Justice guidelines, have left the public with a 
justifiable perception that Mr. Starr has conducted more of a 
crusade than an investigation, with the political objective of 
driving President Clinton from office rather than uncovering 
criminal activity.
    Leon Jaworski took extraordinary care not to intrude beyond 
the proper boundaries of his office. Mr. Jaworski would be the 
last person to suggest that an attempt to pierce the attorney-
client privilege of the President or to interfere with the 
time-honored protective function of the Secret Service could be 
justified as an appropriate exercise of prosecutorial 
discretion, no matter what a court might ultimately rule.
    Even 25 years ago, it was the practice of Federal 
prosecutors not to subpoena the target of a grand jury 
investigation. On the other hand, it was considered unfair to 
deprive the target of an investigation the opportunity to 
testify if he so desired.
    Accordingly, Mr. Jaworski extended an invitation to 
President Nixon to testify before the grand jury. When Mr. 
Nixon declined, Mr. Jaworski did not publicize the exchange, 
because to do so would have been unfair to comment on Mr. 
Nixon's decision not to testify. And, again, there was no leak.
    By comparison, Mr. Starr has aggressively pursued every 
opportunity to push the limits of legal boundaries.
    Mr. Jaworski recognized that he had a responsibility to 
transmit to Congress important evidence bearing on the House 
Judiciary Committee's impeachment inquiry. At the same time, he 
was careful not to encroach on Congress's constitutional 
function of evaluating evidence and determining whether 
impeachment was warranted. Because the evidence was obtained 
through grand jury subpoenas, Mr. Jaworski first sought the 
grand jury's approval and then sought permission from Chief 
Judge Sirica to transmit the material as an exception to rule 
6(c), which would otherwise prohibit its dissemination.
    Chairman Hyde. Can you wind up?
    Mr. Ben-Veniste. I would like to, Mr. Chairman. 
Unfortunately, yesterday I was told I would have 20 minutes and 
I have tried to boil it down as best I can.
    Chairman Hyde. Well, I don't want to foreclose you because 
we are down to just two witnesses, so----
    Mr. Ben-Veniste. May I have an additional five minutes, 
sir?
    Chairman Hyde. It is Christmas week, but you are setting a 
terrible precedent with my Republicans, but go ahead. Take 
five.
    Mr. Ben-Veniste. Thank you, Mr. Chairman.
    Judge Sirica reviewed the transmittal which we had sent up 
to him through the grand jury. He found that the transmittal 
rendered no moral or social judgments. He found that the grand 
jury had taken care to assure that the report had no 
objectionable features, and that the grand jury had respected 
its own limitations and the rights of others, and then he 
passed it along to the Judiciary Committee.
    At the same time, Mr. Jaworski did not inform the House 
that the grand jury had voted to authorize him to name Richard 
Nixon as an unindicted coconspirator in the upcoming Watergate 
cover-up trial. While the grand jury's action provided insight 
into its views of the evidence, the grand jury's decision was 
not itself evidence, and again, it would have been prejudicial 
at that point to make that information public, and again, this 
explosive information was never leaked.
    Mr. Starr, as we know, did not submit his report to the 
grand jury for its approval or consideration, and thus no one, 
the chief judge, and not even the three-member court which gave 
him carte blanche authority, ever reviewed the aggressively 
accusatory and gratuitously salacious referral before it was 
transmitted to this committee. Mr. Starr's ethics advisor 
resigned when Mr. Starr agreed to act as chief advocate for 
impeachment, as a witness before this committee.
    I believe, Chairman Hyde, that you stated at the outset 
that in substance--and I am not quoting, but this is my own 
recollection--that unless the public perceived this exercise 
before your committee as a bipartisan effort, that it would not 
have the kind of credibility necessary to bring an article of 
impeachment to the Floor of the House. In my view----
    Chairman Hyde. If I could just interpret, what I really 
said was that the impeachment would not succeed without 
bipartisan support, but I was adverting to the two-thirds 
requirement in the Senate.
    Mr. Ben-Veniste. You mean conviction?
    Chairman Hyde. Yes, I was talking about that. My hope was 
that as this process moved along, the public would get more and 
more educated as to its details, but I never really expected a 
lot of bipartisanship here, although I hoped for it. Thank you.
    Mr. Ben-Veniste. In my view, Mr. Chairman, the inability to 
find a bipartisan consensus in this committee is not a function 
of the individual characteristics of the Members, but it is 
more rooted in the wide gulf between the President's conduct, 
even assuming that the factual allegations against him are 
true, and were proved, and the grave consequences of a vote of 
impeachment.
    I do not condone the President's conduct in his 
relationship with Ms. Lewinsky, or his conduct in the Paula 
Jones deposition. Indeed, I was personally let down and 
disappointed by his conduct. But it is clear to me that 
attempting to criminalize that conduct, much less make it the 
basis of an article of impeachment, would do a disservice to 
the Constitution and any notion of proportionality, moderation, 
and common sense.
    I thank you for extending the time, Mr. Chairman.
    Chairman Hyde. Thank you, Mr. Ben-Veniste.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.018
    
    [GRAPHIC] [TIFF OMITTED] T3320.019
    
    [GRAPHIC] [TIFF OMITTED] T3320.020
    
    [GRAPHIC] [TIFF OMITTED] T3320.021
    
    [GRAPHIC] [TIFF OMITTED] T3320.022
    
    [GRAPHIC] [TIFF OMITTED] T3320.023
    
    [GRAPHIC] [TIFF OMITTED] T3320.024
    
    [GRAPHIC] [TIFF OMITTED] T3320.025
    
    [GRAPHIC] [TIFF OMITTED] T3320.026
    
    [GRAPHIC] [TIFF OMITTED] T3320.027
    
    Chairman Hyde. Mr. Hamilton.
    Mr. Hamilton. Mr. Chairman, members of the committee, thank 
you for the opportunity to address you in this----
    Mr. Conyers. Move your mike closer, sir. Thank you.
    Mr. Hamilton. Thank you for the opportunity to address you 
on the momentous issue of impeachment that you now face. I wish 
to focus mainly on the abuse of power allegations made by Mr. 
Starr in items 10 and 11 of his submission to this committee 
and by Mr. Schippers in item 14 of his reformulation of the 
charges. Read together, the assertions are that President 
Clinton, in addition to committing perjury, abused his power by 
various other actions:
    First, by lying to the American people and the Congress 
about his relationship with Ms. Lewinsky. Second, by lying to 
his wife, the Cabinet, and his present and former staff about 
that relationship, which caused some of them to repeat his 
falsehoods to the grand jury, the public and the Congress. 
Third, by repeatedly and unlawfully invoking executive 
privilege to conceal his personal misconduct from the grand 
jury. And fourth, by refusing six invitations to testify before 
the grand jury, and by declining to answer relevant questions 
when he did testify in August 1998.
    A central question before this committee and the Congress 
is whether these alleged abuses of power, assuming they are 
proven true, rise to the level of impeachable offenses. In my 
view, they do not.
    A proper starting point is the abuse of power allegations 
in Article 2 of the impeachment resolution against President 
Nixon that caused this committee to vote 28-to-10 to impeach 
him. The contrast between President Nixon's conduct and 
President Clinton's conduct is striking.
    The committee voted to impeach Nixon for the following five 
abuses of power: first, for causing the Internal Revenue 
Service to initiate audits and investigations of Nixon enemies, 
and to provide his associates with information about these 
enemies for the President's political benefit. Second, for 
causing the FBI and the Secret Service to engage in unlawful 
wiretaps for the President's political advantage, and for 
causing the FBI to conceal evidence of these wiretaps. Third, 
for maintaining a secret investigation unit, the plumbers, that 
using CIA resources and campaign contributions, engaged in various 
unlawful covert activities, including the break-in of the office of 
Daniel Elsberg, psychiatrist. Fourth, for allowing conduct that impeded 
the investigations of the break-in of the DNC headquarters, the ensuing 
cover-up, and other misdeeds. And, fifth, for interfering with the FBI, 
the Criminal Division, the Watergate special prosecutor's office, and 
the CIA for personal political advantage. This interference included 
Nixon's firing of Special Prosecutor Cox and his attempts to abolish 
the special prosecutor's office in order to stymie its investigation.
    Mr. Chairman, this conduct rightly was considered to 
constitute high crimes and misdemeanors that justified 
impeachment. To use the words of Founder George Mason, who 
proposed the phrase ``high crimes and misdemeanors,'' Nixon's 
conduct constituted great and dangerous offenses against the 
State that amounted to acts to subvert the Constitution. The 
notion of great and dangerous of- 
fenses against the State captures the essence of what an 
impeachable offense should be. It must be as Alexander Hamilton 
said. It must relate chiefly to injuries done to the society 
itself. A President should not be impeached to subject him to 
punishment, but rather, to protect the State and society 
against great and dangerous offenses that might reoccur if he 
is allowed to remain in office.
    I respectfully submit that the alleged abuses by President 
Clinton do not indicate that he is a danger to the Nation. 
Lying to the public and to his Cabinet and aides is 
disgraceful, but if we would impeach all officials who lie 
about personal or official matters, I fear that the halls of 
government would be seriously depleted. Other Presidents, for 
example, Lyndon Johnson as to Vietnam, have not been candid in 
their public and private statements. There must be a higher bar 
for impeachment.
    It is true that Article 1 of the impeachment resolution 
against Nixon charged that he misled the public about the scope 
of his administration's investigation of Watergate misconduct, 
and the lack of involvement by administration and reelection 
committee personnel in this misconduct. But these statements 
involve lies about official actions and were part of a massive 
cover-up of government misdeeds. This is far different than 
lies about private consensual sexual conduct.
    The claim that unsuccessfully asserting executive privilege 
to the grand jury is impeachable is, in my view, 
extraordinarily thin. The President did so upon the advice of 
counsel, and the district court recognized that the President's 
conversations were presumptively privileged, although it found 
that the needs of the criminal justice system outweighed that 
privilege. At no time did the court suggest that the privilege 
was claimed in bad faith. Losing a privilege argument, Mr. 
Chairman, should not present grounds for removal from office.
    As this committee may know, I had my own battle with Mr. 
Starr about whether Vince Foster's attorney-client privilege 
survived his death, which I won in the Supreme Court. Even in 
my angry moments about that case, and there have been some, I 
would not contend that Mr. Starr should be removed from office 
under the good cause provision of the Independent Counsel Act 
simply because he failed to convince the Supreme Court that he 
was right.
    Neither the President's reticence to appear before the 
grand jury, nor his failure to answer certain questions put by 
the prosecutors, should constitute impeachable offenses. The 
President was well aware that he was facing a hostile 
prosecutor, of whom he had much to fear. He was not under 
subpoena, and thus had no obligation to appear at a time 
certain. Moreover, Mr. Starr agreed to the rules that allowed 
the President to decline to answer certain questions in his 
grand jury deposition. In these circumstances, to brand his 
conduct as impeachable is untenable.
    The claim that the President lied under oath, of course, is 
more troubling than these other allegations against President 
Clinton. But lying about private consensual sexual conduct 
seems more appropriately designated as a low crime, rather than 
a high crime. While reprehensible, it is not a great and 
dangerous offense against the State that demonstrates the 
necessity of removing the President from office to protect the 
Nation from further abuses.
    Now, I readily concede that lies under oath about treason, 
bribery, the break-in at the DNC, or matters of national 
security could be high crimes and thus impeachable, but the 
conduct at issue seems of a different character. The committee 
should recall that the claim that President Nixon fraudulently 
evaded his tax obligations, which essentially involved private, 
not official wrongdoing, was not made part of the impeachment 
charges against him.
    Mr. Chairman, because this Nation requires a strong and 
secure presidency, this committee and Congress should be chary 
of making impeachment too easy. Long ago, in 1691, the 
Solicitor General, later Lord Chancellor Somers, told the 
British Parliament that the power of impeachment ought to be 
like Goliath's sword, kept in the temple and not used but on 
great occasions. In a similar vein, Justice Story wrote that 
impeachment is intended for occasional and extraordinary cases 
where a superior power, acting for the whole people, is put 
into operation to protect their rights and to rescue their 
liberties from violation.
    Mr. Chairman, we must guard against turning our system into 
a parliamentary one, where a national election can be negated 
by a legislative no-confidence vote.
    Chairman Hyde. Would you like another five minutes?
    Mr. Hamilton. I would like another three minutes.
    Chairman Hyde. Oh, that is so much the better. Please 
continue.
    Mr. Hamilton. This is particularly true because the 
Congress has another tool with which to express its strong 
disapproval of the President's action: A concurrent resolution 
of censure. With the Chair's permission I will submit for the 
record several articles I have recently written showing that a 
concurrent resolution of censure would be fully constitutional 
and in accordance with congressional practices. These articles 
also contend that a sharp censure coupled with a significant 
agreed-on fine would be an appropriate remedy. I will be 
pleased to expound on my views if the committee desires.
    Some argue that a censure resolution would injure the 
presidency by setting a precedent that would make censure 
commonplace. I have no doubt that censure resolutions, if 
judgment is not exercised and partisanship abounds, could be 
used unwisely to weaken the presidency. But how much more harm 
would be caused by impeaching a President for actions that, 
while deplorable, do not amount to great and dangerous offenses 
against the State or require his removal to protect the Nation?
    With all deference, Mr. Chairman, this is a time for 
statesmanship, wisdom and conscience, not partisan politics. In 
my judgment, a vote for impeachment along party lines would be 
a horrendous result from which the presidency and the Nation 
would suffer for years to come. The goal should be to end this 
matter now in a nonpartisan fashion that appropriately 
sanctions the President and allows the government and the 
Nation to return to the other pressing problems we face.
    Thank you for your attention.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3320.056
    
    [GRAPHIC] [TIFF OMITTED] T3320.057
    
    [GRAPHIC] [TIFF OMITTED] T3320.054
    
    [GRAPHIC] [TIFF OMITTED] T3320.058
    
    [GRAPHIC] [TIFF OMITTED] T3320.059
    
    [GRAPHIC] [TIFF OMITTED] T3320.060
    
    [GRAPHIC] [TIFF OMITTED] T3320.061
    
    [GRAPHIC] [TIFF OMITTED] T3320.062
    
    [GRAPHIC] [TIFF OMITTED] T3320.063
    
    [GRAPHIC] [TIFF OMITTED] T3320.064
    
    [GRAPHIC] [TIFF OMITTED] T3320.065
    
    [GRAPHIC] [TIFF OMITTED] T3320.066
    
    [GRAPHIC] [TIFF OMITTED] T3320.067
    
    Chairman Hyde. Thank you, Mr. Hamilton.
    The gentleman from Wisconsin, Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    First of all, let me express my concern that the White 
House really does not want to work with this committee to 
resolve this matter in the manner in which you have just 
described. I was in the back room having a couple of slices of 
pizza before coming out here for the questions and answers, and 
on CNN as we speak, Wolf Blitzer and Greta Van Susteren are 
talking about the 184-page response that Mr. Craig said was 
coming up to the committee. They have read it, they have been 
able to dissect it, they have been able to analyze it, and we 
have never gotten it. And it seems to me, when I was practicing 
law way back when, that you always gave counsel on the opposing 
side a copy of your pleadings before releasing it to the press. 
Isn't that standard law practice?
    Mr. Hamilton. Well, I think it depends on who your opponent 
is. But I understand, Congressman--I think--I understand, 
Congressman, that you will receive that brief in the near 
future.
    Mr. Sensenbrenner. Well, both of you have criticized Mr. 
Starr for leaking things prematurely, so that the White House 
and members of the committee and the American public have 
learned things before they really were supposed to. Now, aren't 
you, Mr. Hamilton, saying that there are different strokes for 
different folks here?
    Mr. Hamilton. Well, I believe it was Mr. Ben-Veniste who 
criticized Mr. Starr in his opening statement for leaking, 
Congressman. Maybe I will let him speak to that.
    Mr. Ben-Veniste. Let me say this, Mr. Congressman.
    Mr. Sensenbrenner. Will you please turn the mike on, Mr. 
Ben-Veniste?
    Mr. Ben-Veniste. Yes, sir. Let me say this. It is not my 
practice, and nor would I have provided copies of that material 
to anyone else prior to its designated recipient. I don't think 
that is the appropriate way to do it.
    Mr. Sensenbrenner. So you are saying that the practice of 
the White House in releasing it, at least to CNN, before 
sending it up here so that members of the committee could have 
it, is inappropriate?
    Mr. Ben-Veniste. If that is what happened, it is not the 
way that I would have handled the matter. But to follow on to 
your question, the idea of leaking grand jury matters, I am 
sure you will agree, is by several steps much more dangerous 
and indeed illegal, and so we are really not talking about 
comparable events.
    Mr. Sensenbrenner. Mr. Ben-Veniste, last month when Judge 
Starr was here explaining the content of his referral, Mr. 
Kendall, who is one of the President's personal attorneys, was 
given an hour to cross-examine him. And one of the issues of 
cross-examination that Mr. Kendall raised was whether or not 
the Independent Counsel staff treated Monica Lewinsky unfairly 
at the time of the interview in the Ritz-Carlton Hotel about a 
week before all of us found out who Monica Lewinsky was.
    Apparently, that issue was litigated, and there was a 
sealed decision rendered months before Judge Starr's testimony 
that Judge Johnson reviewed the matter and determined that 
there had not been prosecutorial misconduct. I assume that Mr. 
Kendall, as the President's lawyer, was familiar with that 
sealed decision.
    Judge Starr did not refer to it. He didn't leak it. He 
didn't testify before the committee. What do you think the 
ethics are of bringing up a sealed decision that you know has 
occurred in an attempt to get the lawyer on the other side to 
try to admit the misconduct or unethically refer to a sealed 
decision?
    Mr. Ben-Veniste. Well, there are two things about that, and 
I have not read the decision. I don't know whether it has been 
released publicly or not.
    Mr. Sensenbrenner. It was in the newspaper. It was 
released.
    Mr. Ben-Veniste. I have not read it. But I understand that 
there were two aspects to it.
    One is whether the actual circumstances of her 
interrogation were unlawful, that is, whether she was free to 
go or not; and, secondly, whether it was appropriate for the 
prosecutors to attempt to plea bargain with her in the absence 
of her attorney whom they knew was representing her. And I 
think as to the latter question, that was, at least unethical 
and probably improper. So I think there is a distinction----
    Mr. Sensenbrenner. That was not my question. My question 
was whether it was ethical for Kendall to ask those questions.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Ben-Veniste. Does the Chairman wish me to answer the 
question?
    Mr. Conyers. I think I will just let Mr. Ben-Veniste 
quickly conclude his response to Mr. Sensenbrenner.
    Mr. Ben-Veniste. Well, I think the area of inquiry was 
quite appropriate. The confidence of the American public in 
whether an Independent Counsel has performed consistently with 
the public's expectations of fairness and independence is an 
appropriate area of inquiry. Unfortunately, in watching Mr. Kendall's 
examination, that exchange, it seemed to be a combination of cross-
examination and beat the clock. I have practiced trial law for 30 
years, and I have never had that kind of restriction placed on a cross-
examination. It is a very difficult, difficult obligation to undertake, 
Mr. Sensenbrenner.
    Mr. Conyers. Mr. Ben-Veniste and Mr. Hamilton, you are two 
of the most seasoned lawyers that we have in the area across 
the years and down through time. Let me just solicit your 
opinions on these two considerations.
    How has the Starr investigation harmed the present 
impeachment inquiry? Would an investigation that had not been 
tainted by possibly unfair and unethical tactics have brought 
us to a different result today? And how has this committee's 
process negatively impacted on the inquiry that we are charged 
to dispose of?
    Mr. Ben-Veniste. Well, let me take the latter question 
first.
    To the extent that there is the impression in the public's 
mind that this process has not been bipartisan or fair, where 
people haven't had an adequate opportunity to either express 
their views or explore the subject matter or inform the public, 
then I think we all suffer as a result of that. I don't know 
what happens in executive session, or whether there have been 
accommodations made, but simply in reading the newspapers there 
seems to be the impression that we are in some kind of a hurry-
up mode, and yet there is this disconnect in proportionality 
between the gravity of the offenses and the speed with which 
you are conducting these hearings, and I think the process does 
suffer in the public mind in that sense.
    Mr. Conyers. Mr. Hamilton.
    Mr. Hamilton. Mr. Conyers, let me just say that I think 
that one reason that the Watergate Committee, the Senate 
Watergate Committee was so successful is that Senator Erwin and 
Senator Baker worked together to--in a bipartisan fashion. That 
is not to say that there were not strong disagreements, but 
most of these were worked out behind the scene, and the 
committee worked together to get the information and, of 
course, produced a unanimous report. And I think, for that 
reason, its conclusions have stood the test of time.
    Mr. Conyers. Well, I certainly hope that somewhere in our 
congressional body among those two dozen Republicans that are, 
you know--I don't know what they are doing besides reading and 
praying and trying to find the fortitude to help forge this 
middle path so that we can all get to this exit door with some 
shred of dignity, rather than to just push this thing over the 
cliff where we know nothing will happen. I am hoping that 
somehow there will be some epiphany, if necessary, to help us 
get across this hump. I am hoping that your discussions with 
our colleagues tonight and the work we do in the next 48 hours 
will help something like that happen.
    Mr. Ben-Veniste. I join in that hope and----
    Mr. Conyers. Is that too optimistic?
    Mr. Ben-Veniste. Well, Father Drinan's prayer I think set 
an admirable tone, and I cast my ecumenical vote in that 
direction.
    Mr. Conyers. Thank you.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Florida, Mr. McCollum.
    Mr. McCollum. Thank you very much, Mr. Chairman.
    Good to see both of you here today.
    I have a couple of observations about today. It seems to me 
that in the President's defense through this day we have been 
proceeding through some fairly carefully crafted patterns. This 
panel principally seems to be designed to attack Mr. Starr. 
With all due respect, that is what I think you are doing, or 
have done, or attempted to do, which has been a tactic of the 
White House defense team for some time but diverts attention 
from the probative questions of whether the President did 
commit the felonies he has been charged with or whether or not 
indeed there is an impeachable offense.
    The previous panel spent a great deal of time in the 
question and answer period and some of their testimony trying 
to scare folks with the belief that if we impeach that we are 
going to have a long, protracted trial and the consequences of 
impeachment are going to be very dire for the Nation, when, in 
fact, based on what Mr. Craig said earlier this morning, with 
the admission of the White House counsel, the truthfulness is 
not questioned of what Betty Currie said or what Vernon Jordan 
said.
    With a record fairly complete, with no need to call up any 
witnesses, since we have a formal record collected for us which 
all of us can examine and have been, I would suggest the trial 
in the Senate could be very short, probably simply rendered, 
first of all, from the President's defense standpoint to a 
summary judgment request on the basis that these aren't 
impeachable offenses and then, if not, pretty much the facts 
are going to speak for themselves.
    Certainly the President could have chosen to call some of 
these folks as witnesses if he wanted them cross-examined. We 
didn't think it was necessary. I don't today think it is; and I 
guess. By not calling them, the President doesn't either, 
because the record is so complete on the facts. There just may 
be some hair-splitting differences.
    We will hear Mr. Ruff talk about more tomorrow on those 
facts and then, of course, the claim that this isn't 
impeachable in some way.
    I would submit that the consequences of this, if indeed the 
facts do bear us out, and I think they do, that the President 
lied under oath a number of times, committed perjury in the 
case involving Paula Jones multiple times, committed perjury 
before the grand jury, which Professor Dershowitz said, if 
indeed he believed it were true, though he doesn't, and I think 
the facts show it is true, would be an impeachable offense for 
which the President he said should be impeached. If that is the 
case, committed the crimes of obstruction of justice regarding 
the matters of the affidavit and the gifts and maybe what he 
said to Betty Currie, all of these things or even a substantial 
number of them or even if it is only the grand jury perjury, as 
Professor Dershowitz points out, are true, and we believe that, 
then our failure to impeach the President would be a terribly 
dire consequence for the Nation.
    In fact, to suggest that these don't rise to the level of 
impeachable offenses begs a great question. The Constitution 
says, treason, bribery and other high crimes and misdemeanors. 
Bribing a witness and perjury are one and the same thing, 
essentially. They are treated the same way by the Sentencing 
Commission.
    Interestingly enough, the Sentencing Commission has exactly 
the same level of punishment recommended for both ofthem. 
Perjury and bribery of a witness go to the basic premise that if a 
party to a lawsuit cannot get the truth on the record, if somebody lies 
or encourages somebody else to lie or somebody, as a witness, hides the 
evidence or encourages somebody else to hide the evidence, a party in a 
lawsuit cannot get justice, they cannot get a judgment rendered by a 
court that is fair and just to them, which is the traditional American 
way. So it is considered very grave.
    And if bribery and bribing a witness is part of the bribery 
laws of this Nation, if bribery is specifically named in the 
Constitution as an impeachable offense, it seems to me, so is 
perjury. And the consequence of not going forward with perjury 
in these cases would be grave. Because, in that case, we are 
undermining the integrity of the court system. We are going to 
encourage more people, it seems to me, to commit perjury in the 
future or to witness tamper or whatever.
    We are likely to find fewer cases where Federal judges will 
be impeached for perjury. People will be treated differently 
than the President. One hundred and fifteen people are already 
in prison today for perjury in the Federal system. If this 
President committed it, we have a double standard.
    I think the consequences of not doing it are 
extraordinarily dire, and I am disappointed that the 
President's defense has not come forward with a more 
substantive process with regard to the facts. Now that may 
happen tomorrow. It has not happened today. I am looking 
forward to tomorrow, because I want to engage that, since I 
happen to believe, based on what I have seen, it is going to be 
a heavy burden to prove that the facts are not right, that are 
in every bit of the evidence that we have before us that indeed 
the President committed the perjury numerous times, that he 
committed obstruction of justice and so forth.
    So I will look forward to tomorrow. I don't think today was 
very constructive.
    Thank you, Mr. Chairman.
    Mr. Ben-Veniste. I take it there was no question in that?
    Mr. McCollum. There was no question, just an observation.
    Mr. Ben-Veniste. Because I do disagree most respectfully 
with many of the things you have said.
    Mr. Gekas. Regular order, Mr. Chairman.
    Chairman Hyde. I am sorry. I was talking to Mr. Conyers. 
That does happen now and then.
    Mr. McCollum. My time expired. I yielded back.
    Chairman Hyde. It has expired.
    Mr. McCollum. I have no question.
    Chairman Hyde. Mr. Frank.
    Mr. Frank. I want to begin with just an observation. 
Because one of the things we have been talking about has to do 
with censure, and I am convinced that we should have censure as 
an option. I believe that it represents a majority.
    But I am struck by two arguments against it. And just as it 
seems to me two of the articles of grand jury perjury are 
articles in the alternative, that is, they contradict each 
other, the second and third accusations. The major arguments 
against censure are being made in the alternative, and I 
thought I would just ask my colleagues to pick one or the 
other. Because I do think when we get to the floor we can't act 
like lawyers anymore and argue two inconsistent things in the 
hope that one of them will stick.
    One argument against censure is that it is meaningless, 
that it is trivial, that it is a slap on the wrist, that it 
does not sufficiently injure the President and, therefore, is 
not suitable punishment. The other is that censure, once we 
begin it, will be so frequently resorted to that it will 
cripple the presidency. Now, it is a pretty fragile president 
who could be crippled by a slap on his wrist or it would be a 
pretty hefty slapper.
    The arguments, one, that censure is wrong because it is too 
little a punishment, directly contradicts the notion that 
censure is wrong because it would be too heavy a punishment. I 
would be perfectly--I don't hold my colleagues to too high a 
standard; one consistent argument will do. But two inconsistent 
ones it seems to me ought to be dropped, and you ought not to 
be arguing that censure is both too much of a punishment and 
would, once resorted to, become interference with the 
presidency and also too little of one.
    Now, let me turn to our witnesses here, because I do 
believe that the assertion that there was grand jury perjury is 
simply not true; and, with regard to the deposition, it does 
seem to be clear that the President lied in one case. I do not 
believe that the President did not remember whether or not he 
and Monica Lewinsky had been alone. The question there, though, 
does go to materiality, and I will be interested tomorrow in 
particular to talk about materiality.
    But let me ask on the obstruction of justice from your 
standpoint as criminal attorneys, people who have tried and 
prosecuted and defended. One of the arguments is, my colleague 
from Florida just said, a witness being asked to lie, that that 
is high bribery, and I assume one of the accusations is that 
the President bribed, in effect, Monica Lewinsky, that by offer 
of a job and by other inducements the President got Monica 
Lewinsky to lie.
    Let me ask both of you, if you were prosecuting attorneys 
and you contemplated bringing such a case and you found that, 
in a volunteered bit of testimony to the grand jury, the person 
who was presumably bribed not to tell the truth said, by the 
way, no one asked me to lie, and no one promised me a job for 
my silence, would that affect your decision to prosecute that 
case? And do you think a case in which the alleged subject, 
recipient of the bribe, volunteered that she had not been made 
any promise or asked, would that be a problem? And, 
secondarily, as a matter of lawyer's tactics, if you were the 
prosecutor, why would you never have asked her this?
    Because Monica Lewinsky volunteered. At no point did the 
prosecutor ask her. So one reason you couldn't cross-examine 
her on the question about whether she was bribed is that she 
was never examined on that subject. The prosecutors quite 
scrupulously avoided asking her. So how would that affect your 
decision to bring the case? And if you were the prosecutor 
trying to bring such a case, would you have asked her, Mr. Ben-
Veniste?
    Mr. Ben-Veniste. Well, certainly in my experience bringing 
that kind of a case would have some kind of scatological 
barnyard expletive attached to it. It is just not a case any 
Federal prosecutor would bring, in my experience.
    On the other hand, because now we are talking about 
impeachment, the notion that the Founders gave consideration to 
the proposition that the President of the United States of this 
new republic might be on the ``give'' rather than on the 
``take'' is certainly beyond comprehension. The specification 
of bribery and treason meant that the President should be loyal 
to the United States, that he should not commit treason, he 
should not accept bribes, he should not accept emoluments that 
were not appropriate to his office, he should conduct himself 
in an honest way in the affairs of state. That is what that was 
all about. In my opinion, the idea that the facts concerning 
efforts to help Ms. Lewinsky find a job have absolutely no 
connection to reality in terms of impeachment.
    Chairman Hyde. The gentleman from Pennsylvania, Mr.----
    Mr. Conyers. Mr. Chairman?
    Chairman Hyde. Oh, I am sorry. I recognize the gentleman 
from Michigan.
    Mr. Conyers. I ask unanimous consent to have printed 
overnight the submission by the counsel of the President to the 
Committee on the Judiciary of the United States, this document 
that just has been delivered to yourself and myself.
    Chairman Hyde. Without objection, so ordered.
    Mr. Conyers. I further ask unanimous consent to have 
printed with Professor Dershowitz' testimony a letter that he 
has sent to me.
    Chairman Hyde. That would be in the previous record.
    Mr. Conyers. Exactly.
    Chairman Hyde. Yes. Without objection, so ordered.
    Mr. Conyers. Thank you.
    Chairman Hyde. The gentleman from Pennsylvania, Mr. Gekas.
    Mr. Gekas. I thank the Chair.
    Mr. Hastings, I think--no, Mr. Hamilton it is, yes. Deja 
vu. You and I have the makings of a deal, I think. I have felt 
from the very first moment that we received the referral from 
Judge Starr that there were serious problems with his assertion 
that the assertion of executive privilege by the President, by 
itself, would constitute an abuse of power, and I am still 
delving into that mess in the formulation of my position, my 
final position. But while I am tending to give you that, it 
seems to me you have given me, and we have the makings of a 
deal, great concern about the President's alleged lying under 
oath. You exhibit a troubled mind as to that category of what 
we are considering in this case.
    Do you believe that given the fact that if perjury or lying 
under oath was committed by the President in the Jones case, 
that it had the intended result of destroying the case of a 
fellow American citizen who lawfully, as decreed by the Supreme 
Court, had the chance to sue the President of the United 
States, with which decision, by the way, I disagreed, I still 
rue that decision by the Supreme Court. Don't you believe that 
this rises beyond the level of something as oh, it is just 
perjury and it is just about sex, and it doesn't matter? Aren't 
you willing to yield to me that that is serious enough for this 
panel to apply its conscience and its collective judgment in 
determining whether or not it is an impeachable offense?
    Mr. Hamilton. Well, I certainly think the panel should 
apply its judgment and its conscience in determining whether it 
is an impeachable offense. My position is that assuming that he 
lied in the Jones deposition or the grand jury, I think that 
you can look at that conduct and still say, it is not 
impeachable, because it is not a great and dangerous offense 
against the State. Sure----
    Mr. Gekas. We don't have a deal.
    Mr. Hamilton. I am sorry to hear that.
    Mr. Gekas. Mr. Ben-Veniste, I want to congratulate you on 
the most artful bill of particulars ever drawn up against a 
nonparty to the investigation. Your bill of particulars against 
Ken Starr is wonderful. It is masterful. You have an article 
here about the perfect President in which you criticize Starr; 
you have another one, the case against Ken Starr. Marvelous 
language and articulation of the case against Ken Starr.
    This prompts me to invite you to be the first witness that 
I am going to have in next spring on the question of the 
reauthorization of Independent Counsel, which you seem to feel 
is of no value, at least the Independent Counsel statute. Just 
a moment, I will let you get to it.
    The thing that bothers me is I didn't see any articles 
during the Lawrence Walsh reign of his incumbency as 
Independent Counsel. Did you have any such articles that you 
wish to submit to the committee about the Walsh conduct of 
Independent Counsel?
    Mr. Ben-Veniste. I did not. The Walsh----
    Mr. Gekas. Any other Independent Counsel? Of any other 
Independent Counsel appointed in the past?
    Mr. Ben-Veniste. Oh, yes, sir. I actually defended an 
individual in a case brought by Independent Counsel McKay. I am 
glad you gave me the opportunity to talk about it.
    Mr. Gekas. Did you write an article about him?
    Mr. Ben-Veniste. No, but I got a jury acquittal in that 
case, which is better than an article. It would not have been 
appropriate for me to write an article while I was representing 
the client. But let me say this, in all seriousness, and I will 
accept your invitation to come and talk about the Independent 
Counsel statute, because I feel strongly about the importance 
of the individuals who hold that office, and I think there is a 
bifurcation here between the statute and the expectations on an 
individual who holds the office that that statute creates.
    Mr. Walsh's investigation, in my view, went on too long; 
there were a lot of defects with it. However, the subject 
matter, the res, if you will, of that investigation was 
momentous, it was important.
    Mr. Gekas. But you did not file any documents or----
    Mr. Sensenbrenner [presiding]. The gentleman's time has 
expired.
    The gentleman from California, Mr. Berman.
    Mr. Berman. Thank you, Mr. Chairman.
    Mr. Hamilton, and Mr. Ben-Veniste, I would like you, for 
the purposes of your answers, to make two assumptions. First, 
the President lied under oath. Second, as to his grand jury 
testimony, those lies were not to cover up a consensual sexual 
relationship, but to avoid conceding that he had testified 
untruthfully in the civil deposition.
    The question is, to deal with the contention that this 
conduct justifies impeachment because coming from the 
President, it is so corrosive of the judicial system and it so 
erodes the rule of law.
    Mr. Hamilton. Congressman Berman, clearly, lying under oath 
before a grand jury or in a deposition is reprehensible. I 
think the question is, does that rise in this circumstance 
where the lying is about private consensual sexual conduct, 
whether it rises to the level of an impeachable offense. Is it 
a great and dangerous offense against the State that indicates 
it would be a danger to leave the President in office.
    My conclusion is that it is not.
    Now, I will go on and say, as I have said both orally and 
in writing on several occasions, that I think this conduct 
demands a sharp censure, and indeed something more than 
censure. I think that the President should agree to some type 
of monetary penalty to emphasize the seriousness of his 
conduct. I also think that there obviously will be a 
possibility after the President leaves office that if some 
prosecutor really deems that this is a case that he could win, 
that he could be prosecuted for it.
    Mr. Ben-Veniste. Clearly, Mr. Berman, the President's 
conduct was not, we can all agree, lying about disloyalty, 
treason, matters of national security, bribery, or other things 
which are characterized as high crimes and misdemeanors.
    Now, clearly, Mr. Clinton attempted to obfuscate in his 
civil deposition something which his adversaries already knew; 
that is, that he had had an inappropriate physical relationship 
with a young intern.
    The question is, whether even in that context, the vice of 
perjury was accomplished. Did the President's conduct somehow 
skew the result in that case? Not even there, I think, did it 
have that effect.
    Mr. Berman. I think in a way both of you are missing the 
point I was hoping to hear you speak to, which is, the 
contention by some that lying under oath by the President--
assuming that's what he did--rises to the level of impeachment 
because they are so corrosive of the judicial process.
    Mr. Ben-Veniste. It is clearly under any circumstances 
something which is deplorable. However, what we are dealing 
with is the impeachment of the President of the United States, 
this most monumental, momentous task, that this committee can 
consider. And under that standard, the idea that no man is 
above the law has to do with whether a prosecutor could 
prosecute the President, as the Constitution provides, after he 
leaves office, but it has nothing to do with the application of 
the standard of high crimes and misdemeanors, in my view, and 
therefore does not warrant impeachment of the President.
    Mr. Sensenbrenner. The gentleman from North Carolina, Mr. 
Coble.
    Mr. Coble. I thank the Chairman.
    Today, ladies and gentlemen, I have seen evidence of 
wringing of hands and intense anxiety expressed because of the 
lack of bipartisanship on the Judiciary Committee, and the 
implications seem to place most of that blame on the Republican 
corner of this room. I think no blame at all needs to be 
afforded to that corner or this corner. If we search our 
consciences and vote our sound judgments for or against 
impeachment, I don't know that any blame needs to be a allotted 
or attributed. Sure, it would be fine if we could do it in a 
bipartisan fashion, but the nature of this beast oftentimes 
avoids that.
    Let me talk to you gentlemen about perjury. Some say that 
lying about sex to a grand jury is not sufficient to warrant 
impeachment. I guess for the sake of argument, let's assume 
that perjury is a crime that raises itself to the threshold of 
impeachment. If that is in fact true, which I believe it is, I 
think the subject about which one is lying is immaterial, 
because I don't think there are exceptions to the perjury 
statute.
    Now, having said that, let me ask you all this: how about 
one who lies to a grand jury about his obstruction of justice, 
or his concealing evidence, or encouraging the filing of a 
false affidavit, or perhaps coaching a witness? If it has in 
fact been done, do you all believe that that would constitute 
crimes that raise themselves to the threshold of impeachment?
    Mr. Ben-Veniste. If, in fact, the obstruction of justice 
and the perjury had to do with the kind of weighty subject 
matter about which the impeachment clause was created, that is 
treason or bribery, or some like offense, then I would agree, 
as I did in the case of Richard Nixon, that this would, in 
fact, constitute----
    Mr. Coble. My time is about to run out. Let me hear from 
Mr. Hamilton on this as well.
    Mr. Hamilton. Again, I think the question is whether the 
lying amounts to a great and dangerous offense, so that it is 
dangerous to allow the President to remain in office. That is a 
judgment you have to make with every specific factual situation 
that you are confronted with.
    Mr. Coble. I thank the gentlemen.
    Mr. Chairman, with your permission, I am going to yield the 
balance of my time to the gentleman from Florida, Mr. Canady.
    Mr. Canady. I thank the gentleman. I just want to make a 
couple of points.
    I want to thank both of you for being here today. You are 
both very distinguished lawyers and we appreciate you taking 
your time to be here. I have to candidly say, I don't think 
your testimony has added much to our deliberations, however. I 
am disappointed that we see the continued attacks on the 
Independent Counsel, and it is interesting that I still have 
not heard any claim of misconduct by the Independent Counsel 
which undermines the credibility or the reliability of the 
evidence, the sworn testimony that is before us. It is not 
there. And so I find--if we had something like that, then that 
would be relevant for us to consider, but----
    Mr. Ben-Veniste. I could give you something to think about.
    Mr. Canady. But to generalize charges of misconduct by the 
Independent Counsel I think are just an attempt to divert 
attention once more from the facts of this case. And it has 
been very disappointing today that we have had so little 
discussion of the actual facts of the case against the 
President. There has been some discussion of that, and I think 
that is good. But there has been very little of that, and I am 
hopeful that tomorrow we are going to see a change of focus and 
deal with these facts. And as I am going to discuss a little 
more in a minute, I think the facts are very troubling. And 
they are facts that we have to come to terms with.
    Is this case equivalent to Watergate? My answer to that is 
no. But that doesn't resolve the matter for us. There are 
similarities I would also say, but I don't think anyone would 
responsibly contend that President Nixon somehow established 
the threshold there for what is impeachable. That is not right. 
We have got to judge this President's conduct on the evidence 
that is before us and make a judgment under the standards of 
the Constitution.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Since the gentleman from Florida followed some 
of his colleagues' comments about making aspersions about your 
testimony and not permitting you to answer them, could you take 
about a minute to tell us about how Mr. Starr's misconduct may 
have affected conclusions about the President, and then let me 
ask my question.
    Mr. Ben-Veniste. Well, I think there are things that have 
not been fully investigated. I don't make the claim of 
misconduct, and in fact, The New York Times has its own way of 
putting a title on an editorial piece. That was not my title, 
that was The New York Times' title.
    Mr. Nadler. Do you think that Mr. Starr's misconduct, if 
misconduct it be, has any relevance to the factfindings?
    Mr. Ben-Veniste. I think to the extent that all inferences 
have been drawn in the referral received by this committee by 
Mr. Starr against the President, that there has been 
selectivity involved, that there has not been investigation of 
the activities of certain people who are responsible for 
starting----
    Mr. Nadler. It has been a one-sided investigation, in other 
words.
    Mr. Ben-Veniste. Well, there is more to look at than has 
been looked at.
    Mr. Nadler. Thank you. I have 2 quick questions and I will 
read them both so that you can answer them in the time 
remaining. I find somewhat startling the assertions made by 
some of our colleagues on the other side that the President's 
failure to call witnesses somehow proves his guilt.
    The gentleman from Florida, the other gentleman from 
Florida said a few moments ago that a Senate trial can be 
whisked along in a matter of days, that they don't need to call 
witnesses there, that everything is clear. I had assumed that 
the alleged lack of a need for calling fact witnesses to prove 
by the prosecution, if you will, here was because of the 
analogy to the grand jury where we could use the hearsay 
testimony of Mr. Starr that certainly would have to call 
witnesses in the Senate. Is there really no obligation on the 
part of the accusers of the President to bring forward 
witnesses or direct evidence? Is it proper to rely on the Starr 
report to establish the facts? Is the President really required 
to prove his innocence rather than have his accusers prove his 
guilt? That is my first question.
    My second question is for Mr. Ben-Veniste. My second 
question is, in your testimony you say that it is clear that 
Mr. Starr's purpose in forcing Mr. Clinton to testify was 
simply to provide additional fodder for an impeachment 
referral. What interest would a Federal grand jury have in 
investigating whether one consenting adult touched another 
consenting adult, whether the conduct first occurred in 
November or January, or how many gifts they exchanged. And 
further you say, that the 2 supposed grounds for obstruction of 
justice, Vernon Jordan's attempt to find a job for Monica 
Lewinsky in the talking points which formed a basis for the 
request of the Attorney General to extend the jurisdiction were 
both dead letters, and Mr. Starr knew that before he called 
President Clinton as a grand jury witness.
    Are you asserting here or do you think it proper to state 
that therefore Mr. Starr's calling of the President before the 
grand jury was simply a perjury trap, and that in fact there 
was no basis, and that this was improper, and that that in some 
way affects how we should regard this whole thing?
    Mr. Ben-Veniste. Well, let me say that it escapes me as to 
what the grand jury was properly investigating at that point.
    Mr. Nadler. And that makes any perjury, any alleged lying 
there, immaterial?
    Mr. Ben-Veniste. Well, it puts into some kind of context, 
Mr. Nadler, that the allegations of obstruction of justice and 
of perjury really do not have the kind of substance that one 
would find if something were actually obstructed, or somebody 
was actually harmed by a perjury, and I think it is in that 
context that you look at whether you get to the momentousness 
of conduct that would warrant impeachment.
    Mr. Nadler. So in other words, it is hard to have 
obstruction if there is nothing being obstructed.
    Mr. Ben-Veniste. I think so.
    Mr. Nadler. And it is hard to have perjury if it wasn't 
material to anything having to be proven.
    Mr. Ben-Veniste. I think so.
    Mr. Nadler. My other question is, please answer my first 
question about the lack of witnesses establishing guilt, both 
here and presumably, according to Mr. McCollum in the Senate, 
is it the President's job to prove his innocence rather than 
the other way around?
    Mr. Hamilton. Well, I would think, Congressman, that it is 
the job of this committee to convince itself that the President 
has engaged in impeachable conduct.
    Now, how the committee does that depends on the 
circumstances. It is true that neither the committee or so far 
the President has called any witnesses before this committee, 
and both sides are going on grand jury testimony. The majority 
seems to be relying basically upon Mr. Starr's analysis, and I 
think tomorrow the White House is going to give you their 
analysis of the grand jury record. But the bottom line is this 
committee has an obligation to do what is necessary to 
ascertain the facts that would support impeachment, or not 
support impeachment.
    Mr. Sensenbrenner. The gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Hamilton, let me read for you a longer quote by George 
Stephanopoulos, who is a former, as you know, senior advisor to 
President Clinton, and ask for you to respond.
    ``When President Clinton turned his personal flaws into a 
public matter, he made the whole country complicit in his cover 
story. This was no impulsive act of passion, it was a coldly 
calculated political decision. He spoke publicly from the 
Roosevelt Room''--that is in the White House--``he assembled 
his cabinet and staff and assured them that he was telling the 
truth and he sat back silently and watched his official 
spokespeople, employees of the U.S. Government, mislead the 
country again and again and again.''
    Mr. Hamilton, don't you think that the President's actions 
and statements were an effort to try to thwart the 
investigation that was then going on?
    Mr. Hamilton. Well, let me answer it this way. I am not 
sure I can put myself in the President's mind. I do think his 
conduct in this regard was disgraceful.
    Mr. Smith. Let's use the reasonable person standard. Don't 
you think a reasonable person, a reasonable American would 
listen to the President's statements, watch what he did, and 
conclude that he was making an effort to try to thwart the 
investigation that was then going on? Don't you agree with 
that?
    Mr. Hamilton. Well, Congressman, I am sure that he wanted 
the investigation to go away. I think there is no doubt about 
that. The question again, and if I sound like a----
    Mr. Smith. My question is pretty clear, and could you 
answer it for me?
    Mr. Hamilton. I think I did answer it. I think he clearly 
wanted the investigation to go away.
    Mr. Smith. Okay. That wasn't answering my question. Do you 
think that he was attempting to thwart the investigation that 
was then going on?
    Mr. Hamilton. Well, I am not sure there is a distinction 
there. I am sure he wanted the investigation to end.
    Mr. Smith. Was he actively trying to impede the 
investigation?
    Mr. Hamilton. He may have been trying to impede the 
investigation. I guess the question is----
    Mr. Smith. No, no, you----
    Mr. Hamilton. Well, let me finish, Congressman.
    Mr. Smith. I think you just answered my question. If you 
said he may have been trying to impede the question, you have 
answered it.
    Mr. Hamilton. The question is, was what he was doing 
improper or impeachable.
    Mr. Smith. Mr. Hamilton, don't rephrase my question. I 
think you have answered my question that he may have been 
trying to impede the investigation that was going on. That is 
all I was looking for. I would have to confess to you in part I 
was looking for that because that was Barbara Jordan's 
definition of an impeachable offense, and I think that that is 
the important point. Let me read, this is a little bit lighter 
subject, some letters to you from the 6th graders at Chisholm 
Middle School in Round Rock, Texas. They have a way of putting 
it very straightforwardly, even if it is not always 
grammatically correct. Here are three letters:
    ``If the President doesn't get impeached, it could be very 
dangerous because more people will start doing more crimes and 
say, quote, if the President can get away with it, I can.''
    Another one: ``Last year I studied the Constitution in 
social studies. One thing I learned was that the Constitution 
stated, `all men were created equally.' If we want an equal 
Nation we must make sure justice is served no matter how high 
on the branches of government.''
    And then lastly: ``If everybody lied under oath, our 
justice system would fall apart.''
    That is a very succinct version, I guess, of a categorical 
imperative along the lines of never engage in any action which 
if engaged in by everybody else would, in effect, lead to 
chaos. Would you not agree that if everybody engaged in 
deceptive or misleading or evasive statements or perhaps was 
not telling the whole truth, that could in fact undermine the 
entire judicial system. In effect, what is the point of having 
courthouses if people aren't going to tell the whole truth?
    Mr. Hamilton. Of course I agree with that.
    Mr. Smith. Thank you, Mr. Chairman. I yield back.
    Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. I would like to ask the 
witnesses, if you assume that the President has committed 
impeachable offenses and in fact should be removed from office 
my question is, what is a rational way to present the case? Mr. 
Ben-Veniste, did Mr. Jaworski testify to help make the case 
before Congress?
    Mr. Ben-Veniste. No, Mr. Jaworski was very careful to avoid 
any sort of advocacy in connection with transmitting evidence 
which we had obtained through the grand jury. We had obtained 
very damaging White House tape recordings and other grand jury 
testimony of witnesses which were transmitted without any sort 
of advocacy or pointing to what might be an impeachable 
offense. It was just the material. And Judge Sirica, who 
reviewed it, said that the grand jury had done its job in a 
fair way without making any comment or without arguing for any 
result in having done so.
    Mr. Scott. Are witnesses appropriate in this case to be 
called to make the case if you are not going to rely on the 
prosecutor?
    Mr. Ben-Veniste. One would think that if an impeachment 
article were voted out of this committee that the committee 
should hear from an individual who has firsthand knowledge of 
the conduct on which an impeachment is based.
    Mr. Scott. Should you rely on a presumption of guilt ifthe 
President doesn't prove his innocence?
    Mr. Ben-Veniste. Not in this country, sir.
    Mr. Scott. Should the specific allegations be made 
available to the President before he has to respond? We have 
heard just today that the gentleman from Arkansas notified the 
President that there are other allegations that he might want 
to bring forward. The gentleman from Florida mentioned bribery 
as a possibility. The expansion and contraction of the scope of 
the inquiry changes daily and hourly. What about the specific 
allegations being available before the President has to 
respond?
    Mr. Ben-Veniste. That is the normal way in which any sort 
of judicial or quasi-judicial proceeding is begun. The advocate 
for one side who is bringing the matter, in some kind of a 
document, either a complaint or other document, sets forth the 
basis and the substance of what it is he has claimed the other 
side has done wrong so that the other side can then answer. It 
is I think a very difficult process if one does not know with 
some specificity what the allegation is.
    Mr. Scott. Is the title of the offense--we hear a lot about 
perjury, obstruction of justice and other titles of offenses. 
Do you need more than the title of the offense in order to 
appropriately respond?
    Mr. Ben-Veniste. There is no question that you cannot 
respond to a claim of perjury unless you know what the false 
statement is and then you can address whether or not a case has 
been made out, or at least a prima facie case.
    Mr. Scott. Now, in terms of whether or not it is an 
impeachable offense, we have heard the title of the offense, 
perjury, being sometimes impeachable and sometimes not 
impeachable. How would you measure--would you measure the title 
or would you measure the effect it has had on the Nation? Mr. 
Hamilton, if you want to respond to that.
    Mr. Hamilton. I think you measure the effect it has on the 
Nation. You look at whether the offense is so great that it is 
dangerous to allow the President to remain in office.
    Mr. Scott. And the title of the offense is not the 
measurement but you would measure the effect. So whether it is 
obstruction of justice, or whatever the title is, is not the 
measurement but the effect it has as far as it is a grave 
danger to the Nation?
    Mr. Ben-Veniste. Even in the narrow confines of what we are 
discussing here, I have trouble understanding who was 
obstructed and how that person was obstructed by the conduct we 
are talking about.
    Mr. Sensenbrenner. The gentleman's time has expired. Before 
recognizing the gentleman from California, just to make sure 
that the documentation that has been submitted to the White 
House is all printed at once, the Chair would ask unanimous 
consent that the documentary appendix to the submission by 
counsel for President Clinton to the Committee on the Judiciary 
of the United States House of Representatives dated December 8, 
1988 also be printed overnight. Is there objection to that?
    Mr. Nadler. Mr. Chairman, I assume you meant December 8, 
1998?
    Mr. Sensenbrenner. I stand corrected. It is this document. 
Without objection so ordered. The gentleman from California Mr. 
Gallegly is recognized.
    Mr. Gallegly. Thank you very much, Mr. Chairman. Gentlemen, 
thank you for being here. It has been a long day. We started 
off a little over 8 hours ago. And for the past 8 hours we have 
been listening very attentively to the President's premier 
defense team. Mr. Craig started off the morning by advising us 
today we would be hearing to quote him ``very powerful, to 
quote him, evidence supporting the President.'' So far I have 
not heard any new evidence, much less powerful evidence, that 
refutes the fact that the President lied under oath. Mr. 
Hamilton, do you believe that our legal system is dependent on 
people telling the truth?
    Mr. Hamilton. Of course.
    Mr. Gallegly. Do you believe that perjury represents an 
attack on the integrity of our judicial system?
    Mr. Hamilton. Of course.
    Mr. Gallegly. This morning and this afternoon, we heard 
testimony from two witnesses for the President, one Mr. Craig 
and one Mr. Owens. Mr. Craig testified earlier that he believes 
the President did not lie under oath. This afternoon Mr. Owens 
stated that the President did lie under oath. He didn't say ``I 
believe.'' He says the President did lie under oath. Mr. 
Hamilton, do you believe the President lied under oath?
    Mr. Hamilton. I find the President's testimony very 
troublesome. It was clearly evasive and misleading. I 
understand that tomorrow Mr. Craig is going--Mr. Ruff is going 
to make an attempt to convince us all that it was not perjury.
    Mr. Gallegly. But at this particular point, in your heart, 
do you believe the President lied under oath?
    Mr. Hamilton. I find his testimony extremely troubling. I 
am going to withhold judgment until I hear what Mr. Ruff has to 
say tomorrow.
    Mr. Gallegly. Mr. Ben-Veniste, with a simple yes or no, do 
you believe the President lied under oath?
    Mr. Ben-Veniste. Are you talking about--what proceeding?
    Mr. Gallegly. Before the Federal grand jury.
    Mr. Ben-Veniste. Before the grand jury? I have trouble with 
that. I have trouble with the grand jury proceeding.
    Mr. Gallegly. Thank you very much, Mr. Ben-Veniste. You 
both are very capable lawyers and have a distinguished record. 
Mr. Hamilton, can you give me very clearly your definition of 
what it means to hold up your right hand and swear to tell the 
truth, the whole truth and nothing but the truth so help me 
God?
    Mr. Hamilton. It means what you say.
    Mr. Gallegly. It does not mean to deceive and does not mean 
to minimize the truth?
    Mr. Hamilton. Of course not.
    Mr. Gallegly. Thank you very much. Based on what youhave 
seen and heard, do you think that the President has been truly candid 
and totally honest with the American public, to date? To date. Mr. 
Hamilton.
    Mr. Hamilton. Do I think--you mean in the past, do I think 
today----
    Mr. Gallegly. I mean today in view of the months of 
presentations he has had, civil deposition, grand jury, the 
August 17 and the 81----
    Mr. Hamilton. He clearly has not been fully candid.
    Mr. Gallegly. Thank you very much. My colleagues, the 
President has had the choice of telling the truth, the whole 
truth and nothing but the truth not on one occasion but at 
least on four occasions to the American public. First his 
deposition, second his grand jury testimony, third during the 
address to the American people and fourth just a few days ago 
in answering 81 questions submitted by this committee. It is 
clear in each of these four instances that the President has 
been less than honest. I am disappointed that the President has 
not presented any exculpatory evidence relating to these facts. 
I anxiously await tomorrow's presentation. I hope the 
President's lawyers take seriously the need to rebut the 
allegations that the President has lied under oath and that he 
has lied to the American people, which I think compromises his 
oath of office.
    I yield back, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. Mr. Hamilton, Mr. Ben-
Veniste, if you assume everything that Mr. Gallegly just said, 
that the President was in fact less than honest, that he lied, 
has the President engaged in impeachable conduct in your 
opinion? Is it abuse of power?
    Mr. Hamilton. In my opinion, he has not engaged in 
impeachable conduct. He has engaged in reprehensible conduct. 
He has engaged in conduct for which I believe he should receive 
a sharp censure. Indeed I think he should agree to pay a 
substantial fine. But I don't think that he has engaged in 
conduct that demonstrates he is a danger to America.
    Mr. Watt. Mr. Ben-Veniste.
    Mr. Ben-Veniste. I agree that the subject matter here which 
we all know is about the President's unwillingness to ``fess 
up'' to an inappropriate relationship that he had with a young 
intern is the core of everything that we are talking about. It 
is the core of what he walked into when his deposition was 
taken. The Jones lawyers were armed with the information that 
Linda Tripp had surreptitiously tape recorded from Monica 
Lewinsky. So they knew they had something. The President didn't 
know they had it. And the President gave testimony as artfully 
as he could, I think, to try to evade answering questions about 
Ms. Lewinsky. He should not have done that. That is an 
understatement. The question is whether everything that springs 
from that, Mr. Starr criminalizing that conduct by opening an 
investigation which in my view no other Federal prosecutor in 
this country would go after, at least no one of any reputable 
stature in this country. And then to try to draw from that the 
concept of an obstruction of justice, putting him before the 
grand jury, asking questions about where he touched Ms. 
Lewinsky, where Ms. Lewinsky touched him, on what day of the 
week, in what place in the White House, in what month of the 
year. How in the world can we be discussing removing a twice 
elected President of the United States on the basis of this 
kind of conduct? That is the question that I raise and that is, 
I think, the issue of proportionality and common sense that the 
American public has grappled with and has come to some 
conclusion, I think, expressing their great common sense. As a 
trial lawyer, I see people from all walks of life in the 
courtroom, and I have great respect for their collective common 
sense.
    Mr. Watt. So I take it from that that notwithstanding what 
Mr. Gallegly said, you don't think this is impeachable?
    Mr. Ben-Veniste. That is correct, sir.
    Mr. Watt. When Mr. Starr came before this committee, he 
made some references to Mr. Jaworski and suggested that he 
thought Mr. Jaworski would approve of the way that Mr. Starr 
had conducted this investigation. Would you give us your 
assessment of that, Mr. Ben-Veniste?
    Mr. Ben-Veniste. Well, I had the opportunity to talk with 
Mr. Jaworski's grandson just the other day. Joe Jaworski, who 
practices law in Houston, Texas, told me he was rather appalled 
by the comparison. I worked with Mr. Jaworski and quite frankly 
I was quite skeptical when he came on board and took over for 
Archie Cox, because, after all, Richard Nixon was the one who 
picked Mr. Jaworski. He was a conservative Texan. He said he 
was going to follow Mr. Cox's mode of investigating, he would 
be beholden to no one, he would conduct an independent 
investigation, and we were all prepared to watch what he did 
more than what he was saying. And by all accounts, his activity 
in not leaking and conducting a fair and vigorous investigation 
but not taking any cheap shots at the President, giving the 
President the benefit of the doubt, provides the model, I 
think, for all high profile investigations that have come 
thereafter.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Florida, Mr. Canady.
    Mr. Canady. Thank you, Mr. Chairman.
    I wanted to go back to a point that I was making earlier. 
That is, that President Nixon's misdeeds do not somehow 
establish a threshold level of misconduct that must be met in 
order for there to be an impeachable offense. Do either of you 
disagree with that point?
    Mr. Ben-Veniste. I do not. God help us if we see that kind 
of conduct again.
    Mr. Canady. Mr. Hamilton?
    Mr. Hamilton. No, I don't disagree with that.
    Mr. Canady. Thank you.
    Let me go on to make some comments about what I think is at 
stake in the case that is before us.
    When we look at the facts concerning the President's 
conduct, what do we find? I believe, based on my reading of the 
evidence, that we find a pattern of calculated wrongdoing, a 
sustained course of criminal acts designed to thwart the due 
administration of justice. I know some people believe this is 
all trivial. But I believe that is what is going on.
    We see evidence that the President last December--it starts 
in December--lied under oath in answers to interrogatories. We 
see evidence that in January he lied under oath repeatedly in 
his deposition in the Jones case.
    And let me add that today we have heard the President's 
lawyer here before this committee affirm the obvious lie that 
the President told then when he said that he had no specific 
recollection of being alone with Ms. Lewinsky. Even Mr. Frank 
has recognized that that was a lie. But yet the President's 
counsel reaffirmed that lie before us today. And we find in the 
evidence that the President in August lied under oath before 
the grand jury to cover up and to avoid responsibility for his 
earlier lies.
    Mr. Ben-Veniste, I believe you stated that you have got a 
problem with what happened before the grand jury and the 
President's conduct.
    Mr. Ben-Veniste. I have a problem with characterizing it as 
an obstruction of justice. The President admitted to the grand 
jury.
    Mr. Canady. Mr. Ben-Veniste, I am sorry, you have made that 
point. I have got some questions.
    Mr. Ben-Veniste. I thought you were asking me about it.
    Mr. Canady. If I have some time left, I will be happy to 
recognize you.
    Then we find evidence along the way of various other acts 
in which the President attempted to corruptly influence the 
testimony of witnesses.
    And, finally, I believe that we have evidence that the 
President just last month lied under oath to this committee in 
answers that he gave to questions propounded to him by the 
chairman of the committee.
    Now, how do we respond to this? How do we respond to this 
substantial course of wrongdoing that was sustained over a 
period of a year?
    Now, it has been argued essentially that we should forget 
about it because the underlying cause of it was sordid. I don't 
believe that the sordidness of the underlying conduct is a 
mitigating circumstance. Indeed, it is not a defense against 
these allegations. I think that just doesn't make sense, that 
that is the claim that is being made, that is the primary 
claim, that we should see all of this go away, because the 
underlying conduct was sordid.
    This was not some trivial lapse of judgment. The President 
wasn't blindsided. He was calculating every step along the way.
    I believe that this is conduct that shows an utter contempt 
for the judicial process in this country, it is conduct that 
shows utter contempt for the dignity of the office of 
President, and it is conduct that, by its very nature, 
undermines the integrity of the office. It is conduct by the 
chief executive that harms our country and our Constitution by 
undermining respect for the law.
    Now, that is what we have before us, I believe; and let me 
end by quoting again the first Chief Justice of the United 
States, Justice Jay, who said, ``independent of the abominable 
insult which perjury offers to the divine being, there is no 
crime more extensively pernicious to society. It discolors and 
poisons the 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 the solemn obligations 
which----''
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Canady. If I could just read one sentence here, in the 
middle of a sentence, ``is given under the solemn obligations 
which an appeal to the God of truth imposes. And if oaths 
should cease to be held sacred, our dearest and most valuable 
rights would become insecure.''
    Mr. Sensenbrenner. The gentlewoman from California, Ms. 
Lofgren.
    Ms. Lofgren. Thank you, panelists, for being here today and 
for your enlightening testimony.
    Also, I just wanted to take a personal moment--I worked in 
a lowly position during the 1974 inquiry, and I would like to 
express my thanks to Mr. Ben-Veniste. You are someone who I 
looked up to and admired at that time for the service that you 
gave to our country then at a very difficult time.
    Mr. Ben-Veniste. Thank you.
    Ms. Lofgren. You did it skillfully and honorably.
    Since you are here and because you do have experience in 
the Justice Department, I want to ask you just a quick question 
before I get to my real question. When Mr. Starr was before the 
committee, I asked him three questions, two of which had to do 
with when he found out certain information and the third about 
whether he would release reporters from their confidentiality 
bond. I recently received a letter from Mr. Bitman saying that 
Mr. Starr wouldn't answer any of the questions that were posed 
and sent to him because of Justice Department policies. Can you 
think of any Justice Department policy that would prevent Mr. 
Starr from answering the three questions I posed to him, that 
he said he would answer?
    Mr. Ben-Veniste. No. Indeed, I would think that Justice 
Department policies would compel an answer, particularly to an 
oversight committee----
    Ms. Lofgren. Thank you for that.
    Mr. Ben-Veniste [continuing]. Investigating whether the 
Starr investigation was somehow skewed, and whether there wasan 
attempt to create an unwarranted appearance of obstruction of justice. 
I don't say that that occurred, but I think there is an obligation to 
look at that.
    Ms. Lofgren. Nor do I. I just wanted an answer.
    Let me follow up on something that you mentioned in answer 
to Mr. Nadler's questions earlier. You mentioned that there 
were other things that perhaps should maybe have been looked at 
by the Independent Counsel, other witnesses that might have 
been called. You are familiar with the Independent Counsel's 
investigation, and you have a lot of experience as a prosecutor 
and an investigator. Do you think there were areas that merited 
further investigation by his office? Were there witnesses who 
were not called to testify before the grand jury who should 
have been called, who might have given a greater picture of the 
truth? Do you have any advice for us on that?
    Mr. Ben-Veniste. There was one anomaly that I found in 
looking through the volumes of material that Mr. Starr produced 
to this committee, and that was the fact that the individual 
who, by Ms. Tripp's admission and by that person's own 
admission, put Ms. Tripp up to tape recording was never put 
before the grand jury. That person is Luciane Goldberg.
    If you look in the appendix that Mr. Starr submitted, at 
page 1225 on there is an FBI 302 report that shows that on 
January 22, 1998 Ms. Goldberg was served with a grand jury 
subpoena duces tecum to appear, testify and bring evidence to 
the grand jury. And yet there is no indication anywhere that I 
have seen that Ms. Goldberg was, in fact, compelled to go 
before the grand jury. And, as we know, this grand jury was 
fully capable of asking its own questions.
    And so there is no answer in the Starr referral to 
questions about what Ms. Goldberg did with information, the 
tapes that she had in her possession, the information she was 
getting on a daily basis from Ms. Tripp and, perhaps more 
importantly, whether Ms. Goldberg or others were guiding Ms. 
Tripp in some way. None of those questions or answers are 
before us in any record because, as far as we know, Ms. 
Goldberg was never put before the grand jury.
    At page 1227 of the Starr supplemental appendix there is an 
FBI 302 report that shows that 7 months after she received the 
grand jury subpoena, Ms. Goldberg was interviewed by an FBI 
agent working with Mr. Starr. That report raises some very 
interesting questions. I have not heard those questions 
discussed in this committee. Maybe it has been done in 
executive session or maybe you have received information that I 
have not heard about, but it seems to me----
    Ms. Lofgren. We can't say what we do in executive session, 
but we can say what we don't do in executive session. That is 
something we have not done in executive session.
    You have provided us with some newspaper articles, and in 
the New York Times article you mentioned with the headline that 
you didn't write about Mr. Starr, you mentioned the ``unseen 
hand'' possibility. Understanding that we have a high standard 
for offenses against the State, what would the ``unseen hand'' 
mentioned in the article have to do with any of what has been 
brought to us?
    Mr. Ben-Veniste. Mr. Sensenbrenner, if I may answer.
    Mr. Sensenbrenner. A sentence or two. The gentlewoman's 
time has expired.
    Mr. Ben-Veniste. Surely. I think when you are considering 
something like removing the President of the United States you 
ought to know whether somebody has created something and put it 
in motion to take him down. Public confidence in the process 
demands an answer to that question, and I think it is the 
obligation of this committee to investigate that possibility. I 
am surprised to hear, frankly, that Mr. Starr had not responded 
to the follow-up questions in that area. I don't know what the 
committee's procedure is for enforcing that.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    The gentleman from South Carolina, Mr. Inglis.
    Mr. Inglis. Thank you, Mr. Chairman.
    Mr. Craig is out of the room as far as I can see, but this 
third panel, I want to keep score here. Again, no criticism of 
these two witnesses. They were invited here by Mr. Craig to 
testify. But this is now zero for three in terms of anybody who 
can present any facts related to this case. No facts being 
presented here, no evidence.
    And I would remind committee members of what Mr. Craig told 
us this morning: ``Let me assure the members of this committee 
and the Members of the House of Representatives and the 
American public of one thing. In the course of our presentation 
today and tomorrow, we will address the factual and evidentiary 
issues directly.'' Not yet. Zero for three. Three panels, no 
facts, no evidence.
    Mr. Nadler. Point of parliamentary inquiry.
    Mr. Sensenbrenner. The gentleman from South Carolina has 
the floor, and interruptions are only allowed when the holder 
of the floor yields. Does the gentleman yield?
    Mr. Inglis. I don't have time to yield. I am terribly 
sorry.
    Mr. Sensenbrenner. The gentleman will proceed.
    Mr. Inglis. Mr. Hamilton, on an issue, though, that I think 
you can testify here about, you are an officer of the court, a 
lawyer, is that correct?
    Mr. Hamilton. Yes.
    Mr. Inglis. If you have a client on the stand who commits 
perjury to your knowledge, what do the cannons of ethics 
require you to do in that case?
    Mr. Hamilton. The District of Columbia cannons are a little 
bit different than the ABA model rules. Basically, a lawyer is 
supposed to tell his client that he should correct his 
testimony. If the client doesn't do that, the lawyer withdraws 
from the case.
    Mr. Inglis. In that case, isn't it clear that what is 
happening there is that perjury is such, as Mr. Canady was just 
exploring, such a pernicious thing that it trumps the client's 
right to rely on counsel because in that case the lawyer must 
disclose this to the client and in many jurisdictions disclose 
to the court as well, correct?
    Mr. Hamilton. In some jurisdictions, yes.
    To answer your question, the lawyer's obligation as an 
officer of the court in that circumstance supersedes his 
obligation to his client.
    Mr. Inglis. The only point I would make to everyone 
listening here in the committee is that, for those of us who 
are officers of the court, it shows how crucial this matter of 
telling the truth in court is, that it trumps the attorney-
client privilege.
    Mr. Ben-Veniste, I understand----
    Mr. Hamilton. It doesn't trump the privilege. The lawyer 
still has no obligation to reveal his client's perjury. But he 
does have an obligation to take some steps to disengage.
    Mr. Inglis. I understand.
    Mr. Ben-Veniste. And obviously this only occurs when the 
lawyer has actual knowledge that his client has lied.
    Mr. Inglis. Let me ask you a different question that has to 
do with something else.
    I understand that there is a regular conference call from 
the White House that deals with communications efforts of the 
White House. Is that true, to your knowledge, that there is 
some regular conference call, if I understand it, at 11 o'clock 
possibly on every day of the week? Is that about right, to your 
knowledge?
    Mr. Ben-Veniste. I have participated on an irregular basis 
in what may be a more regular conference call.
    Mr. Inglis. So you participated in this call?
    Mr. Ben-Veniste. From time to time.
    Mr. Inglis. So then----
    Mr. Ben-Veniste. In recent weeks.
    Mr. Inglis. The evidence you can give here--actually, we 
have found something that you can testify about in terms of 
facts and evidence----
    Mr. Ben-Veniste. There is a lot I can testify about.
    Mr. Inglis [continuing]. Would be the effectiveness of the 
spin machine at the White House, which is interesting. Have you 
participated in calls that sort of coordinated the attack on 
Ken Starr, I wonder?
    Mr. Ben-Veniste. No, there are no such calls----
    Mr. Inglis. No calls----
    Mr. Ben-Veniste [continuing]. To my knowledge.
    Mr. Inglis [continuing]. Involving Ken Starr?
    Mr. Ben-Veniste. Coordinating some attack on Ken Starr?
    Mr. Inglis. Excuse me?
    Mr. Ben-Veniste. No, sir, I am unfamiliar with a call 
coordinating an attack on Ken Starr.
    Mr. Inglis. So you haven't participated in any such calls?
    Mr. Ben-Veniste. No, sir.
    Mr. Inglis. Well, it is an interesting fact that you could 
testify about. If we had more time maybe we could develop what 
is discussed on those calls, because it is a masterful 
operation. Those are facts that you could testify about, and I 
wish that Mr. Craig had let us know that ahead of time so that 
we could ask you about the facts that you could actually 
testify about.
    Because neither of you--not any criticism of you, but 
neither of you can testify about the facts in this case; and, 
unfortunately, Mr. Chairman, once again zero for three. The 
third panel, no facts.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. Mr. Chairman?
    Mr. Sensenbrenner. For what purpose does the gentleman from 
New York----
    Mr. Nadler. A point of parliamentary inquiry.
    Mr. Sensenbrenner. State your inquiry.
    Mr. Nadler. My inquiry is that the gentleman from South 
Carolina just again stated that there has been no factual 
submission, implied that Mr. Craig, who said that there would 
be a factual submission today----
    Mr. Buyer. Regular order, Mr. Chairman. That is not a 
parliamentary inquiry.
    Mr. Nadler. My inquiry is----
    Mr. Sensenbrenner. State your inquiry.
    Mr. Nadler. My inquiry is, was that side of the aisle not 
served with this material or was the gentleman being dishonest 
and misleading the television viewers by implying that there 
was no such submission made?
    Mr. Sensenbrenner. That is not a proper parliamentary 
inquiry; and the gentlewoman from Texas, Ms. Jackson Lee, is 
recognized.
    Ms. Jackson Lee. Let me thank both of the members of the 
panel for their presence and acknowledge as well their 
astuteness as lawyers and having a special insight into the 
proceedings we know as Watergate.
    Mr. Ben-Veniste, let me thank you as well for your kind 
words about Leon Jaworski, who I had the honor and pleasure of 
working for and know full well the somberness and the high 
position he held his role and responsibility in Watergate.
    A simple question to you before I begin. Did Mr. Jaworski 
ever leave his position as a prosecutorial implementator and 
move to the witness chair and become a fact witness?
    Mr. Ben-Veniste. No, he did not.
    Ms. Jackson Lee. To your knowledge?
    Mr. Ben-Veniste. No, of course not.
    Ms. Jackson Lee. Let me then proceed with words from Daniel 
Webster known as the March 7 speech in 1850 right before the 
long and elongated discussions about slavery and the potential 
Civil War in this Nation. He said simply, ``I wish to speak 
today not as a Massachusetts man, not as a northern man but as 
an American and a Member of the Senate of the United States. I 
speak today for the preservation of the union. Hear my cause.''
    We come now almost to the end of this process, and I would 
like to thank Chairman Hyde, who is not in the room right now, 
for his kindness in the running of today's proceedings. I have 
a running objection on the time and the inability of many 
witnesses to answer questions, but I thank him for the way he 
has offered to those of us who disagree to answer or to ask our 
questions.
    It is at this time that I call upon him as well for a 
matter of good faith and to heal this country. We should have 
any opportunity to present, as I have supported over the past 
couple of weeks, a censure resolution to heal this country and 
to address these circumstances. What troubles me is the 
precedent that is being set today or over these past few 
hearings that we have had, one in undermining the institution 
of the presidency and how this is played to the American 
people. And the exaggeration of the gravity of these 
allegations such that children in American schoolhouses are 
believing that those who may tell untruths will go unpunished.
    And so I have some questions both for Mr. Hamilton in his 
recounting of the allegations against President Nixon as it 
relates to abuse of power--you started out in your presentation 
that the allegations included unlawful wiretaps, concealing 
evidence of the wiretaps, secret investigative units such as 
the plumbers who, to my chagrin, to my appalling understanding, 
broke into a psychiatrist's office of an American. Could you 
ever imagine? And then the use of the CIA and the FBI.
    My question to you, as I read from allegations of our 
Office of Independent Counsel, as he charged abuse of office: 
``The President repeatedly and unlawfully invoked the executive 
privilege to conceal evidence of his personal misconduct from 
the grand jury. The President refused six invitations to 
testify to the grand jury, thereby delaying expeditious 
resolution of this matter, then refused to answer relevant 
questions. The President misled the American people and the 
Congress in his public statement on August 17, 1998.''
    And might I just simply say, they refused to acknowledge 
that the Paula Jones case was dismissed, that she appealed it 
and then she settled it. They refused to acknowledge that. Mr. 
Bennett questioned the lack of clarity of the question to the 
President.
    But my question, Mr. Hamilton, does this equate so that the 
American people will not believe that we are here covering up 
the Nixon case--the Clinton case? Do we have the same abuse of 
power?
    Mr. Hamilton. There is no comparison between the Nixon case 
and the Clinton situation in my judgment. The Nixon case 
involved serious repeated abuses against the State, violations 
of the constitutional rights of individuals.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    Ms. Jackson Lee. Will you heal this Nation and provide for 
us a censure resolution and stop the farce and the theatrics of 
what is going on in this matter?
    Mr. Sensenbrenner. The clock runs at the same rate for one 
of the members of the committee.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. I would hope that the members would be 
respective of the time. The gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. Along those lines, 
I would like to thank both of these gentlemen for their 
participation in the process today and for your answers to Mr. 
Canady's question, which you indicated earlier that the 
standards in the Nixon impeachment, the Watergate proceedings, 
are not a standard to be followed for impeachment. Is that 
correct, Mr. Ben-Veniste?
    Mr. Ben-Veniste. They are not a threshold.
    Mr. Goodlatte. All right. That is what I am looking for. 
And I take it you agree with that, Mr. Hamilton?
    Mr. Hamilton. I don't think they set the bottom position of 
the bar. But I do think they are indicative of the type of 
conduct we should look at when we are considering impeachment.
    Mr. Ben-Veniste. I agree with that.
    Mr. Goodlatte. Certainly. Certainly. But you see, I think 
that the whole purpose of the White House's presentation today 
has been to try to raise the bar to that standard. And I think 
that that, plus this effort to suggest that somehow the motives 
of the majority of this committee are somehow wrong, are the 
efforts of the White House today.
    And, Mr. Ben-Veniste, you actually set this story straight 
a long time ago, long before you ever heard of Paula Jones or 
Monica Lewinsky, long before Bill Clinton was ever on the 
national scene. You wrote a book back in 1977 called 
``Stonewall, The Real Story of the Watergate Prosecution'' by 
Richard Ben-Veniste and George Frampton, Jr. In that, in the 
closing, you wrote about the Watergate proceeding:
    ''Did the system work? True, the nationally televised 
debate and vote on articles of impeachment was a shining hour 
for the House Judiciary Committee. But all in all, the total 
course of the committee's investigation exposed the extreme 
political nature of impeachment.'' This is about the Watergate 
proceeding.
    ``The cumbersomeness of the process, its politicization, 
and the unwillingness of so many in Congress to recognize 
objectively the stark facts of criminal wrongdoing that were 
put in front of them make the Nixon impeachment case an 
unpromising precedent.''
    Here is where I think you are so farsighted, more 
farsighted than anybody who has been before the committee 
today: ``Next time might it not be a potent defense for a 
President charged with wrongdoing to argue that his conduct, 
however improper, fell short of the spectacularly 
widespreadabuse of the Nixon administration. If Watergate or more is 
what it takes to galvanize the impeachment mechanism, can we really 
rely on it to protect us in the future against gross executive 
wrongdoing?''
    Let me ask you about the title of the book, Mr. Ben-
Veniste, ``Stonewalling''. That is an effort to obstruct 
justice, to keep the process from moving forward, from 
discovering the truth. Is that not an accurate definition of 
that?
    Mr. Ben-Veniste. The title of the book came from Mr. 
Nixon's injunction to his subordinates, to stonewall, to deny 
everything, to blame everything on the lower level individuals 
so that the higher-ups would not be detected.
    Mr. Goodlatte. Let me ask you this. Do you believe that 
President Clinton has engaged in stonewalling in this matter?
    Mr. Ben-Veniste. I believe that President Clinton tried to 
obfuscate from the very beginning a very inappropriate 
relationship of a private nature about which he was, I am sure, 
and should be, ashamed.
    Mr. Goodlatte. Let me ask you this. Is exercising executive 
privilege over personal matters and not public matters, is 
inventing new forms of executive privilege, is coaching 
witnesses about what may have previously transpired, is 
engaging in efforts to suborn perjury and to get your Cabinet 
officials and other members to go out and repeat falsehoods, 
are all of those stonewalling devices?
    Mr. Ben-Veniste. No, I do not believe those are 
stonewalling devices.
    Mr. Goodlatte. You don't think those are comparable----
    Mr. Ben-Veniste. Stonewalling devices that were involved in 
Watergate involved individuals denying such things as the 
misuse of the FBI, the misuse of the CIA, the misuse of the 
Internal Revenue Service to inflict pain and embarrassment upon 
enemies of the President of the United States.
    Mr. Goodlatte. I think you have just changed the definition 
of stonewalling.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from California, Ms. Waters.
    Ms. Waters. Thank you very much. Mr. Chairman and members. 
The last time I spoke I talked about Mr. Hyde's discussion of 
lying back in 1987, and I want to continue on that because I 
find these discussions about lying and perjury intriguing and 
troublesome. Intriguing because we discuss it in very 
interesting ways. We discuss lying as if it is fallen to us and 
if there are no gradations of lying that we understand and deal 
with on a daily basis.
    Judge Higginbotham, when he was here, talked about 
gradations of lying and we pretended not to know what he was 
talking about. It appears we are reticent to discuss our 
knowledge and experiences with lying because we want to send a 
message about our own honesty and credibility. I humbly submit 
to this committee that it does not make us less than honest 
human beings to recognize that there are lies and there are 
lies. The court recognizes, and that is why there is a legal 
definition for perjury. I believe that we make these 
distinctions every day, with our children, our families, our 
friends, our colleagues. Most of us would like to be as strong 
and truthful as we can be, and many of us work at trying to 
correct our faults and our weaknesses.
    In these hearings, we are attempting to hold the President 
to a standard that needs to be seen in context. Clearly the 
President's indiscretions are not impeachable. As Members of 
Congress, we take an oath and we swear to uphold the 
Constitution. The public does not believe politicians are as 
honest as we should be. They believe we are far too often 
guilty of extramarital affairs, violation of FEC laws, misuse 
of government resources, misrepresentations, promises not kept. 
The people do not necessarily demand expulsion of us for our 
poor judgments and less than candid actions. The public will 
know the difference between these actions and actions that defy 
our oath of office.
    We are often criticized because of the ways we deal with 
situations. Why are we trying to send a message about our 
honesty, our lack of honesty, by attempting to communicate our 
belief in zero tolerance? Nobody believes us. And we further 
damage our credibility by attempting to make this President's 
indiscretions impeachable. The public does understand 
inconsistency and lack of candor.
    Let me just put on the record the questions that I wanted 
to ask, and I will continue to ask of our chairman:
    Mr. Chairman, did you lead the defense of the Reagan 
administration during the Iran-Contra hearings in 1987 when 
President Reagan and his top national security advisers were 
accused of lying to Congress and the public about their secret 
arms sales to a terrorist state? Did you argue forcibly for a 
more nuance view of lies and deception? Did you in fact say 
lying is wrong but context counts?
    Mr. Chairman, did you say while Reagan aides may have lied, 
they did so for the larger purpose of fighting communism in 
Central America? In 1987, Mr. Chairman, did you say, ``It just 
seems to me too simplistic to condemn all lying,'' and I 
further quote, ``In the murkier grayness of the real world 
choices must often be made.''
    Mr. Chairman, do you agree with Charles Tifer, a deputy 
counsel to the Democratic members of the special Iran-Contra 
investigating committee, who said, ``Henry Hyde of 1987 
listened to Oliver North confess to an incredible career of 
lying to Congress, and he excused it.'' Mr. Chairman, do you 
agree with Mr. Tifer, who said, ``We are dealing with hard core 
obstruction of justice, where documents were destroyed and 
phony chronologies were concocted at meetings on which all 
conspirators agreed the goal was to lie, and Mr. Henry Hyde 
condoned that.''
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    Ms. Waters. I have got more the next time.
    Mr. Sensenbrenner. I would ask unanimous consent that the 
other questions of Mr. Hyde be placed in the record, if that is 
what the gentlewoman from California wishes.
    Ms. Waters. No, I have got to keep telling them to you.
    Mr. Sensenbrenner. I hope those questions were not directed 
to the present occupant of the chair.
    The gentleman from Indiana, Mr. Buyer.
    Mr. Buyer. You would note that the gentlelady from 
California wants to propound detailed questions of the chairman 
but she has no questions to ask of the President nor of his 
conduct.
    As I have heard some of the witnesses testify today on how 
unfortunate it has been for the committee to be so partisan, as 
if partisan is only defined by Republicans doing something and 
not perhaps even what the Democrats are doing. I mentioned 
itearlier. There is tremendous coordination in this town not only 
between you and Mr. Ben-Veniste, you go out on MS-NBC, you are one of 
the talking heads out there.
    Mr. Ben-Veniste. No Gong Shows.
    Mr. Buyer. I have a specific question for Mr. Hamilton. I 
noted in your testimony you are endorsing a concurrent 
resolution of censure. My question is, what would be the actual 
purpose of a censure? What would be the objective purpose of 
the censure? And what would be the effect of the censure?
    Mr. Hamilton. The purpose of the censure would be to 
condemn the President's conduct. The effect I think would be 
significant. We all have read how the President values his 
place in history. I think if a concurrent resolution was 
enacted by the Congress with heavy participation by the 
Democrats, as I believe would happen, that it would have a 
pronounced effect on the President.
    Mr. Buyer. The question was actual purpose and what would 
be the objective purpose. If you have to draft a censure 
resolution that condemns his conduct, are you then suggesting 
that within a censure, in order to do that there is some 
pronouncement perhaps of guilt on the President, on what he had 
done?
    Mr. Hamilton. I think the Congress has discretion to put in 
that censure resolution what it wants to put in there, and I 
would assume that there would be some pronouncement of guilt. I 
do not have a draft in my pocket to show you, but I would 
assume there would be.
    Mr. Buyer. Mr. Ben-Veniste, let me ask you the very same 
question about actual purpose, objective purpose and the effect 
of a censure.
    Mr. Ben-Veniste. Censure has been so infrequently used in 
our country to bring forward a strong and clear disapproval of 
conduct, that it is my view that this is not a slap on the 
wrist, but rather a device which is proportionate and 
appropriate to the misconduct committed by the President. 
Insofar as I have been asked about my statement 25 years ago 
about Watergate, there is a gulf between the crimes of Richard 
Nixon, what is an impeachable offense and what we have here 
before us.
    Mr. Buyer. Let me reclaim my time because I don't want to 
get back to Richard Nixon. The reason I asked this question, 
gentlemen, is because of case law. In order for a legislative 
measure to survive a bill of attainder prohibition, it must 
pass the three-pronged test.
    The test requires that the actual purpose, the objective 
purpose and the effect are not punitive. Courts are directed to 
examine the legislative intent of the measure to see if the 
intent was to punish. If the objective purpose was solely 
remedial, the measure may not qualify as punitive. Similarly, 
if the intent of the measure is to defer future acts of the 
same nature, it is likely not punitive.
    So the problem we have here is a bill of attainder, it 
pronounces the guilt of a party without any forms or the 
safeguards of a trial. So if you do a censure and the President 
may face indictment when he leaves office, we have now 
prejudiced his case.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Hamilton. Mr. Chairman, may I respond to that?
    Mr. Sensenbrenner. A sentence or two.
    Mr. Hamilton. A concurrent resolution of censure would not 
be a bill of attainder because it would not be legislation 
signed by the President. It would be a measure adopted by the 
two houses. It would not be an unconstitutional bill of 
attainder.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Massachusetts Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman.
    Mr. Ben-Veniste, as a former U.S. Attorney, you surely have 
extensive experience in bringing cases before grand juries and 
securing indictments. Indeed, you were deeply involved in the 
bringing of indictments in the Watergate cases before a grand 
jury in a nearby Federal district court, so I think you know 
what a grand jury does. You know the level of scrutiny it 
employs and what purposes it serves.
    For that reason I would like to hear your views on an 
analogy that it seems we are hearing more and more about as we 
approach this vote on impeaching the President of the United 
States which will likely take place Saturday, probably about 4 
o'clock, just before the network news and in time to make the 
Sunday morning papers, I would guess. Not that I would think 
that that would be a political question, but this analogy draws 
a parallel between the work that this committee and the House 
must do with respect to the Lewinsky matter and the work of an 
ordinary criminal grand jury.
    And under this perspective, we on the House side of the 
Hill apparently exist for little other reason than to serve as 
a ready conduit for scandal between the Office of Independent 
Counsel and the United States Senate, and we simply flow this 
referral through us and give sort of a stamp of approval and 
send it over to the Senate for trial.
    Now, personally I think that this analogy is a mistake. It 
is a grave mistake for our country. But I think that it is put 
forth by those who wish to send the following message to 
Republican House Members who are still struggling in good 
conscience with the impeachment issue. That is, vote for 
impeachment, it doesn't mean that you want the President to be 
removed from office, it doesn't make you responsible for 
whatever happens over in the Senate when they have a long trial 
and it breaks down. It is politically safe. All you are saying 
is, ``Hey, look, there's enough here, why don't you guys over 
in the Senate handle it.''
    What do you think of this attempt to draw the analogy 
between us, this committee and the House, and an ordinary 
criminal grand jury?
    Mr. Ben-Veniste. I think that your responsibility, because 
it is constitutional in nature, is far beyond the 
responsibility of a grand jury when you consider articles of 
impeachment. That man whose portrait is here in this room, I 
can tell you, was so burdened by the question of impeachment of 
a President of the United States which had been placed on his 
shoulders that it showed through to every American who saw 
those proceedings. Peter Rodino cared deeply about what his 
committee would do and how it would affect America, and the 
responsibility to be fair and complete and to be as unbiased 
and impartial and bipartisan as possible, because he was 
speaking directly to the American public, which then had to 
determine whether this cataclysm of impeachment was warranted.
    Mr. Meehan. I want to get to the grand jury testimony on 
August 17 of this year by the President, and I would like to 
ask you a couple of short questions.
    It is interesting why and how the President was called 
before the grand jury. But I am interested, at the time the 
President was called before the grand jury, do you believe that 
Ken Starr had any thought of seeking an imminent indictment of 
the President for civil deposition perjury?
    Mr. Ben-Veniste. I have no idea what Mr. Starr thinks 
about.
    Mr. Meehan. Let's assume he wasn't intending to seek an 
imminent indictment of the President in a civil deposition for 
perjury. Would he summon the President before a grand jury at 
that time for indictment purposes, or could it be perhaps he 
would wait until closer to the date in which he would be 
seeking an indictment, or willing to seek an indictment?
    Mr. Ben-Veniste. The latter would be true, but the practice 
in the United States in Federal prosecutors' offices is not to 
summon the target of an investigation before a grand jury.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Bryant.
    Mr. Bryant. Thank you, Mr. Chairman. Let me be clear and 
remind everyone once again as to what is going on today. We 
have the final two members of today's panels, witnesses number 
8 and 9 today, who are in here on behalf of the President, 
testifying favorably for the President as a part of the 30 
hours of testimony or time the President had to make his case.
    Both of you gentlemen are very experienced in trial law and 
know that oftentimes people who testify are independent and 
don't have any dog in that hunt, so to speak. Sometimes they 
have biases and prejudices. You both have made something of a 
disclosure before you testified, but in the interest of broader 
and fuller disclosure, quite frankly, Mr. Ben-Veniste, you had 
the opportunity to, I think--Mr. Craig has been here as the 
President's lawyer today. You had the opportunity to serve in 
that capacity at one time, but declined that opportunity, or 
declined that job, did you not? It was offered to you, was it 
not?
    Mr. Ben-Veniste. Let me say that my feeling about this 
matter----
    Mr. Bryant. I understand. In the interests of full 
disclosure, I am not making any allegations. I just wanted to 
know, were you offered his job and you turned it down?
    Mr. Ben-Veniste. I don't think that would be an allegation. 
I think any individual who is a lawyer in the United States----
    Mr. Bryant. In your preliminary testimony you mentioned 
some things I thought were fair disclosure. I am trying to make 
sure that everybody understands you also had the opportunity to 
be the President's lawyer.
    Mr. Ben-Veniste. It has been reported in the newspaper, 
sir, if I may, that discussions were held as to whether I would 
come on board in some way. My view about that was that the 
issues of impeachment of the President go so far beyond the 
question of the defense of this particular President, that 
although it would be a great honor for any lawyer to be 
selected to counsel the President of the United States.
    Mr. Bryant. Okay. You have answered that fully.
    Mr. Ben-Veniste. To talk in a broader way.
    Mr. Bryant. Mr. Hamilton--he answered it fully, I think. I 
have 5 minutes. I don't have time for a filibuster.
    Mr. Ben-Veniste. I hope I wasn't trying to filibuster.
    Mr. Bryant. As counsel for the President, for the Clinton-
Gore transition team for nominations and confirmations, you 
were the lawyer in 1992 and 1993?
    Mr. Ben-Veniste. Yes.
    Mr. Bryant. And you also mentioned voluntarily that you 
defended the case or you were involved against Mr. Starr 
somehow in the case against Vince Foster. You argued that case, 
I believe?
    Mr. Hamilton. Nine days before Vince Foster died he came to 
see me about legal representation. I took some notes. Mr. Starr 
wanted those notes. I thought those notes were protected, both 
by the attorney-client privilege and the work product 
privilege.
    Mr. Bryant. I understand. People are familiar with that 
case. I wanted to know, did you in fact represent Mr. Foster's 
estate?
    Mr. Hamilton. Yes.
    Mr. Bryant. You did. I am listening to my colleagues, and 
as time goes by we talk about how we want the facts, and how we 
have been disappointed that these nine witnesses have made 
essentially no presentation as to the facts, and that we should 
wait on this 184-page document.
    As part of that, I have quickly looked at about one-third 
of it, and in that it says that--somewhere along here, it says 
we are not going to be attacking Kenneth Starr anymore, and our 
submission to the committee is going to talk about the facts.
    But just quickly, in the first 50 pages or so, I counted--
we talked about sex earlier in his report, but I counted Mr. 
Starr's name, or the OIC or the Independent
    Counsel, 42 times, just in a quick glance at the first 50-
something pages.
    I hope--and this I guess is a message to Mr. Craig as the 
President's lawyer--I hope the balance of the 130 pages are 
more fruitful in terms of giving us, once and for all, some 
defense of the President based on facts and not on attacks of 
Kenneth Starr. I yield back the balance of my time.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman. I think it is 
important to note that in fact we have received 184 pages of 
the submission from counsel for the President related to facts 
and related to evidence.
    I think it is also time to put out here as a matter of 
public information that members of the minority have heard that 
there are draft articles of impeachment that have been written 
by staff counsel to the majority.
    I would respectfully suggest that tonight that those draft 
articles be produced for the President and for minority. If 
that is not the case, I stand corrected, but at least that is 
what has appeared in the paper, Mr. Chairman. I am making that 
request a formal request.
    I also want to pick up on something that Mr. Inglis has 
alluded to during the course of his questioning. He talked 
about facts and he talked about evidence, and he suggests that 
after three panels, we haven't heard from any fact witnesses.
    He is correct. During the entire course of this committee's 
work, we have not heard from a single factwitness. Those panels 
that have been produced here by the committee chair have been very 
informative, but none of them have contained a single fact witness. So 
we are now on the verge of making a decision of extreme gravity without 
having heard from one fact witness, either produced by counsel for the 
President or produced by the committee.
    Again, I want to read something in the record drafted by--
it is part of the committee report, and it is drafted by Mr. 
Schippers, the chief majority investigative counsel. This is 
his language: ``Monica Lewinsky's credibility may be subject to 
some skepticism at an appropriate stage of the proceedings. 
That credibility will of necessity be assessed, together with 
the credibility of all witnesses in the light of all the other 
evidence.''
    Well, I wonder what stage Mr. Schippers was referring to, 
because, as it has been stated here today, we are ready to take 
a vote at the end of this week. Maybe he was referring to a 
trial in the Senate. But since this is a House document, I 
presume that Mr. Schippers was referring to House proceedings.
    Now, having said all that, I think what I am hearing, and 
it is a point, it is a legitimate point from members of the 
majority side, that in there--in some of the individual 
members' opinions, they perceive grave damage to be done to the 
judicial system by what they suggest is perjury and obstruction 
of justice, despite the fact that we have not heard from any 
fact witnesses.
    At the same time, I think it is important for the American 
people to understand that those schoolchildren down in Texas 
that Mr. Smith referred to when he read their letters should be 
reassured that the President of the United States, if he has 
violated the criminal code, is still in legal jeopardy. He can 
be prosecuted if a prosecutor makes that decision, and, 
depending on the verdict, if it should get to a jury, can be 
incarcerated. The President of the United States is like every 
other American citizen.
    You know, when we talked about Mr. Starr as a witness, he 
is certainly not a fact witness, and in fact, I thought it was 
interesting when Mr. Starr acknowledged to this committee that 
not only had he not participated during--in FBI interviews, nor 
had he attended grand jury hearings, but he had never met 
Monica Lewinsky.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. I thank the chairman. We just received a little 
while ago this 184 pages, I think, that is the submission by 
the President's attorneys. This is supposed to be their answer 
to the facts, even though none of the witnesses here have 
really addressed the facts, as has been brought up a number of 
times. But this is supposed to talk about the facts and clear 
up everything.
    On page 77--and I haven't had a chance, and I doubt whether 
any other member has had a chance to read the whole thing. But 
on page 77, in the President's attempt to clear up whether he 
was alone with Ms. Lewinsky, and that he of course had 
indicated that he couldn't remember, or that he wasn't alone 
with her--the President's submission indicates, and this is 
their statement: ``The term `alone' is vague unless a 
particular geographic space is identified.''
    That is supposed to clear up the definition of ``alone.'' 
Let me read that again. ``The term `alone' is vague unless a 
particular geographic space is identified.''
    Mr. Ben-Veniste, let me ask you, can our system of justice 
work at all if witnesses parse words like this, when the 
commonsense meaning of a word, like ``alone'', ought to be 
pretty clear?
    Mr. Ben-Veniste. I agree that there has been too much 
hairsplitting and too much parsing of language in all of this. 
But can I say that surely the question of whether the President 
said he was alone or not alone on a particular day with a 
particular individual with whom he was having a consensual 
relationship cannot, in the wildest expansion of the concept of 
high crimes and misdemeanors, justify the impeachment of the 
President.
    I agree with you in connection with your frustration over 
this parsing of language.
    Mr. Chabot. I would agree with you, if it was only that one 
lie about whether or not he was alone with her. But there is a 
whole series of lies. I only have 5 minutes, so let me get on.
    Mr. Hamilton, in your opening you claim that the 
President's conduct should not be impeachable, and I quote, 
``because other Presidents have not been candid.'' Isn't this 
an argument for impeachment? Don't we want our Presidents to be 
honest, rather than giving them the opportunity, for example, 
to lie before a grand jury, or lie to Federal judges?
    Mr. Hamilton. Congressman, I think I said that I don't find 
the President's conduct impeachable for a variety of reasons, 
principally because it is not a great and dangerous offense 
against the State.
    But surely we don't want our Presidents to lie or our 
Congressmen to lie or our Senators to lie. But sometimes they 
do, and I think the question is, when we find that they have, 
do we want to initiate impeachment proceedings? I think there 
is some judgment that comes in here, some proportionality.
    Mr. Chabot. Certainly there does have to be judgment. Let 
me give the full quote. You said that ``Lying to the public and 
his cabinet and aides is disgraceful, but if we would impeach 
all officials who lie about personal or official matters, I 
fear that the halls of government would be seriously depleted. 
Other Presidents, for example, Lyndon Johnson as to Vietnam, 
have not been candid in their public and private statements.''
    Now, the President said, for example, that he would pull 
the troops out of Bosnia in a year. That was 3 years ago. They 
are still there. I don't think that is impeachable. But he was 
not testifying before a grand jury. He hadn't raised his hand 
and sworn to tell the truth, the whole truth, and nothing but 
the truth.
    That is the whole point here, is that this President 
apparently lied under oath, committed perjury. That is why many 
of us are seriously considering whether or not this President 
should be impeached and removed from office. I yield back the 
balance of my time.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Thank you, Mr. Chairman. If we have 
accomplished one thing today, I think we have accomplished 
something important. That is that many instances today the 
majority members have talked about the fact that the President 
has not presented any exculpatory facts.
    It has been referred to earlier, but here it is, 184 pages. 
If I'm getting the sense of it, from page 54 on, the great bulk 
of the testimony of the President's counsel relates to specific 
rebuttal, specific factual rebuttal of the claims against the 
President; that the President did not commit perjury, that the 
President did not obstruct justice, that the President did not 
tamper with witnesses.
    In analyzing some of the President's counsel's response, I 
would like to address the issue of perjury, because that is the 
issue that seems to have captured the imagination of most of 
the Republicans in the House. Let's talk about what that 
perjury, alleged perjury, is, at the grand jury.
    The President admitted to an inappropriate intimate 
relationship with Monica Lewinsky at the grand jury that was 
physical in nature. He acknowledged that his conduct was wrong. 
What the President denied at the grand jury was having sexual 
relations with Ms. Lewinsky, only as that term was defined by 
the Jones' lawyers and substantially restricted by Judge 
Wright.
    The President failed to go into the details of his 
encounters with Ms. Lewinsky, and he did testify that he did 
not have sexual intercourse or sexual relations, as defined by 
the Jones deposition.
    Mr. Schippers, the Republican counsel for the committee, in 
his presentation to this committee, analyzed that the 
discrepancy between the testimony of President Clinton and Ms. 
Lewinsky over the precise nature of the physical contact 
involved in their relationship--that was the basis for an 
allegation that President Clinton perjured himself before the 
grand jury.
    I would respectfully submit that the American people 
understand full well what an affair entails. They understand 
that it is not going out for coffee. And what the American 
people need to understand and what I would like Mr. Ben-
Veniste, for you to address to the American people and to those 
so-called moderate Republicans that have yet to make up their 
minds, what is this perjury before the grand jury about? Do I 
have it right?
    Is it about the discrepancy of the great detail by Ms. 
Lewinsky as opposed to the admission by President Clinton that 
it was wrong, that it was a physical relationship, that it was 
intimate, but he didn't tell us all of the precise details? Is 
that what the perjury is all about?
    Mr. Ben-Veniste. It seems to be. It seems to be what the 
perjury is all about, or the claim of perjury is all about. I 
have to say that if that is what it is, then simply using the 
word ``perjury'' does not convey the discrepancy between the 
remedy we are talking about; that is, to disenfranchise all of 
the United States in its election of the President, taking away 
their vote, nullifying it, and saying, he cannot be President 
anymore because he did not testify to these details in the 
grand jury. To me, that is mind-boggling.
    Mr. Wexler. Thank you very much.
    Mr. Sensenbrenner. The gentleman from Georgia, Mr. Barr.
    Mr. Barr. Thank you. Indeed, that might be mind-boggling, 
but that is not the situation we are faced with, Mr. Ben-
Veniste. You know very well that essentially what we are faced 
with is not simply a statement about an improper sexual conduct 
and an argument over the plain meaning of language regarding a 
court definition, but whether or not it is appropriate for a 
President to make statements in court for the purpose of either 
establishing or not establishing a pattern of activity that is 
deemed relevant to a lawsuit involving the civil rights, the 
constitutional rights, of a citizen.
    So you may, along with your colleagues on the other side of 
the aisle, keep simply saying that this is about a particular 
statement, but it really isn't.
    Mr. Hamilton, I find, similar to other statements that we 
have heard here, rather disturbing, where you say in your 
statement that the President lied, that he unlawfully invoked 
executive privilege repeatedly, abused power, and so forth; yet 
these don't rise to the level of an impeachable offense. I'm 
sure that we could engage in a discussion for the entire 
remainder of my 5 minutes and I'm not going to convince you 
otherwise.
    It just strikes me as odd that learned attorneys who have 
extensive experience in representing parties, including the 
United States, in court believe that it is appropriate for a 
President who, not just an average citizen but the President of 
the United States of America, in your opinion, lies under oath, 
unlawfully invokes executive privilege, commits abuse of power, 
yet should remain in office.
    Mr. Hamilton. Congressman, I did not say it was appropriate 
for the President to lie in office. You are mischaracterizing 
my statement.
    Mr. Barr.  The only way we have under the Constitution, Mr. 
Hamilton, unless you can pull out your copy of the Constitution 
and show me otherwise, to remove a President is impeachment.
    You are arguing that we should not impeach the President. 
Therefore, you are denying to us--you are saying that the one 
method we have of removing a President for these things, which 
you agree he committed, should not be available; then yes, by 
implications you are saying that that President should remain 
in office. We don't have any other way of removing a President 
from office for these sorts of abuses of office. Censure, even 
if we censured the President in themost horrendous language 
possible, called him all sorts of names, would not remove him from 
office. Even if we reprimanded the President in the most horrendous 
terms, it would not remove him from office.
    I would certainly presume that you would agree that the 
only method in our Constitution, the only method available to 
us, because we can't control whether a President resigns or 
not, to remove a President for whatever the behavior is that we 
believe is impeachable, is impeachment. Is there some other way 
of removing a President in our constitutional form of 
government?
    Mr. Hamilton. You have a way if he is disabled.
    Mr. Barr. Pardon?
    Mr. Hamilton. If the President is disabled, there is a way.
    Mr. Barr. We are certainly not contemplating disabling the 
President. Maybe you have some----
    Mr. Hamilton. You asked me a question, whether it was the 
only way. My answer is if the President is disabled there is 
another way.
    Mr. Barr. That is sort of silly. There are provisions in 
our Constitution that address a President who is disabled. That 
is not a method of removing a President from office that is 
available to us. I certainly would never contemplate that, 
anyway.
    What I am saying is it really does strike me as very, very 
odd for you all--and you are not alone, I know there have been 
many defenders of the President that have sat in those chairs 
today and in the prior hearings that we have had, and I'm sure 
we will have more tomorrow that will sit in those same chairs 
and admit that the President lied under oath, that he abused 
office.
    I commend you for at least recognizing that he has 
unlawfully abused the privileges available to him, such as 
executive privilege. Many of your colleagues won't even admit 
that. But yet then you say that this President should remain in 
office. And particularly with somebody with a distinguished 
career, that has represented the United States of America, both 
of you, that really does strike me as odd. I think that sends a 
very, very bad message to the country.
    That, I think, Mr. Ben-Veniste, is what does damage to our 
country's reputation and the ability of our President to 
conduct foreign affairs, not the fact that we might remove him 
for those sorts of behaviors.
    Mr. Ben-Veniste. If you have some actual empirical evidence 
of that, that would be contrary to what I hear when I talk to 
foreign nationals about what is going on in this country.
    Mr. Barr. My empirical evidence is the same as yours, what 
they tell me.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from New Jersey, Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Chairman. I would like to get 
back, if I may, to what I believe these hearings are all about. 
We have heard a great deal of conversation from my friends on 
the other side of the aisle that what these offenses are all 
about and what we should do about them has to do with whether 
we are going to enforce the rule of law in America or not, and 
whether we are going to send the right messages to our children 
and to others involved in the judicial--in the justice system 
as litigants or defendants.
    I agree that the rule of law is important, critically 
important to our system of justice and our way of life in a 
civil society. That is why there are penalties, civil and 
criminal penalties. I dare say to my friends on the other side 
of the aisle who trivialize what President Clinton is going 
through, and think that he might be a model to those who would 
avoid telling the truth, the following: The President of the 
United States has just agreed to pay Paula Jones and her 
lawyers $850,000 for his misconduct during the Paula Jones 
matter.
    Is that an incentive for people to lie in civil litigation? 
The President did not get away with anything there, did he? The 
fact that President Clinton is still subject, when he leaves 
office, to being criminally charged for any of the charges 
raised by Mr. Starr, and could go to prison for his misconduct, 
his alleged misconduct, is that an incentive for people not to 
tell the truth, the whole truth, and nothing but the truth 
under oath? Of course not. So all of the incentives to uphold 
the rule of law are there already.
    We are not talking about whether we want our kids to 
respect the truth. It is there already, and will be applied 
against the President. What we are talking about is what we are 
responsible for, upholding the Constitution. The Constitution 
says how the President gets hired, elected, and gets fired: 
Treason, bribery, and other high crimes and misdemeanors.
    We have to decide whether the President's conduct not 
should be punished, but--it has already been punished and may 
very well be punished criminally in the future. We are deciding 
whether, as a Nation, we must remove the President. So I 
daresay that the arguments about upholding the rule of law, we 
have already taken care of that discussion.
    One could argue that the penalty of impeachment and removal 
far exceeds the crime, and that censure is a better approach. I 
have not yet made my mind up on the charges raised by Mr. 
Starr. The hearing has not been concluded. But I will say to 
you this, that in my judgment a clear and convincing standard 
of proof must be met by those who would seek the President's 
impeachment and removal, and that it, of necessity, requires 
fact witnesses when the testimony relied on by Mr. Starr, is 
equivocal, is ambiguous, is contradictory, and is qualified, as 
the President's counsel has addressed.
    So we have one prosecutor, Judge Starr, saying the 
witnesses say this and it means this, we have the President's 
counsel say the witnesses said this and mean this. We are left 
to decide in the middle.
    Let me say that we are founded by a Nation of those who 
were loathe to take the word of government officials only, and 
put the burden of proving guilt on the accuser, and did not 
require the accused to prove his or her innocence. To put the 
burden of proof on the accused, in this case President Clinton, 
is not only to subvert the Congress' impeachment power, but 200 
years of American justice. I yield back, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Thank you, Mr. Chairman. Gentlemen, I thank 
both of you for being here. It has been a long day. You are the 
third panel which has been here, consisting of two very good 
lawyers testifying--not representing, testifying for the 
President of the United States today.
    As I understand your testimony, both of you think thatthe 
President has engaged in wrongful conduct. Is that correct?
    Mr. Ben-Veniste. Yes.
    Mr. Hamilton. Yes.
    Mr. Jenkins. Both of you think that the President has 
violated the law?
    Mr. Ben-Veniste. Perhaps.
    Mr. Jenkins. Perhaps?
    Mr. Hamilton. Certainly his testimony is most troubling.
    Mr. Jenkins. Perhaps, and the testimony is most troubling. 
Both of you, in any event, believe that some remedy for this 
situation is appropriate?
    Mr. Ben-Veniste. Yes.
    Mr. Jenkins. Both of you believe that. And you have talked 
about censure, fines, and reprimands, and perhaps one or two 
other possible remedies.
    Now, to follow up on what Mr. Barr was asking, and I will 
try to leave time for you to respond to this, but I am 
concerned, in reading the Constitution, it says that in the 
event there is a violation, the remedy for that is removal from 
office. Some people don't like to call it a remedy, some don't 
like to call it punishment, but whatever you call it, the 
Constitution provides that removal from office is the 
appropriate action to take.
    Now, I am not directing this at you, but this entire day 
has reminded me of that lawyer strategy that is used across 
this land whereby, if the law is against you, you argue the 
facts; if the facts are against you, you argue the law; if the 
law and the facts are both against you, then you attack the 
prosecutor, and certainly the special counsel has been attacked 
time and again in this room.
    Now, the very resourceful Washington lawyers have added a 
new dimension to that, and in addition to attacking the 
prosecutor, they have said, well, tell them how bad Watergate 
was to this country. So if I ever get back to practicing law, I 
may use this down in Tennessee.
    But my question to you is, do you not have any concern, 
either of you, for what the Constitution says insofar--and we 
don't know what is going to happen, it may never get to the 
point where there is a remedy employed, and that will resolve 
that question. But in the event that this proceeding gets to 
the point where there must be some remedial action taken, then 
do neither of you have any concern for the words of the 
Constitution that say that removal from office and that 
additional remedy of not holding public office again, do you 
not have any concern for that?
    Mr. Hamilton. Congressman, clearly that is a remedy that is 
set forth in the Constitution. That does not mean that there 
are not other remedies.
    The House is governed by a rules manual. If you look in the 
first pages of that manual, there is something that is called 
Jefferson's Manual that was written by Thomas Jefferson when he 
was the Vice President and was, therefore, the President of the 
Senate.
    In Jefferson's Manual, he says that a resolution is a way 
that a House can express its opinions, its purposes, and its 
principles. If you look in the footnote that is written by the 
Parliamentarian of the House, the Parliamentarian says in 
modern practice a concurrent resolution is the means by which 
the Senate and the House express their opinions and their 
purposes and their principles.
    So there is a legitimate way to do it that has been 
recognized since the time that Thomas Jefferson was Vice 
President, which was before 1800.
    Mr. Jenkins. But that--thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The Chair is aware that there are two members who wish to 
make requests to include material in the record.
    The gentleman from Georgia, Mr. Barr.
    Mr. Barr. Mr. Chairman, I wish to include a letter I had 
given to the chairman at the same point as the letter from Mr. 
Conyers.
    Mr. Sensenbrenner. Without objection.
    [Information not available at time of printing].
    Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
    Mr. Scott. I would like to enter this newspaper article 
from Sunday's Washington Times.
    Mr. Sensenbrenner. Without objection.
    [Information not available at time of printing].
    Mr. Sensenbrenner. Is there any further request to include 
material in the record?
    Mr. Goodlatte. I would ask that the Wall Street Journal 
article of today's date be included in the record.
    Mr. Sensenbrenner. Without objection.
    [Information not available at time of printing].
    Mr. Sensenbrenner. A further request?
    The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I have two articles, one dated November 
1993: House Panel Reportedly Draws up Clinton Impeachment 
Charges, and one dated November 28, 1998, Impeachment Articles 
Being Drafted.
    Mr. Chairman, I would like to include those.
    Mr. Sensenbrenner. Without objection, they are included.
    [Information not available at time of printing].
    Mr. Sensenbrenner. The gentlewoman from Texas, Ms. Jackson 
Lee.
    Ms. Jackson Lee of Texas. Mr. Chairman, I would like to 
submit in its entirety the Constitution of the United States of 
America, which does not denote any prohibition on censure.
    Mr. Sensenbrenner. I believe the committee has already 
printed that.
    Mr. Buyer. I object.
    Mr. Sensenbrenner. Does the gentlewoman from California 
have a request?
    Ms. Waters. Mr. Chairman, I want to take you up on your 
offer to place my questions to the Chairman in the record about 
his past comments.
    Mr. Sensenbrenner. You are talking about the real Chairman, 
not the acting Chairman?
    Ms. Waters. The real Chairman.
    Mr. Sensenbrenner. The Chair will put the question, without 
objection.
    [Information not available at time of printing].
    Mr. Sensenbrenner. For what purpose does the gentlewoman 
from California----
    Ms. Lofgren. I ask unanimous consent to submit for the 
record my two letters to Mr. Starr and my letter to the 
Attorney General relative to the three questions I asked Mr. 
Starr, and my seeking of answers to those.
    Mr. Sensenbrenner. Without objection.
    [Information not available at time of printing].
    Mr. Sensenbrenner. Anybody else? Going once, going twice.
    The gentlewoman from California.
    Ms. Waters. I would like to submit the L.A. Times article 
that I referenced by Mr. Savage relative to 1987, and the 
comments by our chairman, the real chairman.
    Mr. Sensenbrenner. Without objection.
    [Information not available at time of printing].
    Mr. Sensenbrenner. The gentleman from Wisconsin has been 
very patient, and is recognized.
    Ms. Jackson Lee. Mr. Chairman, I seek a clarification. It 
was noted that the Constitution is already cited in the record 
of these proceedings. Is that accurate, Mr. Chairman?
    Mr. Sensenbrenner. I said the committee has already 
published the Constitution elsewhere.
    Ms. Jackson Lee. I will get a review on this and raise the 
question again tomorrow. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Okay. That request is withdrawn, without 
objection.
    The gentleman from Wisconsin, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman.
    Several of my colleagues on the other side of the aisle 
have been keeping score tonight and have said that this is the 
third panel where we haven't had a material fact witness on 
behalf of the President. They are absolutely correct. Now, at 
the end of 3 months, if you are keeping score, as they have, 
there have been zero material fact witnesses to push this 
investigation and zero material fact witnesses in defense of 
the President. Again, the score remains zero to zero, which 
sort of highlights the bizarre nature of these proceedings. We 
have heard hours and hours of testimony on, talked to ourselves 
for hours and hours, and still not heard from a single 
individual who was supposedly involved in this. That points to 
some of the problems with the impeachment.
    I just want to take a minute or two to talk about my 
perception as to why we are having problems here. I think there 
are three reasons why the American people are opposed--at least 
the majority of the American people--are opposed to 
impeachment.
    I am going to advance, first, the one that I hear most 
often from my Republican colleagues, and that is that the 
economy is doing well. The stock market is doing well. People 
are working.
    That might be true. I must say I never thought that I would 
hear my Republican colleagues in Congress being frustrated by a 
good economy, but certainly I think that that is part of the 
reason, that the economy is doing well, inflation is low, 
unemployment is low. Darn it, it was that Democratic president 
who was in office when that happened.
    The second reason, and the one that I hear least often from 
my colleagues here, is that the American people think there is 
something wrong here, there is something going on. It can be 
characterized as attacks on Ken Starr. I frankly prefer to 
center my attention on Linda Tripp, because I think that she is 
the one that, in many aspects, is the focal point here.
    I don't think it is necessary to hold Ken Starr's office 
culpable for the mistakes, but when you have a situation where 
the cooperating witness for the Independent Counsel is also 
working very, very closely with the attorneys for Paula Jones, 
there is something wrong here. When we are doing something as 
grave as talking about setting aside the only national election 
in this country and there are questions about her role and the 
role that is being played by the political enemies of the 
President, in some respects I think that is a greater danger to 
democracy than anything we are talking about here tonight.
    The third reason I think is that many Americans think that 
these are not impeachable offenses.
    I was at home over the weekend. I wanted to buy some hock 
ham on Sunday. The grocer said to me, ``I will tell you, the 
President screwed up.'' And his language was much more colorful 
than that. He said, ``The President screwed up. But the 
question is, was it Bill Clinton the President, or Bill Clinton 
the man?'' He said, ``I think it was Bill Clinton the man who 
screwed up, and we should deal with it. It wasn't Bill Clinton 
the President.''
    As you analyze what should be an impeachable offense, if we 
can take a piece of paper and draw a line right down the middle 
and on one side you put offenses against the body politic, 
offenses against our democracy, those that we talked about in 
terms of Watergate, I think most of us would agree that those 
are offenses that are impeachable.
    On the other side of the ledger, you have offenses that are 
committed by a person. And I have heard individuals talk about 
murder. I would think that murder would be an impeachable 
offense, even though it is not an offense against the State. 
That is sort of at the high end, even though it is committed by 
the person. At the low end would be jaywalking. I don't think 
anybody would talk about that.
    But in the middle you have perjury. You have perjury for 
things like murder, but then you have people who say that their 
odometer was wrong when they got a speeding ticket. If that 
were the case, we would have a lot more malpractice, a lot more 
product liability suits against odometer makers than we have.
    But people are lying there. I think there is a gray area.
    So what it comes down to is, what is the best thing to do 
for this country? There is not a single person that I have yet 
to talk to who thinks the President is going to be removed from 
office. So we are going to slap him in the face. We are going 
to either slap him in the face with censure or impeachment. 
Impeachment drags this matter out for several months and 
divides the country. Censure, also a slap in the face. Both 
have only been done once in this Nation's history.
    So, in both instances, we are either going to censure the 
President for the second time in this country's history or we 
are going to impeach the President for the second time in this 
country's history. I opt for censure, which I think is the 
least divisive or the less divisive of the two.
    I yield back the balance of my time.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Arkansas, Mr. Hutchinson.
    Mr. Hutchinson. Thank you, Mr. Chairman.
    I wanted to first make reference to my friend from 
Virginia, Bobby Scott. He has mentioned twice today a question 
and a statement that I made to Mr. Craig, the White House 
counsel, the President's counsel.
    I was providing with specificity, at his request, the 
concerns I have about perjury. So the whole idea was not to 
bring up a new idea, but it was to be very specific and respond 
to his requests.
    There have been some questions asked about the evidentiary 
record in this case. I want to make it clear, in my own 
judgment--and I believe it is clear--that this committee has 
the burden of proof. There is not any question about that. If 
the House goes forward, the President has no burden of proof. 
It is this body that has the burden of proof. And it is not, in 
my judgment, by preponderance. It should be a high standard, 
because we are talking about impeachment of the President of 
the United States.
    So as I look at these facts, the burden of proof is on 
those who wish to go forward with articles of impeachment. We 
should make that perfectly clear. It should be a high standard.
    Now, to the evidentiary record on perjury, I don't know 
that there is a whole lot in dispute here. It appears to me 
that there is a growing consensus that the President lied under 
oath.
    Now, there is a debate as to whether this is legallyperjury 
or whether it is simple lying under oath. But I think there is a 
growing consensus. We don't need to have a lot of witnesses, if any 
witnesses. The record is clear.
    Obstruction is a little bit more difficult. You have to use 
a lot of common sense. You have to apply other evidence to 
support the particular witnesses in the case. You have to 
analyze that more.
    Let me go to the questions about perjury. I think this is 
an extraordinarily serious area. Questions have been raised 
about Mr. Starr, about Linda Tripp, about other figures in this 
inquiry.
    To me, it comes down to the fact that when the President 
testified in front of a judge in a civil deposition, a Federal 
proceeding, he had a choice to make, either to tell the truth 
or not to tell the truth. Regardless of what has happened in 
the investigation, when it went to the grand jury, Alan 
Dershowitz and everyone else was riding him, whatever you do, 
tell the truth in the grand jury. It could very well cost you 
your presidency.
    He had a choice to make. To blame it now on Starr or Linda 
Tripp, really, it is not helpful. I think you all would agree 
as lawyers that you cannot excuse a decision he made, if he 
made a decision not to tell the truth, on anything else but his 
own decision. Is that fair?
    Mr. Ben-Veniste. The question, all the way up to the grand 
jury, there are two things. One, he had another choice, and 
that was not to respond in the civil deposition and to take an 
appeal and to take that up.
    Mr. Hutchinson. That is true.
    Mr. Ben-Veniste. In connection with the grand jury, I again 
question the materiality and, indeed, the entire basis for 
claiming that perjury was committed. Because maybe I am missing 
something, but . . .
    Mr. Hutchinson. I agree. That is a legal question there 
that we can debate. That is not conceded. Materiality, all 
those issues on perjury, you can debate. But the truthfulness, 
the decision to lie or not, is the President's decision--either 
answer, don't answer, tell the truth or don't tell the truth.
    Mr. Ben-Veniste. That is true.
    Mr. Hutchinson. Would you agree, Mr. Hamilton?
    Mr. Hamilton. Yes.
    Mr. Hutchinson. I am going to run out of time here in just 
a few minutes.
    I want to thank you gentlemen for testifying. Quite 
frankly, I wanted to hear you because I have a high regard for 
both of you, but you are put in an awkward situation to help us 
make a decision, and you have no information that will help us 
make that decision. But I respectfully receive it.
    We are getting down to the ``lick log'' in this case, as 
they say on the farm in Arkansas, and we have to make a 
decision. It is not an easy one. Thank you for testifying.
    I wanted to end with a quote from 1974, since we have spent 
so much time reflecting on that proceeding. This is a quotation 
from a Member of Congress in his remarks to this committee. 
``But I am happy to say tonight that most of the people in my 
own State of Arkansas are law-abiding citizens who believe 
strongly in the rule of law in this country and that all of the 
people in this country have an obligation to live by that 
standard of law and that the leaders of the country have an 
obligation not merely to obey the law but to set an example of 
justice and adherence to justice upon which our free government 
must be based. There can be no national interest greater than 
the requirement that the public servants must be bound by the 
laws that they make and administer.''
    That statement was made by representative Ray Thornton of 
Arkansas, who is now on the Supreme Court of Arkansas. I 
reflected on that last night. I think that is still the 
attitude of the people of Arkansas. I just wanted to bring that 
to everyone's attention today.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Indiana, Mr. Pease.
    Mr. Pease. Thank you, Mr. Chairman.
    Mr. Ben-Veniste, you discussed earlier in your prepared 
remarks your suggestion that it would be appropriate and 
constitutional for the Congress to reprimand the President for 
his personal conduct. Without getting to the parsing of words 
again, what do you mean when you say it would be appropriate 
for us to reprimand the President for his personal conduct?
    Mr. Ben-Veniste. By which I mean to make the distinction 
between the meaning of high crimes and misdemeanors in the 
category of treason and bribery, versus the conduct with which 
you are now struggling. And it seems to me entirely 
proportionate, reasonable and in the greatest interest of this 
country to apply a commonsense and moderate approach to the 
conduct in question and the kind of remedy with which you will 
deal with that conduct.
    And in my view, a reprimand, be it a censure, be it a 
rebuke, but a formal declaration of disapproval of the conduct 
is the appropriate remedy.
    Mr. Pease. I understand that. My question still is when you 
say--let me back up. I'm not interested in us addressing in a 
reprimand, in a censure, in an impeachment, the President's 
personal contact, whatever it may have been, with Ms. Lewinsky. 
I do think it is appropriate for us to address the question of 
his behavior before judicial proceedings in their various 
forms. That is the distinction I was getting to.
    Mr. Ben-Veniste. All of that conduct, if I may, flows from 
his personal conduct. He appeared in his personal capacity 
before the lawyers and the judge in a deposition in a civil 
matter. He appeared in his personal capacity before a grand 
jury. I think that is the distinction.
    Were he to have lied about the misuse of power, say he had 
someone on this committee, Mr. Barr, for example, audited by 
the IRS, or had his phone bugged by a plumber's unit, or broke 
into a psychiatrist's office for the purpose of obtaining 
records, all of those things would indeed rise to a level of 
scrutiny.
    Mr. Pease. I understand. Thank you.
    Mr. Hamilton, in your prepared materials you discussed the 
issue of abuse of power, and I don't recall that you got into 
the question of executive privilege, but can you explain for us 
briefly your understanding of that concept?
    Mr. Hamilton. I did get into it in my prepared statement. 
There are several types of executive privilege, but one type is 
what is called the deliberative privilege. When the President 
speaks with his aides to obtain their advice, that conversation 
is presumptively privileged. That, by the way, is what the 
district court found, that those conversations were 
presumptively privileged.
    The court went on and found that the needs of the criminal 
justice system outweighed the President's presumptive 
privilege, so the court ordered the conversations and the 
information to be turned over. This is essentially what 
happened, by the way, in the Watergate situation. The Supreme 
Court found that President Nixon's tapes were presumptively 
privileged, but the needs of the criminal justice system, in 
this case the need in a trial, outweighed that.
    Mr. Pease. Thank you. Can you help me understand how on the 
one hand it can be argued that the President's behavior, his 
conduct, was purely personal, but yet he asserts executive 
privilege about behavior that he also contends is purely 
personal?
    Mr. Hamilton. I was not obviously in the conversations, and 
some of this information was in a sealed transcript. But I 
understand that certain of these matters, the Lewinsky matter 
and all, was discussed in the White House in determining what 
official actions the President was going to take. It had some 
ramification. I can't give you any details on that. Maybe that 
is a good question to ask Mr. Craig tomorrow.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I am going to begin by 
agreeing with my friend, Mr. Barrett, that we actually have a 
good economy with a Democratic President, and I would like to 
point out that that fact, the fact that the economy is going 
well in spite of a Democratic President, is maybe the best 
case, maybe the best case for not exaggerating the threat of 
impeachment proceedings to the country.
    Now, Mr. Ben-Veniste, did you know that Sam Dash was going 
to resign before that--from the Office of Independent Counsel 
before that became public?
    Mr. Ben-Veniste. No.
    Mr. Cannon. One of the nice things about being at the end 
of the panel, besides going through a long process, is that you 
get to sort of put things together as we go.
    I would like to speak to a couple of points made by my good 
friend, Mr. Rothman, who pointed out first of all that the 
President is going to be punished to some degree, $850,000, and 
humiliation; an $850,000 penalty in the Jones case, and that 
should teach children that perjury is not appropriate. May I 
just point out that I don't think this is about punishment.
    Secondly, in the case of the $850,000, the President may 
have decided to do that because of the box he is in publicly, 
but I think that went to settling the base case with Ms. Jones.
    Mr. Rothman talked at some length, and I agree with much of 
this, about the rule of law. Let me suggest that the question 
here is not the rule of law or not having the rule of law, but 
rather the kind of weight that we give here to perjury.
    There has been a great deal of comment today that we have 
heard about what happened in the Watergate circumstance, 
situation. That has established what I would call a very high 
bar for impeachment. I might say that this bar seems to be a 
lot more clear today after 24 years and after having come to a 
national consensus that what went on was wrong. I recall 
distinctly during the time how vicious and partisan that all 
was.
    On the other hand, we have a great deal of talk also about 
an alternative, and that alternative would be some kind of 
censure. The bar with censure is actually quite low. You may 
raise that bar a little bit by talking about a penalty, but of 
course you can't penalize the President unless he agrees. And 
you may also have him come and stand in the well of the House 
and abase himself before the House, something that I think 
would do great damage to the office of the President and not be 
appropriate.
    I find myself at this time really searching for where we 
ought to go. I think most Americans who care about these 
proceedings are also looking at some of these same questions. 
Interestingly, the facts are not really in question. We talked 
about the zero for zero with the fact witnesses.
    But we do have a prima facie case. We have a case that has 
been made, and many people have acknowledged that, essentially 
even trying to say that even if true, these actions wouldn't 
have been impeachable. Both of our current panelists have 
talked about or acknowledged wrongdoing on the part of the 
President.
    Mr. Owens earlier said that he thought the President had 
lied to the grand jury and had lied in the civil action about 
Paula Jones. He also said earlier than that that the facts are 
pretty clear, by which I think he meant that the President had 
actually committed perjury.
    Those people who support the President have variously 
called his behavior deplorable, I think is a term Ms. Jackson 
Lee used, reprehensible is a term Wayne Owens used, sinful is a 
term that Mr. Craig used, obscene has been used, morally wrong, 
indefensible, inappropriate, and improper. All these 
pejoratives from the supporters of the President imply sex 
rather than perjury.
    And I think there is an attempt when we use those kinds of 
terms to avoid the real issue here, which I believe is perjury.
    Frankly in trying to tie these issues up, Mr. Owens looked 
at the Republicans and sort of blamed us for people becoming 
aware of some of the President's most lurid actions, when it 
was in fact the vast majority of all of Congress who voted for 
the release of the documents that made those actions by the 
President public.
    Professor Drinan pointed out that one of the major 
differences between this hearing and that of 1974 is that 
Republicans are in the majority. I would suggest that the fact 
that Republicans joined Democrats in 1974 says more about 
Republicans then and Democrats now than it does about the 
difference between the crimes of President Nixon.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from South Carolina, Mr. Lindsey Graham.
    Mr. Graham. Thank you. Where did Mr. Rogan go?
    Mr. Sensenbrenner. Mr. Rogan is ill and went home.
    Mr. Graham. I am sorry, I apologize.
    Very important, you made some statements that really, Mr. 
Ben-Veniste--is that right?
    Mr. Ben-Veniste. Yes, it is.
    Mr. Graham. I think I understand what you are saying about 
the type of things that you would want to impeach a President 
for, and the types of abuse of office that becomes threatening 
to the public.
    If a President focused on a political enemy or someone that 
could affect the President adversely, and started using the 
power of the presidency or the power of the government against 
that small individual, that would trouble you, right; Watergate 
stuff, is that correct?
    Mr. Ben-Veniste. If he----
    Mr. Graham. If he wiretapped an individual, somebody that 
was a potential threat to their political interests, personal 
interests, monetary interests--let's just say political 
interests--or they got the IRS to kind of audit that person, 
then that really bothers you, doesn't it?
    Mr. Ben-Veniste. I think that is an abuse of power, yes, 
sir.
    Mr. Graham. If I can show a reasonable fact pattern that 
suggests such an event occurred with Bill Clinton, would you 
have a different opinion about this as being a little more than 
about sex?
    Mr. Ben-Veniste. I am certainly willing to listen to your 
argument, sir.
    Mr. Graham. You just need to tune in tomorrow.
    Mr. Ben-Veniste. Oh.
    Mr. Graham. Let me ask you this. About his perjury, about 
the body parts being contacted, I think most of us really 
believe if that is all there is to this, let's just let it go. 
Count me in that category. Count me in that category. We will 
do something to him other than impeach him.
    When the President, according to Mrs. Currie, came to her 
after his deposition testimony and made these statements, do 
either one of you know what he was trying to do? Here is what 
she claims he said: ``You were always there when she was there, 
right? We were never really alone? You could see and hear 
everything?'' This is really important. ``Monica came on to me, 
and I never touched her, right? She wanted to have sex with me, 
and I couldn't do that.''
    What do you believe the President was trying to do when he 
made those statements?
    Mr. Ben-Veniste. I don't know.
    Mr. Graham. Thank you. I yield back the balance of my time. 
We will talk about this tomorrow.
    Mr. Sensenbrenner. Finally, last and certainly not least, 
the gentlewoman from California, Mrs. Bono.
    Mrs. Bono. Thank you, Mr. Chairman. I always get the same 
introduction every time.
    Mr. Ben-Veniste, I want to address this to you. We were on 
a panel together, you were in New York, I was here in 
Washington. We didn't get to complete our dialogue. I would 
like to do that now, if I may, without Larry King present.
    I am curious which tape you saw first, between the Paula 
Jones deposition or the videotape of the grand jury testimony.
    Mr. Ben-Veniste. I don't think I have seen any tape of the 
Paula Jones deposition. I am pretty sure I have not.
    Mrs. Bono. All right. So you just read the transcript?
    Mr. Ben-Veniste. I am not sure that I read the entire 
transcript. I probably did not.
    Mrs. Bono. You have read parts of the transcript in the 
Paula Jones case?
    Mr. Ben-Veniste. I have read parts that were reproduced in 
the Starr report.
    Mrs. Bono. My question is not going to be legal, obviously. 
These brilliant minds, I leave that up to them to do that 
argument. By the time it gets to me, Mr. Graham and I have 
questions that are great and written, and we lose them. And by 
the end of 37 people, I am stuck with what is left in my gut.
    My question for you is if you have read parts of the 
transcript. I don't know that many Americans have read even 
that much of the transcript of the Paula Jones testimony. I am 
wondering if you believe that if the American people saw the 
testimony of the deposition before the Paula Jones case, if 
they might feel differently about the perjury case; if they 
would, when they saw the President lie, if they juxtaposed the 
two, Paula Jones and grand jury, how would they feel then? 
Would they be more inclined--would the poll numbers be 
different than they are?
    Mr. Ben-Veniste. Well, when I saw the President's testimony 
before the grand jury on videotape and I listened to what 
people were saying, I think they understood that the President 
was reacting as a human being who had done something about 
which he was ashamed, and which was a very human reaction.
    I think the idea of not disclosing a personal relationship 
with an individual with whom he should not have been having 
that relationship was troubling to him, and I think it is quite 
clear that he did not want to tell anybody about it in 
connection with that very highly politicized Paula Jones case. 
Whatever that case was about, dismissed by the court now, the 
tangential matter of Ms. Lewinsky, which the court ruled was 
not central to Ms. Jones' allegations against the President, 
was something that the President clearly wanted to evade 
talking about. And I don't think he did it the right way, and I 
don't think it is appropriate to lie in depositions, but it 
happens every day.
    Every time there is a civil case in which one party says X 
and the other party says Y, one says black, one says white, 
usually after all of that happens, the matter goes to a trial, 
if it is not settled before that, and then a jury decides, was 
it black, was it white, was it X, was it Y, and then the loser 
loses, the winner wins, and no one gets prosecuted for perjury.
    Mrs. Bono. All right, can I just jump back into my original 
question, I think it is a good one. If the American people saw 
the testimony of the President in both situations, would they 
feel differently, would the polling numbers which are so 
important to the Democrat side of this aisle, would those 
numbers be different if they actually saw the President lying 
to them?
    Mr. Ben-Veniste. I don't think I can answer your question. 
As much as you have worked on it, it has a lot of parts to it, 
and I think we will just have to see. And I am thankful that 
you are the last person to question us this evening.
    Mrs. Bono. Thank you very much. We all appreciate your 
time, and thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentlewoman yields back the balance 
of her time. The Chair is about ready to make the most 
controversial statement of the day. The committee stands 
recessed until 8 a.m. tomorrow.
    [Whereupon, at 8:58 p.m., the committee recessed, to 
reconvene at 8:00 a.m. on Wednesday, December 9.]


                          IMPEACHMENT INQUIRY:
                       WILLIAM JEFFERSON CLINTON,
                    PRESIDENT OF THE UNITED STATES,

                PRESENTATION ON BEHALF OF THE PRESIDENT

                              ----------                              


                      WEDNESDAY, DECEMBER 9, 1998

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to call, at 8:12 a.m., in room 
2141, Rayburn House Office Building, Hon. Henry J. Hyde 
[chairman of the committee] presiding.
    Present: Representatives Henry J. Hyde, F. James 
Sensenbrenner, Jr., Bill McCollum, George W. Gekas, Howard 
Coble, Lamar S. Smith, Elton Gallegly, Charles T. Canady, Bob 
Inglis, Bob Goodlatte, Stephen E. Buyer, Ed Bryant, Steve 
Chabot, Bob Barr, William L. Jenkins, Asa Hutchinson, Edward A. 
Pease, Christopher B. Cannon, James E. Rogan, Lindsey O. 
Graham, Mary Bono, John Conyers, Jr., Barney Frank, Charles E. 
Schumer, Howard L. Berman, Rick Boucher, Jerrold Nadler, Robert 
C. Scott, Melvin L. Watt, Zoe Lofgren, Sheila Jackson Lee, 
Maxine Waters, Martin T. Meehan, William D. Delahunt, Robert 
Wexler, Steven R. Rothman, and Thomas M. Barrett.
    Majority Staff Present: Thomas E. Mooney, Sr., general 
counsel-chief of staff; Jon W. Dudas, deputy general counsel-
staff director; Diana L. Schacht, deputy staff director-chief 
counsel; Daniel M. Freeman, parliamentarian-counsel; Joseph H. 
Gibson, chief counsel; Rick Filkins, counsel; Sharee M. 
Freeman, counsel; John F. Mautz, IV, counsel; William 
Moschella, counsel; Stephen Pinkos, counsel; Sheila F. Klein, 
executive assistant to general counsel-chief of staff; Annelie 
Weber, executive assistant to deputy general counsel-staff 
director; Samuel F. Stratman, press secretary; Rebecca S. Ward, 
officer manager; James B. Farr, financial clerk; Elizabeth 
Singleton, legislative correspondent; Sharon L. Hammersla, 
computer systems coordinator; Michele Manon, administrative 
assistant; Joseph McDonald, publications clerk; Shawn Friesen, 
staff assistant/clerk; Robert Jones, staff assistant; Ann 
Jemison, receptionist; Michael Connolly, communications 
assistant; Michelle Morgan, press secretary; and Patricia 
Katyoka, research assistant.
    Subcommittee on Commercial and Administrative Law Staff 
Present: Ray Smietanka, chief counsel; and Jim Harper, counsel.
    Subcommittee on the Constitution Staff Present: John H. 
Ladd, chief counsel; and Cathleen A. Cleaver, counsel.
    Subcommittee on Courts and Intellectual Property Staff 
Present: Mitch Glazier, chief counsel; Blaine S. Merritt, 
counsel; Vince Garlock, counsel; and Debra K. Laman.
    Subcommittee on Crime Staff Present: Paul J. McNulty, 
director of communications-chief counsel; Glenn R. Schmitt, 
counsel; Daniel J. Bryant, counsel; and Nicole R. Nason, 
counsel.
    Subcommittee on Immigration and Claims Staff Present: 
George M. Fishman, chief counsel; Laura Ann Baxter, counsel; 
and Jim Y. Wilon, counsel.
    Majority Investigative Staff Present: David P. Schippers, 
chief investigative counsel; Susan Bogart, investigative 
counsel; Thomas M. Schippers, investigative counsel; Jeffrey 
Pavletic, investigative counsel; Charles F. Marino, counsel; 
John C. Kocoras, counsel; Diana L. Woznicki, investigator; 
Peter J. Wacks, investigator; Albert F. Tracy, investigator; 
Berle S. Littmann, investigator; Stephen P. Lynch, professional 
staff member; Nancy Ruggero-Tracy, office manager/coordinator; 
and Patrick O'Sullivan, staff assistant.
    Minority Staff Present: Julian Epstein, minority chief 
counsel-staff director; Perry Apelbaum, minority general 
counsel; Samara T. Ryder counsel; Brian P. Woolfolk, counsel; 
Henry Moniz, counsel; Robert Raben, minority counsel; Stephanie 
Peters, counsel; David Lachmann, counsel; Anita Johnson, 
executive assistant to minority chief counsel-staff director, 
and Dawn Burton, minority clerk.
    Minority Investigative Staff Present: Abbe D. Lowell, 
minority chief investigative counsel; Lis W. Wiehl, 
investigative counsel; Deborah L. Rhode, investigative counsel; 
Kevin M. Simpson, investigative counsel; Stephen F. Reich, 
investigative counsel; Sampak P. Garg, investigative counsel; 
and Maria Reddick, minority clerk.

               OPENING STATEMENT OF CHAIRMAN HYDE

    Chairman Hyde. The committee will come to order. If the 
panel would be kind enough to turn their nameplates around. You 
know who you are, we would like to know who you are. Thank you 
very much. Good morning.
    The committee will come to order. Today we will hear from 
the fourth panel of witnesses. Panel witnesses will each have 
10 minutes to make a statement. After the testimony of the 
witnesses, members will be allowed to ask questions for 5 
minutes. I ask that the members please pay attention to their 
time and be aware that their questions should be asked and 
answered within their 5 minutes. The reason for that is it 
takes over 3 hours to cover the members under the 5-minute 
rule. To make this meaningful, we have to watch our time.
    Immediately following this panel, the committee will 
receive the testimony of White House Counsel Charles Ruff. 
After his presentation, members will question Mr. Ruff under 
the 5-minute rule. After the members have questioned Mr. Ruff, 
the committee counsel may question him.
    Thursday morning, tomorrow morning, we will have a 
presentation by minority chief investigative counsel Abbe 
Lowell at 9 a.m. and a presentation by chief investigative 
counsel David Schippers at 1:00 p.m. Immediately following Mr. 
Schippers, we will begin consideration of a resolution 
containing articles of impeachment for our deliberation. We 
will hear opening statements from all members Thursday evening.
    Friday we will begin consideration and debate of articles 
of impeachment. At this point my thinking is to provide a 10-
minute allocation for every member to make an opening--my 
present thinking is to allow 10 minutes for each member to make 
an opening statement. I think 10 minutes is adequate and in 
balance.
    I also know that you would like copies of any articles of 
impeachment that we may have. Let me just suggest to you, they 
are still works in progress. We think it improper, improvident, 
to issue any documents until we have heard the testimony. 
Changes are occurring as we speak. But as soon as we have a 
document that we feel fairly is a working draft that we can 
stand behind, we will get it to you.
    Mr. Scott. Will the gentleman yield?
    Chairman Hyde. I certainly will yield.
    Mr. Scott. As you know, Mr. Conyers and I wrote a letter 
asking for the specific articles to be available at least 48 
hours before we had to take action on them. It would seem to me 
that if we are going to consider the factual basis and go 
through the record to determine what the facts are and to 
propose amendments and to determine whether or not, with 
specificity, they actually constitute impeachable offenses that 
we would need some period of time, and 48 hours before we start 
having to deal with them, I think, is a minimum amount of time. 
Will we have 48 hours before we have----
    Chairman Hyde. The actual amendment process would not begin 
until Friday morning. We will try to get you something by early 
afternoon today. But they are still being drafted and I am 
unwilling to provide working papers and nothing more. We will 
give you a workable draft, fairly solid in terms of the final 
product, by early afternoon today. And you won't need the 
amending process until Friday morning.
    Ms. Jackson Lee. Will the gentleman yield?
    Chairman Hyde. Yes.
    Ms. Jackson Lee. I think you answered the question. If 
there were a desire to amend or to add to or to distract from, 
detract from this process of working together on these, it is 
an open process?
    Chairman Hyde. You mean, you want to help us draft articles 
of impeachment?
    Ms. Jackson Lee. In the spirit of bipartisanship, I want to 
know if the opportunity is open.
    Chairman Hyde. Indeed, the amendatory process will permit 
you to draft them any way you would like and we will give them 
full consideration.
    Ms. Jackson Lee. Or undraft them?
    Chairman Hyde. Oh, yes, undraft.
    Ms. Jackson Lee. The final question, Mr. Chairman, is as 
you well know, the votes will probably come very late in the 
day or possibly Saturday. Would we have an opportunity for an 
explanation of our votes before we vote?
    Chairman Hyde. I originally thought 5-minute opening 
statements and then 5 minutes at the end of the final vote, but 
I am persuaded by one of your members that a 10-minute opening 
statement is probably the procedure of choice. So we will all 
have plenty of opportunity to talk, and a 10-minute opening 
statement I hope will suffice. And then at the end we can vote 
and, as the phrase goes, get this behind us.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Frank. Mr. Chairman, I think you have done an adequate 
amount of time. My guess is that by the end, the opportunity we 
will have to explain ourselves will substantially outpace the 
interest anyone has in hearing our explanation.
    Chairman Hyde. I want to associate myself with the 
sentiments of the gentleman from Massachusetts.
    Mr. Sensenbrenner. Will the gentleman yield?
    Chairman Hyde. Yes.
    Mr. Sensenbrenner. Also in the spirit of bipartisanship, 
can we get a commitment on the Democratic side that the 
majority will have copies of amendments in advance so that we 
can prepare arguments and also any resolution of censure that 
the Democrats may offer?
    Mr. Frank. Mr. Chairman.
    Chairman Hyde. Just a second. First of all, they have to 
have the documents so they can know how to amend it.
    Mr. Sensenbrenner. I am aware of that.
    Chairman Hyde. So that would come first. Then I am sure 
they would give us their proposed amendments in adequate time 
for us to study them.
    The gentleman from Massachusetts.
    Mr. Frank. Two things. First, I think obviously there is a 
major resolution that could be done, but I would say, while it 
may be possible to do some of the amendments, as the gentleman 
from Wisconsin knows, because he is an able legislator, 
sometimes you do decide during the process because of the ebb 
and flow of the argument that you might want to offer an 
amendment. So I think that is an undertaking I think you can 
try, but I would never be able to commit----
    Mr. Sensenbrenner. Will the gentleman yield?
    Mr. Frank. Yes.
    Mr. Sensenbrenner. How about a censure resolution? Can we 
get a copy of that just like you are asking for a copy of our--
--
    Mr. Frank. I will trade you a copy of it for a vote on it 
on the floor.
    Mr. Sensenbrenner. I think, if the gentleman will yield 
further, I think, you know, we have been dealing in good faith 
in saying that we would give you copies of the proposed 
articles in advance. I would hope that the gentleman from 
Massachusetts would seriously consider reciprocating with any 
proposed censure resolution that the Democrats----
    Mr. Frank. Let me say, first of all, I am speaking in the 
absence of the Ranking Minority Member, but, yes, if there is a 
censure resolution ready, I am sure people will----
    Chairman Hyde. I have no doubt that we will have mutual 
exchanges of documents. Mr. Rothman?
    Mr. Rothman. Thank you, Mr. Chairman. I am concerned about 
the response from Judge Starr to the questions raised----
    Chairman Hyde. We have written him a letter.
    Mr. Rothman. If I may just finish, Mr. Chairman.
    Chairman Hyde. I am sorry. I was trying to anticipate your 
question.
    Mr. Rothman. I saw yesterday, it was distributed, a copy of 
a letter under your signature and Mr. Conyers' signature, 
asking Judge Starr to answer the questions that had been 
previously forwarded by the Democratic minority and others. You 
had indicated that you had hoped that he would have them by the 
end of the week. I would certainly hope and I am--first of all, 
I very, very sincerely appreciate the Chair's efforts in 
getting these answers to these questions. I believe Judge Starr 
indicated during his testimony that he would be happy to 
provide them, then he wrote back and said, he was not sure if 
he would, unless both parties agreed. And now that the Chair 
and the ranking member have put it in writing, I am hopeful 
that the Chair will be able to get from Judge Starr these 
answers before we debate and before we vote.
    Chairman Hyde. I understand they are not much help if we 
have already had the debate and vote. We will attempt to move 
that process along. I don't like to give deadlines to anybody, 
but we will do our best.
    Mr. Rothman. If I may just finish my--I just want to again 
repeat my thanks to the Chair for taking that action.
    Chairman Hyde. Well, I appreciate that very much. Thank 
you. Mr. Meehan.
    Mr. Meehan. The Independent Counsel can probably save time. 
He doesn't have to prepare the answers. He can just leak them 
to the press and we will read them.
    Chairman Hyde. Very good. Very good.
    Are you going to comment on what Mr. Meehan said? Otherwise 
you are not recognized for that purpose.
    Mr. Delahunt. Well, speaking of what Mr. Meehan said, I 
would hope that the Chair would entertain to address the 
concern of some members in terms of explanation for votes and 
expand the time period for the filing of concurring or 
dissenting opinions.
    Chairman Hyde. Well, if what you are saying means you want 
beyond the 10 minutes for the opening statements----
    Mr. Delahunt. No, I am not talking about that. I am talking 
after the committee concludes its business.
    Chairman Hyde. You have 2 days to file minority views.
    Mr. Delahunt. Right. I would hope, however, that the Chair 
would entertain waiving that particular rule.
    Chairman Hyde. We don't want to go into the Christmas week, 
Bill, I don't think. We don't want to put you against the wall, 
but we have to move ahead, really. Two days, I know you can 
collect your thoughts in 2 days and express them well.
    Mr. Delahunt. I need more time, Mr. Chairman.
    Chairman Hyde. Consult with Mr. Meehan.
    Mr. Delahunt. I will consult with Mr. Meehan.
    Chairman Hyde. All right.
    Mr. Scott. Mr. Chairman?
    Chairman Hyde. Yes, Mr. Scott.
    Mr. Scott. Are we going to have a business meeting sometime 
before the, before--I have a motion pending. I guess based on 
that explanation, it may not be relevant, but I would like the 
opportunity to offer it whenever we can get around to it.
    Chairman Hyde. All right. We do have some business to 
attend to. We are waiting for the propitious time to do that. 
At that point we will consider your motion, too.
    Very well.
    Mr. Scott. Thank you, Mr. Chairman.
    Chairman Hyde. Would the witnesses please stand and take 
the oath?
    [Witnesses sworn.]
    Chairman Hyde. Thank you. Let the record show the witnesses 
answered the question in the affirmative. We have a 
distinguished panel today, as we have had all week. Thomas P. 
Sullivan is a senior partner at Jenner & Block and has 
practiced with that firm for the past 44 years. He is a former 
United States Attorney for the Northern District of Illinois. 
Mr. Sullivan specializes in civil and criminal trial and 
appellate litigation and he has served as an instructor at 
Loyola University School of Law and for the National Institute 
for Trial Advocacy.
    Richard Davis is a partner with the New York law firm of 
Weil, Gotschal & Manges. He clerked for United States District 
Court Judge Jack B. Weinstein from 1969 to 1970. He also served 
as an Assistant U.S. Attorney in the Southern District of New 
York from 1970 through 1973 and was task force leader for the 
Watergate Special Prosecution Force,1973-1975. From 1977 to 
1981, he served as Assistant Secretary of the Treasury for Enforcement 
and Operations.
    Edward S. G. Dennis, Jr. is a partner in the litigation 
section of the Philadelphia law firm of Morgan, Lewis & 
Bockius. He joined the firm after 15 years with the Department 
of Justice, during which he held the following positions: 
Acting Deputy Attorney General, Assistant Attorney General for 
the Criminal Division, and U.S. Attorney for the Eastern 
District of Pennsylvania. He is co-chairman of the Corporate 
Investigations and Criminal Defense Practice Group.
    William F. Weld is a former 2-term Governor of 
Massachusetts. A graduate of the Harvard Law School, Governor 
Weld began his legal career as a counsel with the House 
Committee on the Judiciary during the Watergate impeachment 
inquiry. He then served as U.S. Attorney and as head of the 
Criminal Division at Main Justice under President Reagan before 
being elected Governor of Massachusetts in 1990.
    Governor Weld is currently a partner in the Chicago law 
firm of McDermott, Will & Emory and he is also the author of 
the recently published comic political crime novel, Mackerel By 
Moonlight.
    I hope it is not a violation of any rule or regulation to 
give a plug for the Governor's book.
    Ronald Noble is Associate Professor of Law at NYU Law 
School. He served as Under Secretary of the Treasury for 
Enforcement, 1994-1996; as Deputy Assistant Attorney General 
and Chief of Staff in the Criminal Division of the Department 
of Justice, 1988-1990; and as Assistant United States Attorney 
in the Eastern District of Pennsylvania, 1984-1988.
    Before recognizing each of you in whatever order you choose 
to go--although it is probably just as simple to start on my 
left to the right--I would like to recognize the Ranking 
Minority Member, John Conyers, for a statement, if he wishes to 
make one.
    Mr. Conyers. Could I delay my statement, Mr. Chairman?
    Chairman Hyde. You surely could.
    Mr. Conyers. Thank you.

 TESTIMONY OF THOMAS P. SULLIVAN, ESQ., FORMER U.S. ATTORNEY, 
 NORTHERN DISTRICT OF ILLINOIS; RICHARD J. DAVIS, ESQ., WEIL, 
GOTSCHAL & MANGES; EDWARD S.G. DENNIS, JR., ESQ., MORGAN, LEWIS 
& BOCKIUS; HON. WILLIAM WELD, FORMER GOVERNOR OF MASSACHUSETTS; 
 AND RONALD NOBLE, ESQ., PROFESSOR OF LAW, NEW YORK UNIVERSITY 
                           LAW SCHOOL

    Chairman Hyde. Very well, Mr. Sullivan.

                TESTIMONY OF THOMAS P. SULLIVAN

    Mr. Sullivan. Members of the Judiciary Committee, I 
appreciate the opportunity to appear before you today to 
discuss the professional standards for obstruction of justice 
and perjury. My qualifications to discuss this subject include 
over 40 years of practice in Federal criminal cases, chiefly in 
Chicago, but also in other cities. During most of that time I 
have acted as defense counsel for persons accused of or under 
investigation for criminal conduct. For 4 years, from 1977 to 
1981, I served as the United States Attorney for the Northern 
District of Illinois. Chairman Hyde and Mr. Schippers are known 
to me from the practice in Chicago, and I believe they can 
vouch for my qualifications.
    Chairman Hyde. Extraordinarily high.
    Mr. Sullivan. Thank you, sir.
    During the past 35 years, I have taken an interest in but 
no part in politics. While I am a registered Democrat, I 
consider myself independent at the ballot box and I have often 
voted for Republican candidates. I have acted for the 
Republican Governor of Illinois, a Democratic Senator, and 
Mayor Harold Washington. I have prosecuted as well as defended 
Democrat and Republican officeholders. I appear today not as an 
advocate or partisan for President Clinton or the Democrat 
Party, but rather as a lawyer of rather long experience who may 
be able to assist you in your deliberations on the serious and 
weighty matters you now have before you.
    The topic of my testimony is prosecutorial standards under 
which cases involving alleged perjury and obstruction of 
justice are evaluated by responsible Federal prosecutors.
    In the Federal criminal justice system, indictments for 
obstruction of justice and perjury are relatively rare. There 
are several reasons. One is that charges of obstruction and 
perjury are not substantive crimes, but rather have to do with 
circumstances peripheral to underlying criminal conduct. The 
facts giving rise to the obstruction or perjury arise during 
the course of an investigation involving other matters, and 
when prosecuted are usually tagged on as charges additional to 
the underlying criminal conduct.
    Second, charges of obstruction and perjury are difficult to 
prove because the legislature and the courts have erected 
certain safeguards for those accused of these ``ripple effect'' 
crimes, and these safeguards act as hurdles for prosecutors.
    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 testify 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.
    There is another cautionary note, and this I think is very 
significant here. Federal prosecutors do not use the criminal 
process in connection with civil litigation involving private 
parties. The reasons are obvious. If theFederal prosecutors got 
involved in charges and countercharges of perjury and obstruction of 
justice in discovery or trial of civil cases, there would be little 
time left for the kinds of important matters that are the major targets 
of the Department of Justice criminal guidelines. Further, there are 
well established remedies available to civil litigants who believe 
perjury or obstruction has occurred. Therefore, it is rare that the 
Federal criminal process is used with respect to allegations of perjury 
or obstruction in civil matters.
    The ultimate issue for a prosecutor deciding whether or not 
to seek an indictment is whether he or she is convinced that 
the evidence is sufficient to obtain a conviction. That is, 
whether there is proof beyond a reasonable doubt that the 
defendant committed the crime. This is far more than a probable 
cause standard, which is the test by which grand jury 
indictments are judged. Responsible prosecutors do not submit 
cases to a grand jury for indictment based upon probable cause. 
They do not ``run cases up the flagpole'' to see how the jury 
will react. They do not use indictments for deterrence or as a 
punishment.
    Responsible prosecutors attempt to determine whether the 
proof is sufficient to establish guilt beyond a reasonable 
doubt. If the answer is yes and there are no reasons to 
exercise discretion in favor of lenity, the case is submitted 
to the grand jury for indictment which, where I come from and 
everywhere else I know about, is routine and automatic. If the 
answer is no, that is, even if the evidence establishes 
probable cause but in the prosecutor's judgment will not result 
in a conviction, the responsible prosecutor will decline the 
case.
    Some years ago, during the Bush Administration, I was asked 
by an independent counsel to act as a Special Assistant to 
bring an indictment against and try a former member of 
President Reagan's Cabinet. Having looked at the evidence, I 
declined to do so because I concluded that, when all the 
evidence was considered, the case for conviction was doubtful, 
and that there were innocent and reasonable explanations for 
the allegedly wrongful conduct.
    Having reviewed the evidence here, I have reached the same 
conclusion. It is my opinion that the case set out in the Starr 
report would not be prosecuted as a criminal case by a 
responsible Federal prosecutor.
    Before addressing the specific facts of several of the 
charges, let me say that in conversations with many current and 
former Federal prosecutors in whose judgment I have great 
faith, virtually all concur that if the President were not 
involved--if an ordinary citizen were the subject of the 
inquiry--no serious consideration would be given to a criminal 
prosecution arising from alleged misconduct in discovery in the 
Jones civil case, having to do with an alleged coverup of a 
private sexual affair with another woman, or the follow-on 
testimony before the grand jury. This case would simply not be 
given serious consideration for prosecution. It wouldn't get in 
the door; it would be declined out of hand.
    A threshold question is whether, if the President is not 
above the law, as he should not be, is he to be treated as 
below the law? Is he to be singled out for prosecution because 
of his office in a case in which, were he a private citizen, no 
prosecution would result? I believe the President should be 
treated in the criminal justice system in the same way as any 
other United States citizen. If that were the case here, it is 
my view that the alleged obstruction of justice and perjury 
would not be prosecuted by a responsible United States 
Attorney.
    Having said that, I would like to address several of the 
specific charges in the Starr report. The first has to do with 
perjury in the President's deposition and before the grand jury 
about whether or not he had a sexual affair, relationship or 
relations with Ms. Lewinsky. The President denied that he did, 
based on his understanding of the definition of the term 
``sexual relations,'' adopted by the court in the Jones case. 
That definition, which you have before you in the papers, is 
difficult to parse, and one can argue either side, but it is 
clear to me that the President's interpretation is a reasonable 
one.
    Chairman Hyde. Mr. Sullivan, I hate to interrupt, but your 
time has expired. Do you think in another 3 minutes you could 
wind up?
    Mr. Sullivan. Yes.
    Chairman Hyde. Very well.
    Mr. Sullivan. I think I can.
    Chairman Hyde. We will continue it for 3 minutes.
    Mr. Sullivan. Thank you very much, Mr. Hyde.
    It is clear to me that the President's interpretation is a 
reasonable one, especially because the words which would 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 that he was telling a falsehood. The lie 
must be knowing and deliberate. It is not perjury for a witness 
to evade, 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.
    Let me turn to the issue of obstruction through delivery of 
gifts to Ms. Lewinsky by Ms. Currie. Some of the evidence on 
this subject is not recounted in the Starr report, but a 
responsible prosecutor will not ignore the proof consistent 
with innocence or which shows that an essential element of the 
case is absent. The evidence is that, when talking to the 
President, Ms. Lewinsky brought up the subject of having Mrs. 
Currie hold the gifts, and the President either failed to 
respond, or said, ``I don't know'' or ``I'll think about it.'' 
According to Mrs. Currie, Ms. Lewinsky called Mrs. Currie and 
asked Mrs. Currie to come to Ms. Lewinsky's home to take the 
gifts, and Ms. Currie did so. Ms. Lewinsky testified that Mrs. 
Currie placed the call to Ms. Lewinsky, but the central point 
in this is that neither Mrs. Currie nor Ms. Lewinsky testified 
that the President suggested to Ms. Lewinsky that she hide the 
gifts or that the President told Mrs. Currie to get the gifts 
from Ms. Lewinsky.
    Under these circumstances, it is my view that a responsible 
prosecutor would not charge the President with obstruction, 
because there is no evidence sufficient to establish beyond a 
reasonable doubt that the President was involved. Indeed, it 
seems likely that Ms. Lewinsky was the sole moving force; 
having broached the idea to the President, but having received 
no response or encouragement, she called Mrs. Currie to take 
the gifts, without the President's knowledge or encouragement. 
That is not the stuff of which an obstruction case is made.
    Because of time, I am going to skip over my third example 
and go to my conclusion.
    Chairman Hyde. Thank you.
    Mr. Sullivan. Which was about influencing Mrs. Currie's 
testimony.
    Time does not permit me to go through all of the 
allegations of misconduct in the Starr report. Suffice it to 
say that, in my opinion, none of them is of the nature which a 
responsible Federal prosecutor would present to a Federal grand 
jury for indictment. I will be pleased to respond to your 
questions.
    Thank you very much, particularly for the extra time.
    [The statement of Mr. Sullivan follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.001
    
    [GRAPHIC] [TIFF OMITTED] T3321.002
    
    [GRAPHIC] [TIFF OMITTED] T3321.003
    
    [GRAPHIC] [TIFF OMITTED] T3321.004
    
    [GRAPHIC] [TIFF OMITTED] T3321.005
    
    [GRAPHIC] [TIFF OMITTED] T3321.006
    
    [GRAPHIC] [TIFF OMITTED] T3321.007
    
    Chairman Hyde. Thank you, Mr. Sullivan.
    This is a formal proceeding, and in this Chamber of 
Congress, unlike in certain State legislatures, we never 
introduce people in the family, but this is a special day and 
we have someone in the audience that I think ought to be 
introduced. With the permission of the gentleman from 
Massachusetts, I would like to introduce Elsie Frank, Barney 
Frank's mother.
    Chairman Hyde. Thank you. Mr. Davis.

                 TESTIMONY OF RICHARD J. DAVIS

    Mr. Davis. Thank you, Mr. Chairman, Mr. Conyers, members of 
the committee.
    Mr. Coble. Mr. Chairman, I am reluctant to do this, but in 
the sense of fairness, do you think that--Mr. Sullivan was 
afforded an additional 3 minutes--that we should make that 
offer to the other members of the panel, if it comes to that?
    Chairman Hyde. I would rather face that critical decision--
--
    Mr. Coble. Very well.
    Chairman Hyde [continuing]. On a piecemeal basis.
    Mr. Coble. For the remaining four, at least, I tried.
    Chairman Hyde. Mr. Davis.
    Mr. Davis. Thank you. I will try and summarize my longer 
written statement, which the committee has.
    There can be no doubt that the decision as to whether to 
prosecute a particular individual is an extraordinarily serious 
matter. Good prosecutors thus approach this decision with a 
genuine seriousness, carefully analyzing the facts and the law 
and setting aside personal feelings about the person under 
investigation. In making a prosecution decision as recognized 
by Justice Department policy, the initial question for any 
prosecutor is, can the case be won at trial? Simply stated, no 
prosecutor should bring a case if he or she does not believe 
that based upon the facts and the law, it is more likely than 
not that they will prevail at trial. Cases that are likely to 
be lost cannot be brought simply to make a point, to express a 
sense of moral outrage, however justified such a sense of 
outrage might be. You have to truly believe you will win the 
case.
    I would respectfully suggest that this same principle 
should guide the House of Representatives as it determines to, 
in effect, make the decision as to whether to commence the 
prosecution by impeaching the President. Indeed if anything, 
the strength of the evidence should be greater to justify 
impeachment than to file a criminal case.
    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 use too narrowly-defined terms 
and interrogators frequently ask compound or inarticulate 
questions and fail to follow up imprecise answers.
    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.
    Third, prosecutors often need to assess the veracity of an 
``I don't recall'' answer. Like other answers, such a response 
can be true or false, but it is a heavy burden to prove that a 
witness truly remembered the fact at issue. The ability to do 
so will often depend on the nature of that fact. Precise times 
of meetings, names of people one has met, and details of 
conversations and sequences of events, indeed, even if those 
events are of fairly recent origin, are often difficult to 
remember. Forgetting a dramatic event is, however, more 
difficult to justify.
    The ability to win at trial is not, however, the only 
consideration guiding the decision whether to prosecute.Other 
factors reflected in the Justice Department guidelines include Federal 
law enforcement priorities, the nature and seriousness of the offense, 
the impact of the offense on any victim, whether there has been 
restitution, deterrence and the criminal history of the accused.
    Before turning to the application of these principles to 
the facts at hand, I should say that in my work at the 
Watergate special prosecutor's office, I was involved in 
applying these principles in extraordinarily high-profile 
cases. While we successfully prosecuted a number of matters, we 
also declined to proceed in a number of close cases. We did so 
even in circumstances where we believed in our hearts that a 
witness had deliberately lied under oath or committed some 
other wrongful act, but simply concluded that we were not 
sufficiently certain that we would prevail at trial.
    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 Ms. Lewinsky, to avoid 
the demeaning nature of providing wholly unreciprocated sex. 
Indeed, this incentive existed when Ms. Lewinsky described the 
relationship to the confidants described in the Independent 
Counsel's referral.
    Equally as important, however, Mr. Starr has himself 
questioned the veracity of his one witness, Ms. 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 of Ms. 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.
    It also is extraordinarily unlikely in ordinary 
circumstances a prosecutor would bring a prosecution for 
perjury in the President's civil deposition in the Jones case. 
First, while one can always find isolated contrary examples, 
under the prosecution principles discussed above, perjury 
prosecutions involving civil cases are rare; and it would be 
even more unusual to see such a prosecution where the case had 
been dismissed on unrelated grounds and then settled, 
particularly where the settlement occurred after the disclosure 
of the purported false testimony.
    Second, perjury charges on peripheral issues are also 
uncommon. Perjury prosecutions are generally filed where a 
false statement goes to the core of the matter under inquiry. 
Indeed, in order to prevail in a perjury prosecution, the 
prosecutor must establish not only that the testimony was 
false, but that the purported false testimony was material. 
Here, the Jones case was about whether then-Governor Clinton 
sought unwanted sexual favors from a State employee in 
Arkansas. Monica Lewinsky herself had nothing to do with the 
actual facts at issue in that suit. This deposition was about 
the Jones case. It was not part of a general investigation into 
the Monica Lewinsky affair, and that is important on the 
materiality issue. Given the lack of connection between these 
two events under the applicable rules of evidence, a purely 
consensual relationship with the President half a decade later 
would, I believe, not have even been admissible at any ultimate 
trial of the Jones case.
    While the court allowed questioning in the civil deposition 
about this matter, the judge did so under the very broad 
standard used in civil discovery. Indeed, while not dealing 
with the admissibility issue had there been no Independent 
Counsel inquiry, after the controversy about the President's 
relationship with Ms. Lewinsky arose, the court considered this 
testimony sufficiently immaterial so as to preclude testimony 
about it at the trial.
    Finally, the ability to prove the intentional making of 
false statements in the civil deposition is compounded by 
inexact questions, evasive and inconsistent answers, 
insufficient follow-up by the questioner, and reliance by the 
examiner on a definition of sexual relations rather than asking 
about specific acts.
    But whatever the ability to meet the standard of proof on 
this issue as to any particular question, it simply is not a 
perjury case that would be brought. It involves difficult proof 
issues as to, at best, peripheral issues where complete and 
truthful testimony would be of doubtful admissibility in a 
settled civil case which had already been dismissed. It simply 
is not the stuff of criminal prosecution.
    Turning to the issue of obstruction of justice involving 
the Paula Jones case, a prosecutor analyzing the case would be 
affected by many of the same weaknesses that are discussed 
above. These weaknesses as well as additional problems with 
such a case are discussed in my written statement, and I will 
not comment on them orally in the interest of time.
    Before concluding, I would like to make two closing 
observations. I will be, with your permission, just a minute or 
so.
    In August of 1974, prior to the pardon, the Watergate 
Special Prosecution Force commenced the extraordinarily 
difficult process of determining whether to indict then former 
President Nixon. In my 1974 memorandum analyzing the relevant 
factors which would ultimately affect such a decision, and 
proceeding in that memorandum on the belief not present here 
that adequate evidence clearly existed to support the bringing 
of such criminal charges, I articulated two primary and 
competing considerations which I believed it appropriate for us 
then as prosecutors to consider. The first factor was to avoid 
a sense of a double standard by declining to prosecute a 
plainly guilty person because he had been President. The second 
was that a prosecutor should not proceed with even provable 
charges if they conclude that important and valid societal 
benefits would be sacrificed by doing so.
    In the Nixon case, as articulated in my memorandum, such a 
benefit was the desirability of putting the turmoil of the past 
2 years behind us so as to better be able to proceed with the 
country's business. I believe today, 25 years later, that it is 
still appropriate for those deciding whether to bring charges 
to consider these factors.
    Finally, prosecutors often feel a sense of frustration if 
they cannot express their sense that a wrong has been committed 
by bringing charges. But every wrong is not a crime, and 
wrongful noncriminal conduct sometimes can be addressed without 
the commencing of any proceeding. Apart from issues of censure, 
we live in a democracy, and one sanction that can be imposed is 
by the voters acting through the exercise of their right to 
vote. President Clinton lied to the American people. If they 
believed it appropriate, they were free to voice their 
disapproval by voting against his party in 1998 and remain free 
to do so in 2000, as occurred in 1974 when the Democrats 
secured major gains.
    The answer to every wrongful act is not the invocation of 
punitive legal processes.
    Chairman Hyde. Thank you, Mr. Davis.
    [The statement of Mr. Davis follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.008
    
    [GRAPHIC] [TIFF OMITTED] T3321.009
    
    [GRAPHIC] [TIFF OMITTED] T3321.010
    
    [GRAPHIC] [TIFF OMITTED] T3321.011
    
    [GRAPHIC] [TIFF OMITTED] T3321.012
    
    [GRAPHIC] [TIFF OMITTED] T3321.013
    
    [GRAPHIC] [TIFF OMITTED] T3321.014
    
    [GRAPHIC] [TIFF OMITTED] T3321.015
    
    [GRAPHIC] [TIFF OMITTED] T3321.016
    
    [GRAPHIC] [TIFF OMITTED] T3321.017
    
    [GRAPHIC] [TIFF OMITTED] T3321.018
    
    [GRAPHIC] [TIFF OMITTED] T3321.019
    
    [GRAPHIC] [TIFF OMITTED] T3321.020
    
    [GRAPHIC] [TIFF OMITTED] T3321.021
    
    [GRAPHIC] [TIFF OMITTED] T3321.022
    
    [GRAPHIC] [TIFF OMITTED] T3321.023
    
    Chairman Hyde. Mr. Dennis.

              TESTIMONY OF EDWARD S.G. DENNIS, JR.

    Mr. Dennis. Thank you, Mr. Chairman.
    Mr. Chairman, Mr. Conyers, members of the House of 
Representatives Committee on the Judiciary, I am opposed to the 
impeachment of President Clinton. My opposition is grounded in 
part on my belief that a criminal conviction would be extremely 
difficult to obtain in a court of law. There is very weak proof 
of the criminal intent of the President. The Lewinsky affair is 
of questionable materiality to the proceedings in which it was 
raised. I believe that a jury would be sympathetic to any 
person charged with perjury for dancing around questions put to 
them that demanded an admission of marital infidelity; that is, 
unless the answers were essential to the resolution of a very 
substantial claim.
    On another level, I sense an impeachment under these 
circumstances would prove extremely divisive for the country, 
inflaming the passions of those who would see impeachment as an 
attempt to thwart the election process for insubstantial 
reasons.
    Perjury and obstruction of justice are serious offenses. 
They are felonies. However, in my experience, perjury or 
obstruction of justice prosecutions of parties in private civil 
litigation are rare. Rarer still are criminal investigations in 
the course of civil litigation in anticipation of incipient 
perjury or obstruction of justice. In such circumstances, 
prosecutors are justifiably concerned about the appearance that 
government is taking the side of one private party against 
another.
    The oath taken by witnesses demands full and truthful 
testimony at depositions and in grand jury proceedings--excuse 
me, demands truthful testimony at depositions and in grand jury 
proceedings. Nonetheless, imprecise, ambiguous, evasive and 
even misleading responses to questions don't support perjury 
prosecutions, even though such responses may raise serious 
questions about the credibility of a witness on a particular 
subject.
    Proof that a witness' testimony is untrue is not sufficient 
alone to prove perjury, and proof that a witness is 
intentionally evasive or nonresponsive is not sufficient to 
prove perjury either.
    Courts are rigorously literal in passing on questions of 
ambiguity in the questions and the responses of witnesses under 
oath, and generally give the accused the benefit of any doubt 
of possible interpretations of the questions and the meaning of 
the allegedly perjurious response. Perjury cases are very 
difficult to win under the most favorable circumstances.
    I believe the question of whether there were sexual 
relations between the President and Ms. Lewinsky is collateral 
to the harassment claim in the Jones case. The President has 
confessed to an inappropriate relationship with Ms. Lewinsky. 
The Jones case was dismissed and is now settled. These 
circumstances simply would not warrant the bringing of a 
criminal prosecution, and a criminal prosecution would most 
likely fail. Certainly the exercise of sound prosecutorial 
discretion would not dictate prosecuting such a case.
    The consequences of the impeachment of the President of the 
United States are far-reaching. These consequences are grave 
and they impact the entire Nation. Impeachment in my view 
should not serve as a punishment for a President who has 
admittedly gone astray in his family life, as grave as that 
might be in personal terms. Where there is serious doubt, as 
there must be in this case, prudence demands that Congress 
defer to the electoral mandate. Thank you, Mr. Chairman.
    Chairman Hyde. Thank you Mr. Dennis.
    [The statement of Mr. Dennis follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.024
    
    [GRAPHIC] [TIFF OMITTED] T3321.025
    
    Chairman Hyde. Mr. Noble.

                   TESTIMONY OF RONALD NOBLE

    Mr. Noble. I, too, will attempt to keep my remarks within 
10 minutes, Mr. Chairman.
    Mr. Chairman, Mr. Ranking Minority Member, and members of 
the committee, before I begin my formal remarks, let me extend 
my thanks to the following people who helped prepare me under 
these rushed circumstances. My brother, James Noble, is here 
with me today, a research assistant; Russell Moore, a friend of 
mine in law school is here with me today; my students in my 
evidence class, with whom I spent the last two weeks talking 
about impeachment but not the impeachment of a President, the 
impeachment of a witness. I have been trying to give them 
hypotheticals with which or from which they could learn. I told 
them I will be the best prop they will have today.
    I am honored to appear before you today. I will discuss the 
factors ordinarily considered by Federal prosecutors and 
Federal agents in deciding whether to investigate, indict and 
prosecute allegations of violations of Federal criminal law.
    I submit that a Federal prosecutor ordinarily would not 
prosecute a case against a private citizen based on the facts 
set forth in the Starr referral. My experience which forms the 
basis of my testimony is as follows: I have served as an 
Assistant U.S. Attorney, a chief of staff and Deputy Assistant 
Attorney General in the Justice Department's Criminal Division 
during the Reagan and Bush administrations, and Under Secretary 
of the Treasury for Enforcement in the Clinton administration, 
and I am currently a professor at the New York University 
School of Law where I teach, as I said, a course in evidence.
    When investigating a possible violation of the law, every 
Federal prosecutor must heed the guidelines of the Department 
of Justice. DOJ guidelines recognize that a criminal 
prosecution entails profound consequences for the accused and 
the family of the accused, whether or not a conviction 
ultimately results.
    Career Federal prosecutors recognize that Federal law 
enforcement resources and Federal judicial resources are not 
sufficient to permit prosecution of every alleged offense over 
which Federal jurisdiction exists.
    Federal prosecutors are told to consider the nature and 
seriousness of the offense as well as available taxpayer 
resources. Often these resources are scarce and influence the 
decision to proceed or not to proceed and the decision how to 
proceed. Federal prosecutors may properly weigh such questions 
as whether the violation is technical or relatively 
inconsequential in nature and what the public attitude is 
towards prosecution under the circumstances of the case. What 
will happen to public confidence in the rule of law if no 
prosecution is brought or if a prosecution results in an 
acquittal? Even before the Clinton Lewinsky matter arose, DOJ 
guidelines intimated that prosecutors should pause before 
bringing a prosecution where the public may be indifferent or 
even opposed to enforcement of a controlling statute, whether 
on substantive grounds or because of a history of 
nonenforcement or because the offense involves essentially a 
minor matter of private concern and the victim is not 
interested in having it pursued.
    Yet, public sentiment against an otherwise worthy 
prosecution should not dispel prosecutors from bringing charges 
simply because a biased and prejudiced public is against 
prosecution. For example, in a civil rights case, or a case 
involving an extremely popular political figure, it might be 
clear that the evidence of guilt, viewed objectively and by an 
unbiased fact-finder, would be sufficient to obtain and sustain 
a conviction, yet the prosecutor might reasonably doubt whether 
the jury would convict. In such a case, despite his or her 
negative assessment of the likelihood of a guilty verdict based 
on factors extraneous to an objective view of the law and 
facts, the prosecutor may properly conclude that it is 
necessary and desirable to commence or recommend prosecution 
and allow the criminal process to operate in accordance with 
its principles.
    During the civil rights era, many prosecutions were brought 
against people for locally popular but no less heinous crimes 
against blacks. However, prosecutors should not bring charges 
on public sentiment in favor of prosecution when a decision to 
prosecute cannot be supported on grounds deemed legitimate by 
the prosecutor.
    DOJ prosecutors are discouraged from pursuing criminal 
prosecutions simply because probable cause exists, and a number 
of the witnesses have already addressed this point. Why? 
Because probable cause can be met in a given case, it does not 
automatically warrant prosecution. Further investigation may be 
warranted, and the prosecutor should still take into account 
all relevant considerations in deciding upon his or her course 
of action.
    Prosecutors are admonished not to recommend in an 
indictment charges that they cannot reasonably expect to prove 
beyond a reasonable doubt by the legally sufficient evidence at 
trial. It is one of the most important criteria that 
prosecutors must consider.
    Prosecution should never be brought where probable cause 
does not exist, and both as a matter of fundamental fairness 
and in the interest of the efficient administration of justice, 
no prosecution should be initiated against any person unless 
the government believes that the person will be found guilty by 
an unbiased trier of fact.
    Federal prosecutors and Federal agents, as a rule, ought to 
stay out of the private sexual lives of consenting adults. 
Neither Federal prosecutors nor Federal investigators consider 
it a priority to investigate allegations of perjury in 
connection with the lawful, extramarital, consensual, private 
sexual conduct of citizens. In my view, this is agood thing. 
From a proactive perspective, who among us would want the Federal 
government to initiate sting operations against private citizens to see 
if we lie about our extramarital affairs or the nature of our sexual 
conduct? Imagine a rule that required all Federal job applicants to 
answer the following question under oath: Because we are concerned 
about our employees being blackmailed about unusual or inappropriate 
sexual conduct, and because we want to know whether you would be at 
risk, please name every person with whom you have had a sexual 
relationship or with whom you have had sexual intercourse during your 
life. It certainly would be relevant and certainly might lead to 
blackmail.
    Such a question would naturally lead to allegations of 
perjured responses. Irrespective of constitutional challenges 
from a public policy standpoint, most Americans would object to 
Federal prosecutors and Federal agents investigating and 
prosecuting those cases that came to our attention.
    Could we trust our government to make fair, equitable and 
restrained decisions about how much to investigate any one of 
these allegations? The potential for abuse and violation of our 
right to privacy would be great. Indeed, assigning Federal 
agents to interview witnesses, install wiretaps and insert bugs 
to learn about the private, legal sexual conduct of U.S. 
citizens would concern us all. But aggressive prosecutors and 
agents would do exactly that to make cases against those 
citizens where prosecutions would garner publicity and thereby 
act as a deterrent, and in my view the biggest target would be 
politicians.
    As a general matter, Federal prosecutors are not asked to 
bring Federal criminal charges against individuals who have 
allegedly perjured themselves in connection with civil 
lawsuits. As a rule, Federal prosecutors on their own do not 
seek to bring criminal charges against people who perjure 
themselves in connection with civil depositions for the reasons 
that have already been articulated.
    In addition, this would open a floodgate of referrals. 
Parties by definition are biased, and it would be difficult to 
discount the potential bias. By their nature, lawsuits have 
remedies built into the system. Lying litigants can be exposed 
to such and lose their lawsuits. The judge overseeing the 
lawsuit is in the best position to receive evidence about false 
statements, deceitful conduct and even perjured testimony. She 
can sanction violating litigants by initiating civil or 
criminal contempt proceedings.
    Notwithstanding the reasons generally, there are 10 good 
reasons, taken in combination, which support the view that a 
career Federal prosecutor asked to investigate allegations like 
those in the Clinton-Lewinsky matter would not pursue Federal 
criminal prosecution to the indictment or trial stage.
    One, the alleged perjury occurred in a civil deposition and 
concerned private, lawful sexual conduct between consenting 
adults.
    Two, the alleged perjured testimony was deemed inadmissible 
by the trial judge.
    Three, that evidence arguably was dismissed as immaterial 
by the trial judge.
    Four, in any event, the alleged perjured testimony was at 
most marginally relevant.
    Five, the alleged perjured testimony did not affect the 
outcome of the case.
    Six, the parties settled, and the Court dismissed the 
underlying civil lawsuit.
    Seven, the settlement of the suit prevented the appellate 
court from ruling on the dismissal and on the materiality of 
the alleged perjured testimony.
    Eight, the theoretically harmed party knew of the alleged 
perjury prior to settlement.
    Nine, alleged, I say alleged, political enemies of the 
defendant funded the plaintiff's suit.
    Ten, a Federal government informant conspired with one of 
the civil litigants to trap the alleged perjurer into perjuring 
himself.
    Given the above considerations, most Federal prosecutors 
would not want to use taxpayer dollars, Federal agents and 
sensitive Federal investigative resources to uncover the most 
intimate and embarrassing details of the private sexual lives 
of consenting adults when there is a risk of bias and when 
there is a judge in a position to address the alleged criminal 
conduct.
    The judgment that a career prosecutor might make about an 
ordinary person might be very well affected by the knowledge 
that the alleged perjury was committed by the President. That 
is to be conceded. Even the most experienced, fair-minded 
prosecutor will find it difficult not to pursue allegations of 
criminal misconduct against the President, a Senator, a 
Governor, any Member of Congress.
    The interests in targeting, threatening or in harming the 
President especially can be explained in part by the power and 
visibility of his office. Even a prosecutor with exceptional 
judgment might be tempted by the challenge of bringing down a 
President. A prosecutor with unchecked power, unlimited 
resources and only one target might find the temptation even 
stronger.
    Mr. Chairman, I believe I can conclude in 2 minutes with 
the permission of the Chairman.
    Chairman Hyde. Two minutes?
    Mr. Noble. In 2 minutes.
    Chairman Hyde. Very well.
    Mr. Noble. Thank you, Mr. Chairman.
    It is difficult to think of a fail-safe structure that 
could protect anyone from allegations of bias in the decision 
to prosecute or not prosecute the President. Not the Attorney 
General, the Independent Counsel, the Justice Department, the 
FBI, the Secret Service, the Federal judiciary, the Congress, 
the Bar, and the Academy can escape some person or act in their 
background that could create a conflict or an appearance of a 
conflict. No one for or against prosecution would be safe from 
attack on the merits or from false personal attacks.
    For this reason, a prosecutor or a committee assigned such 
a case must strive to be objective, knowing that criticism of 
bias will be unavoidable. In a prosecutorial context, a 13-to-
10 vote by the grand jury constitutes enough votes to proceed, 
but reflects that there must be or might be a serious problem 
with some aspect of the case. Similarly, a vote for impeachment 
based on a party line vote or a near party line vote is a 
signal that something is wrong or may be wrong with the case 
and that the case may not be worth pursuing. This is 
particularly true where the overwhelming majority of Americans 
appear to be well-informed about the allegations and unbiased 
as a group. Yet they do not want this President impeached.
    While indictments and impeachment proceedings aredifferent, 
they carry at least two similarities. One, most of us know it when we 
see the clear cases for criminal conviction and for impeachment. Two, 
public confidence in the rule of law and our system of government would 
suffer if we regularly indicted cases or impeached Presidents only to 
have juries or the Senate vote to acquit.
    In closing, I believe that the Justice Department got it 
right and Independent Counsel Donald Smaltz got it wrong. 
Indictments and impeachments that result in acquittal ought to 
be avoided where possible. No prosecutor would be permitted to 
bring a prosecution where she believed that there was no chance 
that an unbiased jury would convict. Almost no one in this 
country believes that the U.S. Senate will convict the 
President on any potential article of impeachment. Members of 
Congress should consider the impact that a long and no doubt 
sensationalized trial will have on the country, especially a 
trial that will not result in a conviction.
    In the end, I am confident that you will give the weighty 
responsibility that you must discharge serious consideration. A 
vote against impeachment need not be viewed as a vote against 
punishment. As Professor Steve Saltzburg noted before you 
earlier this week, Judge Susan Webber Wright retains 
jurisdiction over the case wherein the allegedly perjured 
testimony occurred. She can hold civil or criminal contempt 
hearings. Of all the arbiters of justice in this matter, she is 
perceived as being the least biased. She can punish the 
President for false and misleading conduct even if it does not 
rise to the level of perjury or obstruction of justice. Trust 
her to mete out the appropriate punishment.
    I thank you.
    Chairman Hyde. Thank you, Mr. Noble.
    [The statement of Mr. Noble follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.026
    
    [GRAPHIC] [TIFF OMITTED] T3321.027
    
    [GRAPHIC] [TIFF OMITTED] T3321.028
    
    [GRAPHIC] [TIFF OMITTED] T3321.029
    
    Chairman Hyde. Governor Weld.

     TESTIMONY OF HON. WILLIAM F. WELD, FORMER GOVERNOR OF 
                         MASSACHUSETTS

    Mr. Weld. Mr. Chairman, Mr. Ranking Member, members of the 
committee, my name is William Weld, and I am sincerely honored 
to appear before you this morning.
    I am no Tom Sullivan, but I have knocked around the 
criminal justice world a little bit. From 1986 to 1988, under 
President Reagan, I was the Assistant Attorney General in 
charge of the Criminal Division in Washington, which is 
relevant because that's the policy or political appointment 
charged with ensuring the uniformity of charging decisions, 
decisions whether to seek an indictment around the country in 
various districts.
    Prior to that, for 5 years, I was the United States 
Attorney in Massachusetts, and I became familiar in the course 
of that 7 years with the handbook, the Principles of Federal 
Prosecution, and with the United States Attorney's Manual and, 
when I was in Washington, with the practices and procedures 
that also have been developed over the years to try to ensure 
uniformity in charging decisions.
    It so happens that in 1974, for 9 months, I also worked for 
this committee under Chairman Rodino on the impeachment inquiry 
into President Nixon, and I worked on the constitutional and 
legal unit there, which was charged with reading every 
precedent in Britain, in Hinds, in Cannon, in reported cases in 
the records of the 1787 debate on the Constitution having any 
relevance at all to what high crimes and misdemeanors means in 
the United States Constitution.
    Like Mr. Sullivan, like many others, I do not consider 
myself an advocate here before you. I do have a couple of 
points of view that I would like to share with the members of 
the committee, and you can take them for what they are worth. 
Ordinarily, in a civil context, you don't qualify as an expert 
on the basis of 9 months' experience, but for whatever they are 
worth.
    I do believe, Mr. Chairman, that under the Reagan 
Administration, it was not the policy of the U.S. Justice 
Department to seek indictments solely on the basis that a 
prospective defendant had committed adultery or fornication, 
which are not lawful, but it simply wasn't the policy to go 
there. It was also not the policy to seek an indictment based 
solely on evidence that a prospective defendant had falsely 
denied committing unlawful adultery or fornication.
    Let me say a little bit about perjury cases. I don't think 
they are all that rare, and I have prosecuted a lot of them, 
but I do think that what one or two of the witnesses said is 
true. There is usually something else involved in a Federal 
perjury prosecution. There is a pass-through aspect here. You 
are really going to something else.
    I once prosecuted a guy who stated that he was in Florida 
on November 28th and 29th, 1981. You may say, that's kind of 
stooping to pick up pins. Why would you prosecute him for that? 
Well, that was the day the city of Lynn, Massachusetts, burned 
down, and this guy was an arsonist, and three people made him 
in the Porthole Pub in Lynn, Massachusetts that day, and we 
found his fingerprints on a ticket to Florida the next day, 
after the fire, so we thought it would be a good idea to bring 
a perjury prosecution there to rattle the cage a little bit, 
and we did.
    And often we brought them where we were trying to penetrate 
a wall of silence as in cases of public corruption or 
narcotics, when you are trying to break through this omerta, 
everyone has got to dummy up, phenomenon. But there is 
something else that you are trying to get at there.
    Until this year, the policy of the Department of Justice 
was that in cases of false statements, they would not seek an 
indictment solely on the basis of somebody denying that they 
themselves had committed misconduct. This is called the 
``exculpatory no'' doctrine, and it was adopted in a lot of 
circuits. It was kicked out by the Supreme Court in a decision 
by Justice Scalia early this year based on bad facts. You had a 
ranking union official who had taken moneyfrom employers in 
violation of an independent Federal statute, so that's the something 
else that the prosecution was trying to get at. So a very unsympathetic 
case for the Court applying the ``exculpatory no'' doctrine.
    In my view, it would have been a handy idea to carve out an 
exception to the abrogation of that doctrine for cases 
involving personal misconduct as opposed to a violation of an 
independent Federal statute such as was involved there. 
Certainly, a responsible prosecutor could apply that filter in 
the exercise of his or her discretion.
    The last thing, let me just say, on the law of impeachment, 
I am pretty well convinced that adultery, fornication, or even 
a false denial, false, I am assuming perjury here, false denial 
of adultery or fornication, they do not constitute high crimes 
and misdemeanors within the meaning of the impeachment clause 
of the U.S. Constitution. They are not offenses against the 
system of government. They don't imperil the structure of our 
government.
    The remedy of impeachment is to remove the officeholder, 
get the worm out of the apple. It is a prophylactic remedy. It 
is not punitive. If any of you are thinking we have got to vote 
yes on impeachment to tarnish the President, he is already 
tarnished, and that's really not the purpose of the impeachment 
mechanism. Nobody is going to forget this stuff. And this is a 
man who has been elected President of the United States twice, 
and thus entitled to this office, after allegations very 
similar to those now before you.
    I hate to open old wounds, but you remember back to 1992, 
and the Gennifer Flowers matter, if there are two people in a 
room and they both deny that something happened, then you can't 
prove that it happened. Well, that's very similar to what we 
are talking about here, and this officeholder was elected 
President of the United States twice after all of those facts 
were before the people.
    So I come out thinking that the most appropriate result is 
something other than removing this person from his office, 
taking his office away from him.
    There is a lot of talk about censure. I think personally 
the dignity of Congress and the dignity of the country demands 
something more than merely censure here. And I would suggest in 
conclusion, Mr. Chairman, four things that you might want to 
think about in addition to censure.
    Number one, it is not unknown for grand juries 
investigating corruption in a city or a county, for example, to 
issue a written detailed report of their findings. That could 
easily be done here. It would be entirely proper.
    Number two, there could be a written acknowledgment of 
wrongdoing on the part of the President, and for reasons which 
will become evident in a moment I would not propose that there 
be insistence on the use of the word ``lie'' or ``perjury'' 
there, but it is something that could be negotiated to reflect 
the gravity of what he has done.
    Number three, there could be an agreement to pay a fine. 
This is something tangible, more tangible than censure, and it 
involves the respondent as well as the moving party, the moving 
party here being the House, and that would mark the moment. 
That would mark the solemnity of the occasion. And the 
agreement would remove any doubt about somebody going to court 
and saying, there is no basis for this. It would be thrown out 
on the basis of political question doctrine anyway, I think.
    I am not here to say what the fine should be, but if memory 
serves, Speaker Gingrich had to pay quite a large fine not so 
long ago because people didn't like either the content or the 
marketing of a college course that he taught.
    The members might wish to consider providing that the fine 
could not be paid out of the proceeds of a legal defense fund, 
given all the background circumstances.
    Finally, what I am proposing, the final element, would be 
that the President would have to take his chances with respect 
to the criminal justice process post his Presidency. I do not 
agree with those in the media who say that any deal on censure 
has to protect the President against criminal proceedings after 
he leaves office. First of all, there doesn't have to be any 
deal on censure. That's entirely within your power. The White 
House has no leverage there. Second, the Constitution 
explicitly says that even if a President or anybody is 
impeached, convicted and removed from office, they remain 
liable to trial and indictment. It is very explicit. It is 
right in the Constitution.
    If the objection is that the spectacle of a former 
President being prosecuted would be tawdry and degrading, it 
really could not be much more tawdry and degrading than what we 
have already been subjected to through the constant daily 
reports of the Lewinsky affair.
    Lastly, I agree with everyone who has spoken before about 
whether a perjury prosecution here really lies. I think there 
is quite a low risk of that from the point of view of the 
President.
    So that's the suggestion. It is a political suggestion, but 
this is, in part, a political process; about a five-part deal, 
if you will, and I think the dignity of the House would be 
upheld if something like that were to be approached, and 
everybody could perhaps get on more easily with attending to 
the public's business.
    Thank you, Mr. Chairman.
    Chairman Hyde. Thank you, Governor.
    [The statement of Mr. Weld follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.030
    
    [GRAPHIC] [TIFF OMITTED] T3321.031
    
    [GRAPHIC] [TIFF OMITTED] T3321.032
    
    [GRAPHIC] [TIFF OMITTED] T3321.033
    
    Chairman Hyde. Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    As I am sure all members of the panel know, the last 
impeachment took place 9 years ago in 1989 against Walter Nixon 
of Mississippi, and in that impeachment the House of 
Representatives, by a vote of 417 to nothing, declared that 
making false statements to a grand jury were impeachable 
offenses. The Senate apparently agreed with the House's 
judgment because Judge Nixon was removed from office on a 91-
to-8 vote on both of those articles of impeachment.
    I am wondering if members of the panel think that the House 
made a mistake 9 years ago in unanimously declaring that making 
false statements to a grand jury were impeachable offenses?
    Mr. Davis. Well, one, I think you have to look at the 
proof. First of all, I assume there was proof as to the perjury 
that took place. I assume also that the perjury, as I recall, 
went to a core issue in the matter in which the perjury took 
place. So you had certain important factual differences.
    I also think that there is an important difference when one 
is considering the issue of a judge versus the President, since 
a judge, as others have testified, sits for life subject to 
good behavior, and so the standard is not precisely the same as 
would be in removing a President who is elected by thepublic 
and sits for only 4 years.
    And finally, I think that in terms of perjury, I do think 
that one has to look a little bit about what the underlying 
events are, and I do think that since what we are talking about 
is a private consensual relationship being at the core of it, 
that that affects the impeachability. But the bottom line is, 
as I said in my statement, I don't think there is really the 
proof, particularly as to grand jury perjury.
    Mr. Sensenbrenner. Well, just by way of background, the 
events that led up to the Judge Nixon impeachment, which is 
contrasted to the President Nixon impeachment--we have to be 
very particular here--involved a private affair, a financial 
affair, where Judge Nixon allegedly accepted an illegal 
gratuity of a sweetheart deal in an oil and gas lease. He was 
acquitted of that charge by the jury at a criminal trial.
    So here we are seeing that the jury made a determination 
that Judge Nixon did nothing wrong in terms of entering into 
the oil and gas lease, but he was convicted by the jury of the 
two counts of making false statements.
    While there are some differences, there are also some 
similarities in that a private--private misconduct was alleged 
as a part of the grand jury investigation.
    I am concerned with the answer to your question in that you 
seem to be implying that the standard of truthfulness for the 
President of the United States is less than for a Federal judge 
someplace in the country, because the President is elected and 
the judge is appointed and holds office for good behavior. Am I 
wrong on that?
    Mr. Davis. I am not really saying that. I am saying that 
the standard for truthfulness is really the same. I am saying 
that here I don't think there is the proof, particularly as to 
the grand jury, that you can make the case of perjury; and, 
second, what I am saying is the standard for impeachment, not 
the standard for truthfulness, but there are differences in the 
standard of impeachment for a judge as opposed to the 
President, and I think there is a lot of scholarship on that.
    Mr. Sensenbrenner. Well, yesterday many of the President's 
defenders were troubled about the alleged false statements to 
the grand jury, and at least one of the witnesses that the 
White House brought up here, former Congressman Owens, flat out 
said that the President lied before the grand jury.
    That's what the House found in terms of Judge Nixon, and, 
you know, I am concerned that if a judge lies to the grand 
jury, we all agree that it is impeachable, and if the President 
lies before the grand jury, then there is a huge debate about 
whether or not that's impeachable.
    Now, who is going to stand up for the truth here?
    Mr. Davis. Well, respectfully, I don't think that the 
evidence supports the perjury in the grand jury, as I 
articulate in my statement.
    Mr. Sensenbrenner. Thank you. I yield back my time.
    Chairman Hyde. The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Gentlemen, I want to pay my highest 
commendations to all of you here, because you have now put on 
the record, once and for all, all of these pestering questions 
that have been attempted to be dealt with for so many weeks and 
months now. You should, Ron, feel proud to go back to your 
evidence class. You can hold your head high. And I thank you 
all.
    Now, the important thing about this was that, unless I 
missed something, none of you contradicted each other, nobody. 
And it seems to me that this testimony of you five gentlemen 
ought to be bound up and delivered, which I would elect to do. 
I need Pat Buchanan to get a copy of this, Tim Russert, Cokie 
Roberts, George Will, Sam Donaldson and Miss Buchanan, Pat's 
sister, not because they object to all of this, but because 
they are the ones that in the media continue, with many others, 
of course, this nonsensical debate about obvious legal 
questions that a first-year law student could dispose of.
    So what you have done here is of signal importance, from my 
point of view. This should be studied carefully by everybody 
that makes public utterances about the questions of perjury and 
obstruction and how and when materiality figures into the 
prosecutorial role.
    Now, this question has come up, I think I called it the 
Scott question: Is there any case on record for a prosecution, 
based on a case in which it was dismissed, it was an immaterial 
statement, there was a settlement to boot? I mean, are we going 
through everything? Has anybody ever heard of a case like this? 
We need the citation right away if there is, because I will 
stop making this assertion.
    Mr. Sullivan. Mr. Conyers.
    Mr. Conyers. Mr. Sullivan.
    Mr. Sullivan. I can't guarantee you that there is no such 
case, but I doubt it. The thrust of what I am saying is that 
the Federal criminal process is simply not used to determine 
truth or falsity in statements in civil litigation, and it is 
also even more true when you take a situation, as you have 
here, that the testimony is even peripheral to the civil case 
involved.
    The Federal criminal justice system is not designed or 
intended to enforce a code of moral conduct. That's not what we 
do, or what I used to do, and what the good Federal prosecutors 
do. I'm not saying you can't find an errant one somewhere that 
will bring charges, but so far as I know, it would be totally 
unprecedented if such a case were brought.
    Mr. Conyers. Thank you.
    Mr. Davis, Mr. Noble, Governor, any other comments on this, 
this matter?
    Mr. Dennis. Well, I agree. I mean, I do not disagree with 
any of the statements that have been made by my colleagues here 
on the panel. I have not considered the suggestions that 
Governor Weld had made with regard to possible political 
disposition of the matter, but I think that it is fairly clear, 
and that if a poll were taken of former U.S. attorneys from any 
administration, you would probably find the overwhelming number 
of them would agree with the assessment that this case is a 
loser and just would not be sustained in court.
    Chairman Hyde. The gentleman's time----
    Mr. Conyers. Thank you, Mr. Chairman. I think that this is 
one of the most important panels that we have had before us in 
the course of these proceedings.
    Chairman Hyde. Thank you, Mr. Conyers.
    The gentleman from Florida, Mr. McCollum.
    Mr. McCollum. Thank you very much, Mr. Chairman.
    Mr. Sullivan, have you had an opportunity to review the 
District of Columbia Circuit Court of Appeals decision 
regarding the question of materiality in the issue before us, 
you know, in the question of the Independent Counsel and 
Lewinsky?
    Mr. Sullivan. I have read about it in the Starr Report. I 
don't think I read the opinion.
    Mr. McCollum. Well, the decision just was unsealed and 
available to us in the last week, and you may not be aware that 
the District Court of Appeals opinion squarely addressed that 
issue of materiality, and it found that her false sworn 
statement would be material for the purposes of perjury law. In 
other words, a false statement by the President in that case 
would have been material. So I think we can put that 
materiality question to rest that Mr. Conyers just raised.
    I also want to make a comment to you, Governor Weld. You 
said that I do not believe that adultery, fornication or false 
denial of adultery or fornication constitutes high crimes and 
misdemeanors within the meaning of the impeachment clause of 
the Constitution of the United States.
    I agree with you. But in this case we are not dealing 
simply with false statements or fornication or adultery. We are 
dealing with potentially perjury, obstruction of justice, 
witness tampering, things of that nature, and this is where you 
and I may differ, and I think it is significant.
    Albeit a civil case, Mr. Sullivan, you and Mr. Davis and 
several others on the panel pointed out how rare you think it 
is for perjury cases to be brought in Federal court in civil 
cases, and yet we just had Mary--Barbara Battalino, I should 
say, last week as a witness, a very recent case in which a 
perjury case was brought in a civil suit involving the Veterans 
Administration psychiatrist, and on August 4, 1998, a former 
employee of the United States Postal Service, Diane Parker, was 
sentenced to 13 months in prison and 3 years of supervised 
release for lying in a civil case regarding a sexual 
relationship with a subordinate. And that, of course, was a 
Federal case.
    I have got citations for 29 of these cases, at least, 
sitting right here. There are 115 people minimally, maybe more 
than that by now, serving in Federal prison today for perjury; 
as I say, most of those, or a great many of those, for civil 
perjury. So maybe the policy a few years ago was different, but 
certainly prosecutors are prosecuting in these sexual 
harassment-type cases and the type of Battalino and Parker 
cases that we are seeing more of today than maybe we did back 
10 or 15 years ago.
    I also want to address the question that, Mr. Sullivan, you 
raised, and I think, Mr. Davis, you raised, in particular, 
about perjury with regard to a single witness. Section 1623, as 
you have pointed out rightfully, does allow prosecution with a 
single witness, and I dare say that about 90 percent of the 
cases brought today that have resulted in people going to 
prison in the Federal system have been brought under that. I 
have looked at it, and that's who those 115 people constitute.
    Now, I will agree with you. I think that your analysis is 
good, you need corroborative witnesses even though it may not 
be required. But let me go through here what is in the grand 
jury case with respect to the perjury charged, and it is the 
same underlying main issue in the deposition.
    You had a situation in which the President of the United 
States says that he did not commit or have sexual relations 
with Monica Lewinsky under the definition as given by the court 
in the Jones case. That court included in its definition 
explicitly the touching of breasts or genitalia. Now, the 
President said, I didn't do that. He repeated it very carefully 
in the grand jury testimony.
    Monica Lewinsky said on nine occasions, in her sworn 
testimony before the grand jury, the President touched her 
breast, and on four occasions they had genital contact, and 
that all of this was to arouse.
    Now, the issue of corroboration, there are 10 corroborative 
witnesses. Interestingly enough, strangely enough, Monica 
Lewinsky talked contemporaneously with family members, friends 
and relatives about these matters in great detail, and we have 
10 of those whose testimony is before us, in sworn testimony. 
Seven of the ten corroborate the explicit detail with regard to 
this touching under the definition of sexual relations that 
Monica Lewinsky describes.
    Now, it seems to me that that kind of corroboration is 
precisely the kind of corroboration that would, in fact, 
engender a prosecution, would give confidence to a prosecutor 
to take perjury cases forward, and would, indeed, give a high 
probability of conviction if this were taken before a court in 
any case--any court in this land. The jury would be hard-
pressed not to convict under those circumstances. So it strikes 
me as very strange that we are dismissing this.
    Nobody, nobody on this panel and nobody yesterday, has 
mentioned the fact that these corroborating witnesses exist. It 
seems to be something that the President's advocates simply 
want to ignore. It is a bottom-line question in here, Mr. 
Davis.
    Mr. Davis. I think I did address that.
    Mr. Sensenbrenner [presiding]. The gentleman's time has 
expired.
    The gentleman from Massachusetts.
    Mr. Nadler. Mr. Chairman, Mr. Chairman, Mr. Chairman, 
before the gentleman from Massachusetts, I request recognition 
for a moment.
    Mr. McCollum. Regular order.
    Mr. Sensenbrenner. For what purpose does the gentleman from 
New York seek recognition?
    Mr. Nadler. Mr. Chairman, the question that Mr. McCollum 
just asked the witness is perhaps the central question of this 
case.
    Mr. Frank. I will give him time to answer. I was just about 
to do that.
    Mr. Sensenbrenner. With yielding to continue on the debate, 
that's going to mean that we are going to be here until 
midnight. The Chair will enforce the clock and the rules that 
were laid down by Mr. Hyde at the beginning of this hearing. If 
further members down the list want to have questions answered 
when the time has run out, they can decide to use their time to 
do that.
    The gentleman from Massachusetts is recognized.
    Mr. Frank. Anybody want to answer that question?
    Mr. Davis. Yes, I would like to answer that.
    I think that there are reasons why that prosecution would 
not win. One is, as I said in my statement, that both 
witnesses, including Ms. Lewinsky, had an incentive to lie, and 
she had an incentive to lie not only to the grand jury on this 
issue, but to her confidants, because otherwise she would be 
acknowledging an unreciprocated sexual relationship.
    But just as important, if you are talking about one witness 
that Mr. Starr or any prosecutor is going to put forward, Mr. 
Starr and his prosecutors themselves are going to have to argue 
in this case that Ms. Lewinsky's testimony on other issues is 
not accurate. They are going to have to argue that. They are 
going to be in a position where theyare going to have to say 
she is telling the truth as to this, not telling the truth as to other 
things.
    Also, Ms. Lewinsky in her testimony at various times said 
she had a similar definition of sexual relations. So I think 
that if you look at this from the perspective of a trial lawyer 
in terms of how this would play out, I think this would be 
really an impossible case to sell.
    Mr. Frank. Mr. Davis, you have convinced me. We will go on 
to the next issue. I think that's absolutely right. All of 
those corroborating witnesses corroborate only what Ms. 
Lewinsky had told them. No one has yet alleged that there was a 
kind of a Peeping Tom slot outside the Oval Office where they 
would have made any observation that would have made them in 
any way relevant to the trial.
    We also ought to note, telling the truth was not the most 
noticeable characteristic of this set of interrelationships. 
But, I mean, I think the guy with the lamp in there, he would 
still be outside looking for someone to talk to as he got 
involved with all of them.
    Ms. Lewinsky was herself threatened with prison, as was her 
mother, and I know Mr. Starr's penchant for threatening people 
with prison if they did not say bad things about the President 
has some credibility relevance.
    But I wanted to--just also want to talk about Judge Nixon. 
I am reading from the majority, and the gentleman from 
Wisconsin said he perjured himself only about--or he didn't say 
only. He perjured himself about an oil and gas deal. But I am 
reading from the majority's report, which the majority issued 
earlier this year and staff kindly gave to me. On pages 9 and 
10, Judge Nixon lied about whether he had discussed the case 
with the State prosecutor and had influenced the State 
prosecutor to essentially drop the case.
    In other words, the underlying issue here was not simply a 
private oil and gas deal, but a Federal judge intervening with 
a State prosecutor to get him to drop the case, and that is why 
I was particularly interested in Mr. Weld's presentation and 
others.
    One of the arguments we have had here is that looking at 
the underlying issue in a perjury allegation is somehow to 
traduce the law and to undercut it. And I would like to ask all 
of you--because I think this becomes now a central issue in 
this case--when you are deciding how to deal with allegations 
of perjury--and I don't believe that anybody would be able to 
prove grand jury perjury. I do think that with regard to the 
deposition, it would be easier, and the President did, 
unfortunately, in my judgment, when he said he couldn't 
remember being alone, transgressed. But on the question about 
whether or not you take into account the underlying issue, in 
the case of Judge Nixon, the underlying issue was talking to a 
State prosecutor and intervening to get his partner's son's 
conviction lessened, I think very different.
    This is the central case: As prosecutors, all of you, is it 
wrong to take into account the underlying cause where there is 
a perjury allegation? Mr. Weld has said that in his experience, 
perjury is usually a way to get at a broader issue. So let me 
start with Mr. Weld.
    Mr. Weld. Well, I agree, Mr. Congressman. I think the 
underlying conduct is important. I mean, I would agree in a way 
on the law with Representative Sensenbrenner, Representative 
McCollum. I do think that false statements to a grand jury can 
easily be grounds for impeachment.
    I think I had the Judge Nixon case for a while when I was 
at Justice, and my recollection is that there was clouds of 
corruption in the background of that.
    Mr. Frank. And in the foreground.
    Mr. Weld. And perhaps in the foreground of that case. So I 
think looking at the underlying conduct, that's another way of 
saying what Mr. Dennis, Mr. Noble, others have said, that there 
is a test of substantiality, Mr. Davis said it as well, in 
assessing the totality of circumstances and making a charging 
decision whether to go forward in a perjury case. And it is 
really more a substantiality than a materiality that I think 
might be the rock you run up against.
    Mr. Frank. Thank you, Mr. Weld.
    Let me just say in closing, that is a point I wanted to 
make, and I was particularly grateful to the former Governor of 
my State for making it, as a man who understands the broader 
democratic, with a small ``D,'' implications here. He made a 
very important point when he acknowledged the President has 
been tarnished. Bill Clinton is a man who clearly thinks a lot 
about how he is going to be regarded, and the argument that 
somehow he will be walking away unpunished if he is censured 
and has had this and other proceedings, I think, is very 
inaccurate. I appreciate Mr. Weld bringing that up.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Pennsylvania, Mr. Gekas.
    Mr. Gekas. I thank the Chair.
    Mr. Sullivan, you have repeated today what we have heard in 
different ways over the months of this controversy, that the 
President is neither above the law nor below the law, implying, 
I believe, on your part that if it were an ordinary citizen, 
not the President of the United States, that this case would 
have been dismissed out of hand, and therefore the same premise 
should have been accorded to the President because he is not 
below the standard or above the standard that you would apply 
to an ordinary citizen.
    I see such a big difference that it is hard for me to 
articulate it. But suppose the ordinary citizen, in your set of 
circumstances, had pleaded the Fifth Amendment, you would have 
undoubtedly honored that, and then we may never have heard of 
it all, that case, in the body politic. And I would submit that 
the Fifth Amendment is pleaded regularly across the land, and 
we never get results from that kind of case. But if the 
President of the United States had pleaded the Fifth Amendment, 
you would agree that there would have been headlines across the 
world, and that there would have been a shaken seat of 
government in Washington, D.C., or don't you think that would 
have been as dramatic as I think it would have been?
    Mr. Sullivan. If the President, instead of testifying in 
the grand jury, had taken the Fifth Amendment, I am certain it 
would result in a great deal of publicity, probably adverse. I 
don't think that it changes the issue of whether he is above or 
below the law.
    Mr. Gekas. But my point is that you are asserting with me 
that this high-profile case that would have been a result of 
the President pleading the fifth amendment makes it a different 
situation.
    It is possible, I believe, that the Congress, that the 
House, could begin impeachment proceedings if that alone had 
happened, the pleading of the fifth amendment by the President, 
as being a political problem, a political affront to the system 
of government.
    Mr. Sullivan. Do you think taking the Fifth Amendment is a 
high crime or misdemeanor?
    Mr. Gekas. No, no, no, no. I am saying that----
    Mr. Sullivan. The Constitution gives everyone----
    Mr. Gekas. No, no, no, no.
    Mr. Sullivan [continuing]. The right to assert the Fifth 
Amendment, and the jury is instructed that they are not to take 
any inference from that.
    Mr. Gekas. What I am saying to you, sir, is that in 
pleading the fifth amendment, it becomes a high-profile case.
    Mr. Sullivan. There is no doubt about that.
    Mr. Gekas. And----
    Mr. Sullivan. I am sorry if I interrupted you.
    Mr. Gekas. If the President did so, you can't argue that 
case. You already admitted it is a high-profile case.
    Mr. Sullivan. Of course, but I don't think it is relevant 
here.
    Mr. Gekas. Well, I am asking questions concerning it.
    Mr. Sullivan. Go ahead.
    Mr. Gekas. The fact that it becomes a high-profile case 
means that when the President of the United States takes some 
kind of legal action like committing false--or stating 
falsehoods under oath, that we cannot treat it as just another 
case, but whether or not the President attacks the system of 
government that is so important to us.
    Governor Weld makes a great deal out of the fact that what 
the President did, no matter how we couch it, is not an attack 
on the system of government. Yet, we submit, many of us, that 
when he undertakes to make false statements under oath, that he 
is directly attacking two segments of our system of government: 
One, the rights, the constitutional rights, of a fellow 
American citizen who has instituted a case in which he, if he 
did those falsehoods, was trying to destroy that individual's 
right to pursue a case. That is an attack, some of us might 
conclude, against our system of government. And, secondly, in 
affronting the judicial system, the other third branch of 
government, by directly giving false statements under oath, 
could be considered, could it not, as an attack on the delicate 
balance of separation of powers, his disdain for the judicial 
system?
    We have to take that into consideration, do we not, 
Governor?
    Mr. Weld. It could be so considered, Mr. Congressman. Those 
arguments, while fair on their face, strike me as on the 
technical side, but I understand what you are saying.
    Mr. Gekas. I thank you. I have no further questions.
    Mr. Sensenbrenner. Okay. The gentleman from New York, Mr. 
Schumer.
    Mr. Schumer. Thank you, Mr. Chairman.
    First, I want to compliment this panel. I think it was an 
extremely strong and erudite presentation from all five of you. 
It was an excellent panel, and I appreciate your putting the 
time and effort into it.
    When I look at where we are headed here, I think there is 
sort of three levels of argument. The level we addressed 
yesterday was dispositive for me and for some of us, and that 
is that even if you assume all of Mr. Starr's facts to be true, 
and that the President did wrong, however one would define that 
wrong, it does not rise to the level of high crimes and 
misdemeanors and doesn't merit impeachment. I think that case 
was made very well yesterday by the first panel.
    The second level of the case would be both--the next two 
levels relate to you folks, and that is if you assume the 
opposite, that if Starr's facts are correct, if Mr. Starr's 
facts are correct, then impeachment is warranted, there are two 
parts to that. One are the abuse of power and obstruction of 
justice charges, which seem to most, myself included, to be at 
a higher level, and the next go to the perjury charges. So let 
me ask you about each of those.
    First, on the abuse of power charge, which even many on 
this committee feel went too far, do any of you think there is 
any merit to that charge being filed, whether it be--well, you 
can't even make the case to a citizen because it relates to the 
President being President. Do any of you feel that charge has 
any merit whatsoever?
    Okay. Let the record show that nobody did, and I don't want 
to spend much time on that.
    On the obstruction of justice, there seem to be three 
specific areas that at least Mr. Starr talked about. One was 
the finding of--the attempt to find Ms. Lewinsky a job; the 
second, the discussions between Ms. Lewinsky and the President 
about what they would say if confronted with their 
relationship; and the third about Ms. Currie's testimony and 
so-called being coached about that testimony.
    When we examined that, and when I questioned actually Mr. 
Starr himself about those, and I asked him what greater 
evidence did he have to the President making a determination 
that he wished to influence the judicial process as opposed to 
not having his wife, his friends, his staff, the Nation find 
out about his relationship, Starr didn't point to any evidence. 
It was simply surmise.
    Would any of you care to comment on that group of charges?
    Mr. Sullivan. Mr. Schumer, can I answer the one about Mrs. 
Currie?
    Mr. Schumer. Mr. Sullivan, yes.
    Mr. Sullivan. Because that's the one that I didn't allude 
to in my statement.
    Mrs. Currie testified that the President came and asked her 
some questions in a leading fashion, is 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 and agreed with him.
    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 are going to say this, you are going to 
say this, you are going to say this. It doesn't make a 
difference if you have got two participants to an event and you 
try to nail it down.
    Mr. Schumer. Do all of you agree with that, with the Currie 
matter?
    And on the other two, the Lewinsky parts of this----
    Mr. Davis. I think to some degree----
    Mr. 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--to have the two of them coordinate their stories, 
that is, the President and Ms. Lewinsky, if there were not the 
faintest scintilla of any legal proceedingscoming 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 are right, and also the problem a 
prosecutor would face would be that in these cases there is a 
relationship between these people unrelated to the existence of 
the Paula Jones case.
    Mr. Schumer. Correct.
    Mr. Davis. Not just the----
    Mr. Schumer. Mr. Weld, do you agree with that?
    Mr. Sensenbrenner. The gentleman's time has expired. I am 
sorry, Mr. Schumer, your time has expired.
    Mr. Schumer. Can I just ask for a yes or no answer on that?
    Mr. Sensenbrenner. Can you answer that yes or no, Governor?
    Mr. Weld. I think it is a little thin, Mr. Congressman.
    Mr. Schumer. Thank you.
    Mr. Sensenbrenner. The gentleman from North Carolina, Mr. 
Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    Good to have you all with us.
    Governor Weld, I have a handful of friends who reside in 
your State, and Democrats and Republicans alike, without 
exception, speak very favorably of you.
    Mr. Weld. Well, I have friends in your State, too, Mr. 
Congressman.
    Mr. Coble. Do they speak favorably of me, Governor?
    Governor, last fall you appeared on the Today Show and 
alluded to the possibility of resignation of the President. I 
am quoting in part here. You said, my sort of rule of thumb 
here, I think it comes down to this, if when the President goes 
to a high school and colleges and universities, really his 
strongest point, if he looks out at those kids, those students, 
and their teachers and sees a sea of signs that says, liar, 
liar, pants on fire, it is time to go.
    Governor, at this late stage of the game, what is your view 
on the possibility of resignation?
    Mr. Weld. Well, in a way I say this with a heavy heart, 
because I was troubled by the conduct at issue here, but I 
think that events have overtaken that possibility. I remember 
saying and thinking that the President would be well advised 
when he looked in the mirror shaving every morning to say, are 
people taking me seriously? Are they taking me seriously at 
home? Are they taking me seriously abroad?
    I was concerned that some international events that were 
happening around then were happening because of a perception of 
weakness at the core of the executive of the U.S. Government. 
But, you know, what happens the week after I deliver myself of 
these wise sentiments, the President goes to the United Nations 
and gets a standing ovation. Then he goes into the budget 
negotiation with members of the opposite party and by most 
accounts gets, you know, better than half a loaf. Then he has 
the Wye agreements on the Middle East. So it appears to me 
people are taking him seriously.
    Mr. Coble. Thank you, sir.
    Mr. Davis, in a Washington Post interview, you, comparing 
the impeachment process with Watergate, indicated that we are 
at an uglier political time now.
    Now much has been said about the late President Kennedy's 
sexual indiscretions that were not publicized, but, however, 
were commonly known, and many of those same people insist that 
those indiscretions would be publicized today. And I am not 
convinced, sir, that we are in an uglier political climate or a 
political time. I think, rather, the members of the media are 
probing more thoroughly and probing more consistently, and I 
think probably that may be why more attention is focused today.
    Let me ask you this, Mr. Davis: Would you--I started to say 
wouldn't you, but I would be speaking for you. Would you 
acknowledge that this committee's consideration of whether 
grand jury perjury and civil deposition perjury and potential 
witness tampering by the President--I am not saying that it 
happened, but assuming that it did--that it merits impeachment 
as a legitimate exercise for this committee? Would you 
acknowledge that?
    Mr. Davis. I think that it is appropriate for the committee 
to be conducting a review. I think that there are issues in 
terms of whether the committee can meet what I believe is the 
committee's burden, if it is going to decide that there should 
be impeachment, without really itself satisfying itself as to 
the credibility of some of the core witnesses like Ms. 
Lewinsky. But I think that once you received the referral, I 
think obviously it was appropriate for you to consider that 
referral and consider it seriously.
    Mr. Coble. Governor Weld, neither am I Tom Sullivan, but, 
Mr. Sullivan, this has been broached previously, but I want to 
broach it as well, you indicated that it was your belief that 
the average citizen probably would not be prosecuted under 
similar circumstances that are now before us. And it was 
referred to the--the two average citizens last week, one is a 
physician, one a basketball coach, appeared to sit where you 
are sitting now, and they, in fact, were prosecuted. I am 
inclined to think, Mr. Sullivan, and I am not--by no means am I 
taking you to task for this, but I think what you said may well 
be subject to interpretation.
    I think perhaps--and maybe it is because of the uglier time 
or the fact that the media is more focused now. I think 
probably that you would see more and more average citizens 
prosecuted for perjury, but I will be glad to hear from you in 
response to that.
    Mr. Sullivan. Well, Mr. Coble, I am aware of the fact that 
there are some few prosecutions for perjury arising out of 
civil matters.
    Mr. Coble. Mr. Sullivan, I hate to do it to you, but the 
time is up.
    Mr. Sensenbrenner. The time is up.
    Mr. Coble. Thank you, Mr. Sullivan.
    Mr. Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. Thank you, Mr. Chairman.
    Actually, the question I am most curious about is whether, 
Mr. Davis, if there had been a cooling off period, and if 
President Ford hadn't issued the pardon, what do you think Mr. 
Jaworski would have done?
    Mr. Davis. The answer is, I don't know. Indeed, the reason 
that in my memorandum I recommended a cooling off period and 
felt that we should defer that decision was because I thought 
the emotions at the time were too high, and one would have to 
balance the factors very carefully, including, as I said in my 
statement, whether the public interest in saying, we have had 2 
years of this, we need to get on to something else, and 
shouldn't we do that, and that a prosecution would drag things 
out.
    Mr. Berman. Well, I agree with the other comments. Ithink 
this panel has presented some very compelling testimony on all of the 
pitfalls in pursuing a perjury prosecution in this situation and raised 
doubts about whether all the elements of perjury are present in this 
case. We are not a courtroom. Some people keep trying to make that 
analogy. I thought the professors yesterday were a political body. This 
is a political process in many, many ways. The Founding Fathers would 
have given this process to the Supreme Court if they had wanted a 
strict legal analysis.
    So perhaps your testimony on the question of whether there 
would be a prosecution for perjury is less relevant to whether 
there are high crimes and misdemeanors here than it is to the 
question of whether one of the articles of impeachment should 
actually assert the conclusion, the legal conclusion, that 
perjury has been committed. And I would hope the framers of 
these articles would look at this testimony carefully in making 
that decision.
    The point that does interest me, for those who want to make 
an analogy to a legal proceeding, is this notion that even if I 
think, as a prosecutor, that I have probable cause to indict, 
and I believe that the accused is guilty and that if I know I 
can't get a conviction from an unbiased jury, I don't bring the 
case, develop that a little bit more. Is this a formalized 
process that prosecutors use? Where did you get this from?
    Mr. Sullivan. I can only speak from my experience as a 
prosecutor, but I have had situations where, not my assistants, 
but agents have said to me after discussion about the evidence, 
and we concluded that we cannot get a conviction or it is 
likely that we will lose, let's indict him anyway to show him. 
My response to that is, get out of my office and never come 
back.
    Mr. Frank. But you might tell that person to become an 
independent counsel.
    Mr. Berman. Yes, Mr. Weld.
    Mr. Weld. This is written into the Principles of Federal 
Prosecution, which is the handbook which guides Federal 
prosecutors, and what it says about the charging stage of the 
criminal justice process is that the prosecutor has to believe 
that there is sufficient admissible evidence, admissible 
evidence, to obtain from a reasonable and unbiased jury a 
conviction and to sustain it on appeal.
    Mr. Berman. As I understand, though, there is another 
provision in the Justice Department guidelines. If you were 
bringing a case in the South involving civil rights, where 
certain practices were prevalent, you wouldn't refuse to bring 
that case alleging crimes against a black victim simply because 
you had fears in the 1950s or '60s that an all-white jury might 
never convict? That wouldn't stop you from bringing the case?
    Mr. Weld. That is why it says ``reasonable and unbiased.''
    Mr. Berman. So you would have to conclude that the United 
States Senate was somehow not a reasoned and unbiased jury to 
apply that logic in this situation?
    Mr. Noble. May I respond? And let me quote you from the 
Justice Department guidelines because they use precisely that 
example and they say: ``For example, in a civil rights case or 
a case involving an extremely popular political figure, it 
might be clear that the evidence of guilt viewed objectively by 
an unbiased fact-finder would be sufficient to obtain and 
sustain a conviction if the prosecutor might reasonably doubt 
whether the jury would convict. In such a case, despite his or 
her negative assessment of the likelihood of a guilty verdict 
based on the factors extraneous to an objective view of the law 
and the facts, the prosecutor may properly conclude that it is 
necessary and desirable to commence or recommend prosecution 
and allow the criminal process to operate in accordance with 
its principles.''
    Chairman Hyde. The gentleman's time has expired. The 
gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you. I have an observation and then a 
question for Governor Weld.
    I have to say that I fundamentally disagree with the 
premise of this panel, which is that the President should be 
considered ``an ordinary citizen.'' And therefore I disagree 
with their conclusions. To me, the President has a special 
responsibility that goes beyond that of an ordinary citizen. He 
holds the most powerful position in the world. He is the number 
one law enforcement official of our country. He sets an example 
for us all. Other people in other positions of authority, such 
as a business executive or a professional educator or a 
military officer, if they had acted as the President is alleged 
to have acted, their careers would be over, and yet they don't 
hold near the position of authority that the President does.
    Let me read a statement from the rules under which 
President Nixon was tried for impeachment. It says, ``The 
office of President is such that it calls for a higher level of 
conduct than the average citizen in the United States.''
    Because of the President's special authority, I think it 
makes the charges against him more serious; and therefore, in 
my judgment at least, demands that any punishment be more 
severe.
    Let me go, Governor Weld, to my question to you, and on the 
way there let me compliment you for offering a well-thought-out 
alternative to impeachment; and that is not to say I agree with 
it, it is just a well-thought-out alternative.
    I want to read a couple of statements from students at 
Roxbury Latin School, which I am sure you know is a school in 
Boston. This is a column that appeared in the Boston Globe that 
was written by their headmaster, and apparently he conducted a 
couple of school forums, and this was for students aged 12 to 
18, and suggested that they accept the President's statement of 
regret. He said they would have none of it, and then he 
generalized their reactions, which I want to read, and these 
are quotes:
    ``You've got to be kidding. This wasn't some one-time lapse 
in the face of sudden and unexpected temptation. The President 
did this over and over, plotting meetings with Monica Lewinsky 
in the White House, including one on Easter, just after he was 
pictured coming out of church, Bible in hand. Clinton lied 
passionately, looking us in the eye; then he played word games, 
but he never told the truth until he was caught.''
    ``Cheating by students usually results in suspensions. 
Repeat cheating brings expulsion. Clinton cheated repeatedly. 
The only difference is that Clinton is a lot older than we are, 
supposedly a lot wiser, and he holds the highest public office 
there is.''
    ``Maybe we are naive, but people our age want to look up to 
the President. What we see when we look at Clinton is someone 
who can't control himself and lies to his fellow citizens.''
    Governor Weld, aren't those students generally right in 
their assessments?
    Mr. Weld. I don't think that anybody is saying that this is 
a day at the beach or a walk in the park. This is not a strong 
outing by the President, and I find those statements as 
depressing as you do. And as I was discussing with Mr. Coble a 
moment ago, if that kind of attitude and reaction had persisted 
in the citizenry at large--
    Mr. Smith. I understand your answer, and I appreciate it. I 
yield back the balance of my time.
    Chairman Hyde. I thank the gentleman.
    Mr. Boucher.
    Mr. Boucher. Thank you very much, Mr. Chairman.
    I would like to join with you and the other members who 
have congratulated this panel on what I think is a very 
excellent presentation this morning, and I would like to join 
in the welcome of these distinguished witnesses.
    Mr. Weld, I was very interested in your statement, with 
which I wholly concur, that the intent of the impeachment power 
was to protect the public interest and that the standard that 
Congress should apply in determining whether acts of the 
President constitute impeachable conduct is the public 
interest, and your further statement that impeachment should 
not be deemed to be a punishment for individual misconduct or 
the punishment can occur in the court in the regular course. 
You cited the constitutional provision that says that for any 
crimes that are committed during the tenure of the presidency, 
the President can be indicted and tried just as any other 
American.
    I gather, however, from the thrust of the testimony of this 
panel of witnesses that perjury prosecutions in civil actions 
are rarely undertaken. I gather also that perjury prosecutions 
generally, while undertaken on occasion, are not the first 
resort of prosecutors in most cases. But in this particular 
instance, there is yet another avenue in which the President 
potentially could be sanctioned for any misconduct that may 
have occurred in his testimony under oath. And that is in the 
U.S. district court in Arkansas which had jurisdiction of the 
Jones case, it is--it has been suggested by a number of 
witnesses before this committee that that judge retains 
jurisdiction even though the case itself has now been formally 
dismissed by the 8th Circuit Court of Appeals, and that if she 
decides it is appropriate to do so, that she could impose 
sanctions based on any misconduct that may have occurred in the 
deposition that was taken in her court.
    I would like the opinion of these witnesses with regard to 
whether or not that is an accurate statement of the 
jurisdictional posture of that case, does she have the 
jurisdiction to do that? And based on your very extensive 
experience with regard to criminal prosecutions, do you think 
there is a probability or likelihood, or how would you rate the 
chances that if she deems that misconduct occurred there, that 
she might be led to impose sanctions? That might be the more 
probable way in which some sanction occurs as opposed to a 
criminal prosecution.
    Mr. Sullivan. There is under the United States Supreme 
Court decisions, inherent power in the District Court in civil 
cases to impose sanctions for misconduct occurring before the 
court. There is no question about that. That case was decided 
several years ago.
    Your second part was what would happen if she were to do 
that. Not having brought my crystal ball with me, I can't tell 
you. But she does have that power to pursue that, so far as I 
know. I do not know whether the dismissal of the case 
terminates that power. That is an issue I really haven't looked 
at.
    Mr. Boucher. Does anyone else have a comment on that issue?
    Let me ask this additional question.
    Mr. Noble, I was very interested in your saying that this 
Congress should consider, in deciding whether or not to vote 
articles of impeachment, the effect that the House voting 
articles of impeachment and the Senate being put to trial would 
have on the country, the further polarization that would occur, 
the diversion of the President and the Congress from their real 
responsibility which is attending to our national agenda, the 
potential immobilization of the Supreme Court while the Chief 
Justice presides, the lowering of the standard of impeachment 
in future years. I am concerned that in fact some Members of 
this Congress, not fully having considered those effects, may 
have decided to apply a lower standard to determining whether 
or not articles of impeachment should be approved and believe 
perhaps the House should act as a grand jury and simply vote on 
probable cause.
    Do you agree that there ought to be a higher standard than 
probable cause for us to consider this weighty matter?
    Mr. Noble. Yes. This follows on Mr. Smith's comment. It is 
clear that before the public, the President is not an ordinary 
citizen. It is clear that before Congress, the President is not 
an ordinary citizen. It is clear that any rational criminal 
investigator or Federal agent investigating an allegation of 
perjury by a President of the United States is not going to 
treat it like an ordinary case. It is clear based on everything 
that we have heard, that most of us believe, without looking at 
specific evidence, that the President either did perjure 
himself or didn't perjure
    himself.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Noble. I will wait.
    Chairman Hyde. Thank you. The gentleman from California, 
Mr. Gallegly.
    Mr. Gallegly. Thank you, Mr. Chairman. Thank you for being 
here this morning, gentlemen.
    Mr. Sullivan, do you believe that the knowing and willful 
misleading of a judge or Federal grand jury represents an 
effort to thwart the judicial system from discovering the 
truth?
    Mr. Sullivan. It sounds like what you said is correct, if I 
understand it.
    Mr. Gallegly. The evidence indicates that the President and 
Ms. Lewinsky had three conversations about her testifying in 
the Jones case within 1 month before his deposition. When the 
President was asked, ``Have you ever talked to Ms. Lewinsky 
about the possibility that she might be asked to testify in 
this lawsuit,'' he answered, ``I'm not sure.''
    Governor Weld, you know the President pretty well, do you 
think it's reasonable to believe that the President completely 
forgot about these three conversations?
    Mr. Weld. I really don't know, Mr. Congressman.
    Mr. Gallegly. Thank you, Governor.
    When the President was asked, ``At any time were you 
andMonica Lewinsky together alone in the Oval Office,'' he answered, 
``I don't recall.'' The evidence indicates that he was, in fact, alone 
with Ms. Lewinsky on many occasions, including the time that he 
exchanged gifts less than 20 days before the deposition.
    Mr. Sullivan, for this not to be perjury, the President 
must have genuinely forgot his numerous encounters with Ms. 
Lewinsky, for it not to be perjury, is that correct?
    Mr. Sullivan. Evidence in a perjury case requires proof 
beyond a reasonable doubt that the defendant not only made a 
false statement, but knew it was false at the time it was made; 
that is correct.
    Mr. Gallegly. And the test would be that he genuinely 
forgot in order for that not to be perjury?
    Mr. Sullivan. That is my understanding.
    Mr. Gallegly. Thank you very much, Mr. Sullivan. The 
President's action of being less than truthful has caused and 
continues to cause serious problems. I am concerned that his 
lying affects the ability of the American people to trust the 
highest elected official in the land. One of my constituents 
called me yesterday, a constituent by the name of Les Savage. I 
have never met this gentleman before, but his question was very 
sincere: How do we know when the President is telling the 
truth, and how do leaders of other countries around the world 
know when President Clinton is telling the truth?
    President Clinton has had many occasions to come clean, and 
to date I don't believe he has. The President's failure to 
present any substantive evidence is consistent with his obvious 
lack of concern about how serious the offense of lying under 
oath truly is.
    Mr. Chairman, I yield back.
    Chairman Hyde. The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. Before my 5 minutes 
begin, I have a parliamentary inquiry.
    Chairman Hyde. State your inquiry.
    Mr. Nadler. Thank you. A few weeks ago when Mr. Starr was 
here in answer to a question I asked, he referred to a court 
case which was then under seal, and I was not able to 
characterize his--I felt myself unable to characterize the 
accuracy of his statement about that case lest I be accused of 
violating the seal.
    A few moments ago Mr. McCollum referred to the same court 
case, which is no longer under seal but which is within the 
possession of this committee in executive session. Would I be 
violating the confidentiality rule if I were to state that Mr. 
McCollum misquoted and misstated what the court found and that 
the court did not conclude that the President's testimony about 
Lewinsky was material to the Jones litigation, but rather found 
that the truthfulness of Monica Lewinsky's affidavit was 
material enough to her motion to quash her subpoena in that 
case to justify the OIC's issuance of a grand jury subpoena to 
her lawyer, and that this is a distinct issue from whether the 
Jones deposition was material to that case? And if I were not 
permitted to state that, why is Mr. McCollum permitted to quote 
this case?
    Chairman Hyde. You will be provided with a copy of the 
opinion.
    Mr. Nadler. Am I permitted to state this?
    Chairman Hyde. I am told that you have mischaracterized Mr. 
McCollum.
    Mr. Nadler. Since that----
    Chairman Hyde. You can say anything that you want, but I am 
suggesting that you will get a copy of the opinion very 
shortly, and I am suggesting that you read it before you make 
statements about it. But that is up to you.
    All right, now your 5 minutes start.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, I should note that I have written to the 
Attorney General, asking that Mr. Starr be disciplined for 
breaking the confidentiality of that case when he 
mischaracterized it 2 or 3 weeks ago.
    Let me ask Mr. Davis, I think, starting off, you have 
stated very carefully and clearly in your testimony that really 
no prosecutor would prosecute a perjury case on the basis of 
the evidence that we have before us from the Starr referral; 
that there are holes and there is no likelihood that a jury 
would convict. You have said, for example, that you wouldn't 
bring a prosecution of perjury based on two conflicting 
statements of two witnesses, one of whom disagrees with the 
other, that the alleged corroboration that Mr. Starr cites from 
Monica Lewinsky's testimony is not corroboration at all because 
that corroboration that she told 10 or 11 friends and relatives 
of hers the same thing; that she had a motive to falsify or 
embellish the statement; and in fact I think law school tells 
us that such a statement would be inadmissible in a court as 
hearsay and prior inconsistent statements in any event.
    First of all, do I characterize your testimony correctly?
    Mr. Davis. Generally, yes.
    Mr. Nadler. Thank you. Secondly, some people on the other 
side here have talked about the President being impeachable not 
only for perjury but for a lesser crime; if perjury isn't a 
high crime and misdemeanor and a great offense threatening the 
safety of the Republic, maybe false statements under oath are. 
Would the same or similar constraints prevent a successful 
prosecution under these circumstances with this evidence of 
false statements under oath as would prevent the successful 
prosecution for perjury?
    Mr. Davis. Yes. The false statement under oath section of 
the U.S. Code, while it formally eliminates the so-called two 
witness rule, the same prosecutorial judgment would come into 
play in which you would have to assess can you win the case. 
And for the reasons that I articulated before, it seems to me 
that with the one-on-one testimony and with the fact that Mr. 
Starr would have to disassociate himself and criticize Ms. 
Lewinsky's testimony and say that it is not true in various 
regards would make such a prosecution, in my view, doomed to 
failure.
    Mr. Nadler. For false statements under oath as well as for 
perjury?
    Mr. Davis. That is correct.
    Mr. Nadler. And again to summarize, Ms. Lewinsky is a weak 
witness because the special prosecutor would have to point out 
that she lied under oath in some other place?
    Mr. Davis. In the grand jury context, she is the witness as 
to the core perjury.
    Mr. Nadler. And it is further weakened by the fact that the 
alleged corroboration witnesses would be inadmissible in any 
court as hearsay?
    Mr. Davis. They would probably be inadmissible. There may 
be some arguments that they could come in at some point, 
depending on cross-examination, but the point is whatever 
motive she had to falsify in the grand jury, the same motive 
would exist.
    Mr. Nadler. So in other words if I want to falsify 
orembellish my statement or have a fantasy or lie, the fact that I lied 
to 12 people doesn't make it any less of a lie than if I lied to only 
one person?
    Mr. Davis. That is correct.
    Mr. Noble. Can I talk about that for just a minute, because 
it is very important? A good prosecutor is going to try this 
case with the defense theory in mind, which is going to be can 
I prove that the President did what she said that the President 
did. She is going to be impeached for every prior inconsistent 
statement she has, but the person is not going to cross-examine 
her, and make it seem as though her testimony was recently 
fabricated because that way she can bring in every prior 
statement. All of us ought to worry about someone lying about 
us to a thousand people and having that come in as admissible 
evidence, making what we lied about the first time was true if 
the motive to lie began in the very beginning. So for that 
reason--
    Mr. Nadler. And her motive did begin at the beginning?
    Mr. Noble. And her motive did begin at the beginning.
    Mr. Nadler. And that applies to false statements under oath 
as well as to perjury?
    Mr. Noble. That applies to false statements under oath as 
well as perjury. I tried a false statement case. I convicted it 
at the jury level. It was reversed on appeal because of a 
literal truth defense, the same defense that would apply here.
    Mr. Nadler. Mr. Smaltz, the special prosecutor in the Espy 
case, said an indictment is as much a deterrent sometimes as a 
conviction, so you might as--
    Chairman Hyde. The gentleman's time has expired. The 
gentleman from Florida, Mr. Canady.
    Mr. Canady. I want to thank all of the members of this 
panel for being here today. You have done a good job in 
presenting what I believe are some of the best arguments in 
defense of the President. I understand that is why you are 
here, and we appreciate your perspective on this.
    I have agreed with some of the points that have been made, 
obviously I disagree with some of the others, but when we talk 
about prosecutorial discretion and the question that a 
prosecutor has to ask about whether he can have some 
expectation of winning before a jury, I think that is right. I 
think that is an appropriate way for a prosecutor to view the 
case.
    My judgment about the facts of this case differ from yours 
based on what I have seen to date, because I think there is 
compelling evidence here that points to the conclusion that the 
President engaged in a pattern of lying under oath and other 
misconduct. But on the standard for prosecution, I think you 
have raised some good and valid points, but I want to quarrel a 
little bit with the application of that in this context. The 
argument has been made that in essence we in the House should, 
in carrying out our responsibility, look to the Senate and make 
a guess about how the proceedings would turn out in the Senate 
to determine how we exercise our responsibility under the 
Constitution. I would suggest to you I don't think that is a 
proper way for us to proceed. I believe that we have an 
independent responsibility under the Constitution to make a 
judgment concerning the conduct of the President and whether he 
should be impeached or not, and it would be in derogation of 
our constitutional responsibility to attempt to count noses in 
the Senate. But I will have to say that it is a very difficult 
thing to count noses in the Senate anyway, and in a proceeding 
like this it is hard to predict the outcome. I don't think that 
this is a proper undertaking for us to be involved in.
    I would also point out that the very structure of the 
Constitution indicates that in the Constitution the framers 
provided that the House could impeach with a simple majority. 
They provided that conviction in the Senate would have to be by 
a two-thirds majority. I would suggest to you that that 
structural feature of the Constitution suggests that the 
framers would have contemplated circumstances in which the 
House might very well impeach but the Senate would not convict, 
and I think that is obvious on the face of the documents.
    Some of these arguments have to be brought to the text of 
the Constitution and evaluated in that light.
    On the issue of prosecutor discretion, let me pose a 
scenario here which I think is very analogous to what we have 
before us. Suppose the chief executive of a Fortune 500 
corporation, a major national corporation in the United States, 
was accused of sexual harassment and the corporation had been 
sued, and in the course of the discovery in that case, the 
chief executive of that major national corporation lied under 
oath to impede that civil rights action. Now, I believe that 
the fact that the chief executive of a major national 
corporation was engaged in that conduct would be a relevant 
consideration for the prosecutors who were evaluating the case 
and whether to bring it, because of the impact of that conduct.
    I do believe that bringing prosecutions have a deterrent 
impact, and that is one of the considerations that has to be 
factored into prosecutorial discretion. So I think if we step 
back from this situation, and again we can argue about the 
weight of the facts and I understand that you disagree with the 
evaluation that some of us may have made about the weight of 
the facts here, but if the President of the United States did 
engage in obstruction of justice and committed multiple acts of 
lying under oath, I think that we have to look at that conduct 
in light of the consequences that it has and the message that 
it sends, just as we would look at the conduct of the chief 
executive of a major national corporation who was the defendant 
in a civil rights case brought against that corporation. I 
think that is something to look at.
    There is really not time for you to respond, but do you 
disagree that this sort of high-profile case has to be 
evaluated in light of those circumstances?
    Mr. Dennis. The analogy isn't quite there. If you were 
looking at the President of a Fortune 500 corporation, you 
would be talking about a suit that was brought by someone prior 
to them taking that position and----
    Mr. Canady. No, absolutely not. He could have been guilty 
of that in the course of his conduct as chief executive.
    Mr. Dennis. The issue of materiality has been discussed 
here, and that is where the nub of it is. The Jones matter was 
prior to the President becoming President of the United States. 
We are not talking about issues of how the President deals with 
subordinates in that respect. That makes a huge difference in 
terms of how that person should be perceived insofar as these 
kinds of charges.
    Chairman Hyde. Thank you. Mr. Scott.
    Mr. Scott. Mr. Sullivan, in your prepared testimony yousaid 
no serious consideration would be given to a criminal prosecution 
arising from alleged misconduct in discovery in the Jones civil case 
having to do with alleged coverup of a sexual affair with a woman or 
the follow-up testimony before the grand jury; it simply would not have 
been given serious consideration for prosecution, it wouldn't get in 
the door; it would be declined out of hand.
    Are you aware that we are not straight as of now as to all 
of the allegations, specific allegations of perjury; that even 
yesterday the gentleman from Arkansas specified a different 
statement that he believed to be perjurious? ABC News said that 
the Republicans--on December 7 said that the Republicans might 
shy away and come up with new charges than the grand jury.
    Is it fair to have an accused respond to a perjury charge 
without stating with specificity what the statement is that was 
false?
    Mr. Sullivan. No.
    Mr. Scott. Thank you.
    Mr. Noble, in fact-finding, is there a problem using 
conflicting grand jury testimony, copies of FBI interview 
sheets, and prior consistent statements in order to make a case 
against an accused?
    Mr. Noble. I believe there is a problem using only those 
bases for making prosecutorial decisions, yes.
    Mr. Scott. Why is conflicting grand jury testimony and 
copies of FBI interview sheets inherently unreliable as 
testimony?
    Mr. Noble. Because our system of justice is based on 
testing the testimony of someone under oath in front of the 
finder of fact, subject to cross-examination, in a grand jury 
that doesn't exist. For that reason, prosecutors at the very 
least interview the principal witnesses themselves, try to test 
that witness as much as they can in terms of deciding whether 
or not he or she can withstand cross-examination; otherwise you 
just have hearsay.
    Mr. Scott. And because of that unreliability, you can't 
make a case just using grand jury testimony to make a case 
against someone?
    Mr. Noble. I say this with all due respect. Only a foolish 
or inexperienced prosecutor would attempt to indict and convict 
someone based on hearsay grand jury testimony.
    Mr. Scott. Thank you.
    Mr. Davis, in your testimony, on page 13 of your prepared 
testimony, right at the top, you didn't have time to go through 
the specifics of why the obstruction of justice case could not 
be made. Could you start at the top of page 13 where it says 
``but there are''----
    Mr. Davis. Yes.
    ``Another complicating factor in the obstruction of justice 
case which makes this such a difficult case to bring is the 
reality that the principal players in this drama, the 
President, Ms. Lewinsky and Ms. Currie, had relationships and 
motivations to act wholly unrelated to the Jones case. This 
kind of thing would seriously complicate the ability of a 
prosecutor to establish the intent to obstruct some official 
proceeding, which is required to prevail in an obstruction of 
justice case. Examples: The job search began before Ms. 
Lewinsky was on the witness list, and frankly there is nothing 
surprising that someone who had an illicit relationship with a 
woman would, when it is over, be willing and want to help her 
get a job in another city.''
    ``Ms. Currie had her own relationship with Ms. Lewinsky.''
    ``People who have an illicit relationship often understand 
that they will lie about it without regard to the existence of 
litigation, and here it appears that such an understanding was 
discussed prior to Ms. Lewinsky being identified as a potential 
witness.''
    ``The evidence, you know, about retrieval of the gifts is 
contradictory, with Ms. Currie and the President offering 
versions of the events which exculpate the President and which 
differs from Ms. Lewinsky's testimony. Ms. Lewinsky herself 
provided varying and sometimes exculpatory interpretations of 
these very events in terms of her testimony.''
    These are the kinds of things that make winning a case----
    Mr. Scott. Can you read the next paragraph?
    Mr. Davis. The reality at the time of the President's 
conversation with Ms. Currie in the immediate aftermath of a 
civil deposition: Ms. Currie was not a witness in any 
proceeding, and given the status of the Jones case, there was 
no reason to believe that she ever would be, and that the 
President was likely focusing on the likely potential public 
relations repercussions of his relationship.
    Also in response to an earlier comment, it is not a 
question of counting votes in the Senate. The issue is in 
thinking through the standard of whether to proceed at the 
House level, whether you think you have adequate evidence to 
prevail. You are making that judgment.
    Chairman Hyde. The gentleman's time has expired.
    The Chair will declare a 10-minute recess and I mean it, 
that is 10 minutes. Please come back. Thank you.
    [Recess.]
    Chairman Hyde. The committee will reconvene. I must say 
that the panel looks refreshed. That's good.
    Mr. Noble. On behalf of the panel, thank you, Mr. Chairman.
    Chairman Hyde. All right, Mr. Inglis is next.
    Mr. Inglis. Thank you, Mr. Chairman, and I want to thank 
the panel for being here. Mr. Sullivan, if this case, the facts 
of this case ever resulted in a prosecution of Bill Clinton 
after leaving the White House, would any of what we have heard 
this morning be admissible as a fact in a case involving a 
prosecution of Bill Clinton, a private citizen? Any of your 
testimony, would any of that be admitted as a fact in that 
case?
    Mr. Sullivan. No, absolutely not.
    Mr. Inglis. Would anything that anyone else has said here 
this morning be admitted as a fact in that case?
    Mr. Sullivan. Absolutely not.
    Mr. Inglis. I am keeping score, Mr. Chairman, as you know. 
So, Mr. Chairman, this makes panel 4, the fourth panel, Mr. 
Craig, no facts. And Mr. Craig said yesterday to us, in the 
course of our presentation today--that was yesterday--and 
tomorrow--that's today--we will address the factual, 
underlined, factual and evidentiary issues directly.
    The score now is zero to 4. Zero panels, zero witnesses 
dealing with facts. Everybody that we have heard from in these 
four panels has given conclusions, has given legal opinions. 
Not a single person has presented a fact.
    Mr. Sullivan, would a memorandum of law be considered a 
fact in a trial?
    Mr. Sullivan. Not unless--normally no, unless the issue 
arose out of that; but no.
    Mr. Inglis. If the memorandum of law was an issue, then it 
would be a fact?
    Mr. Sullivan. Correct.
    Mr. Inglis. So this 184-page document which really I think 
can only be described as a memorandum of law, possibly a brief, 
contains no facts, no facts in the case before us today.
    Mr. Sullivan. It is similar to the Starr report in that 
regard. They are about equal. They do deal with the facts, but 
there are no witnesses that you've heard to testify directly 
about the facts; whereas in a trial, the people would have to 
appear and give their testimony personally.
    Mr. Inglis. Of course the difference, which you have to 
concur with me, is that the Starr report is based on sworn 
testimony gathered by an independent counsel, which is the same 
facts that are discussed here; it is just that there you have a 
direct quotation of those facts and a summary of those facts; 
is that correct?
    Mr. Sullivan. Yes. I think that the White House submission, 
although I have not read all of it, I have read part of it, the 
part I read did deal in great detail with a lot of the facts, 
including a lot of the facts not highlighted in the Starr 
report.
    Mr. Inglis. But none of those are facts in the case. And 
the point that I am making is that again Mr. Craig yesterday 
made a very high bar for him to get over, and the thing that I 
find wonderful about these proceedings is really it is a rare 
opportunity to bring accountability to the White House spin 
machine. What happens, I think, with the spin machine is that 
the reporters get worn down, they get tired of trying to pursue 
it and they just accept it. But here we have accountability. 
Yesterday Mr. Craig said, in the course of the presentation we 
will address the factual evidentiary issues directly.
    The score is zero to 4. Zero of these panels, Mr. Craig, 
have addressed facts. All of them are doing what the other 
panels have done in times past. In other words--here again, 
very helpful discussion and I appreciate the time of all of 
these witnesses, but there is nothing new here. No new facts, 
no new evidentiary issues which have been addressed directly. 
And once again, though, we do have that the President had 
personally instructed you not to obscure the simple moral 
truth, but all this 184-page document is is more of the hair-
splitting, more of the legal technicalities that are so 
maddening in what the President has to say to us. That is what 
the 184 pages is.
    Chairman Hyde. The gentleman's time has expired. The 
gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. We got a 445-page 
referral from Independent Counsel Starr. Is there anything in 
those 445 pages in those form that would be admitted in a 
criminal case?
    Mr. Sullivan. No.
    Mr. Watt. So I suppose what Mr. Inglis has been talking 
about is what we have been talking about, we keep waiting on 
some facts to be developed here; and without that development, 
the score remains zero to zero, I take it, with the presumption 
of innocence being in favor of the President.
    Mr. Noble, you had a response?
    Mr. Noble. Yes, I would like to respond to the previous 
Congressman's comments.
    Mr. Watt. Before you go there----
    Mr. Noble. And in direct response to your comment, and that 
is, if it was a trial and the prosecution presented no 
admissible evidence, zero, not guilty, there would be no 
defense case.
    Mr. Watt. That's right. Now that brings me to the point 
that I wanted to make, because I got a call--everybody seems to 
be getting calls from constituents--and I got mine last week 
from a constituent who started out by saying that the President 
was engaging in a legal attempt to distinguish what he had said 
in some way, and I reminded the caller that this in fact is a 
legal proceeding that we are involved in. Is there anybody on 
this panel that disagrees with that?
    Okay.
    So the standards that are applicable in a legal proceeding, 
Mr. Sullivan, you refer to that as--on the first page of your 
testimony, you said, ``The topic of my testimony is 
prosecutorial standards under which cases involving alleged 
perjury and obstruction of justice are evaluated by responsible 
Federal prosecutors.''
    I take it that you are equating this panel to responsible 
Federal prosecutors. And what you are saying, I guess, I take 
it from your testimony this morning is, if a responsible 
Federal prosecutor wouldn't prosecute this case, then we ought 
not be moving it along to the Senate or to the House floor; is 
that--is that the essence of where you come down?
    Mr. Sullivan. I am not sure that I would presume on the 
issue of what your responsibility is.
    I am only saying that since your judgment here is high 
crimes and misdemeanors, that is the test, in my opinion a 
responsible Federal prosecutor would not bring a case based on 
these charges in the Starr report. Now, you can draw whatever 
conclusions you wish politically from that conclusion.
    Mr. Watt. Mr. Noble, what would be your response to that, 
and in the context of what some of my Republican colleagues on 
the committee have suggested ought be the standard under which 
we are evaluating this evidence?
    Mr. Noble. I believe, and I am not--I was not elected by 
anyone, not by prosecutors or citizens, to comment; but my best 
advice is that there is a lesson to be learned from the Justice 
Department. The parallels are quite striking. In the Justice 
Department before bringing a criminal prosecution, the hurdle 
is very low: probable cause. However, before getting a 
conviction, you need proof beyond a reasonable doubt.
    Here, in order for it to get voted out of this House, 
you'll need a majority. However, for a conviction to occur, you 
need two-thirds of the Senate. I believe you ought to look and 
think about what a rational fair-minded Senator would do, how 
he or she would vote. If you conclude that they would not 
convict, think about the precedent you would have set if after 
2, 3, 4, 5, 6, 7 impeachments and no convictions. You would not 
restore public confidence. If anything, you would undermine 
public confidence in the impeachment proceeding.
    Chairman Hyde. The gentleman's time has expired. The 
gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte, would you yield to me for just a question?
    Mr. Goodlatte. Sure.
    Chairman Hyde. Thank you. Maybe Mr. Sullivan----
    Mr. Watt. Mr. Chairman, on whose time are we operating?
    Chairman Hyde. Pardon? I'm sorry. I ask staff to do that, 
and sometimes they forget; they are so enchanted by my 
question.
    Mr. Watt. Thank you.
    Chairman Hyde. The question I was going to ask: When 
someone is granted immunity, as Ms. Lewinsky was, is it 
customary--and of course we can get the answer by looking at 
the immunity agreement--but is it customary that they are 
obliged to tell the truth thereafter; and if they lie or tell a 
falsehood about some substantial issue, that they forfeit their 
immunity? Is that the custom?
    Mr. Sullivan. There are two kinds of immunity, but the 
normal immunity, and I have not seen her agreement, is what is 
called ``use immunity,'' which means that any testimony that 
she gives which is not truthful could be used against her in a 
subsequent perjury prosecution.
    If she gets transactional immunity, she is entirely free, 
but that is not normally the case. It is usually use immunity. 
However, in my experience when the Federal prosecutors give use 
immunity to a witness, I don't like to say never happens, 
because that is usually wrong, but I just don't know of a case 
in which they have brought a prosecution----
    Chairman Hyde. I think the thing to do is see what the 
agreement held.
    Mr. Sullivan. Right. Generally the agreement requires 
truthful testimony, and you are subject to perjury prosecution 
if you do not give truthful testimony.
    Chairman Hyde. Thank you, Mr. Sullivan.
    I thank you, Mr. Goodlatte.
    Mr. Goodlatte. Governor Weld, when you were Governor of 
Massachusetts, if you were convicted of a felony that was 
serious, that included jail time, what would happen to you as 
Governor of the State of Massachusetts?
    Mr. Weld. I think you are out automatically, but I never 
got close enough to the border to focus on that question.
    Mr. Goodlatte. We hope not.
    But the point is I think that is true not only in 
Massachusetts but in virtually every State in the country if 
the chief executive is convicted of a felony, that he or she is 
automatically removed from office; and I do have the annotated 
laws of Massachusetts here in front of me, and that is exactly 
what they provide.
    In addition, it is my understanding that you would not be 
exempt from prosecution during the time that you served as 
Governor. In other words, the prosecution could go forward, you 
could be tried and convicted during that time, unlike the 
prevailing opinion with regard to the President of the United 
States?
    Mr. Weld. Sure, I think that is true.
    Mr. Goodlatte. If that were to occur, that would be a 
serious disruption of your duties as Governor of Massachusetts, 
to go through what conceivably could be a lengthy trial; but 
nonetheless the laws of that State and virtually every other 
State provide for that to be done to protect the public trust 
and the interest of the public in not having someone with a 
serious charge and subsequently a felony conviction serving in 
the office of highest trust of that State; is that correct?
    Mr. Weld. That's right. Actually one of the reasons that I 
resigned in 1997 was because the Mexican ambassadorship was 
taking up so much of my time, I didn't think that it was fair 
to the people to continue drawing a full salary. So a lengthy 
criminal proceeding would be problematic also.
    Mr. Goodlatte. If the judgment against the Governor is 
reversed at a later time, the Governor can be restored to that 
position unless it is so expressly ordered by the terms of a 
pardon. The President of the United States has the power to 
pardon, and the prevailing opinion is that the President can 
pardon himself. Are we all in agreement that the likelihood of 
any kind of subsequent prosecution of this case, regardless of 
your opinions of the merits, is not going to take place because 
of the reality of the circumstances that either for practical 
reasons after the President leaves office or because he could 
bestow a pardon upon himself, that that would take place?
    Mr. Weld. I cannot imagine the President pardoning himself. 
When I said that I thought that the post-term risk was low, 
that is because of my assessment of the merits of the 
prosecution case.
    Mr. Goodlatte. Nonetheless, he has that power and the 
Constitution is very explicit about the one exception to the 
use of that power, and that is in circumstances where the 
President is impeached. He cannot then pardon himself and 
restore himself to office as a result of an impeachment.
    Mr. Noble, in my last question, would you be able to keep 
your job as professor of law at New York University if these 
charges were brought forward before you and made known to your 
employer?
    Mr. Sensenbrenner [presiding]. Mr. Noble, you don't have to 
answer that because time is up.
    Mr. Conyers. Could he answer it if he wanted to?
    Mr. Sensenbrenner. I think so.
    Mr. Noble. I can't even imagine being accused of anything--
--
    Mr. Goodlatte. Professor Noble, I can't imagine you being 
accused of anything as heinous as this either, but nonetheless 
I think you would agree that you would not be able to hold that 
position.
    Mr. Sensenbrenner. The gentlelady from California, Ms. 
Lofgren.
    Ms. Lofgren. I believe the issue before the Congress is 
whether the behavior of the Chief Executive is so severely 
threatening to our constitutional system of government that it 
requires us to undo the popular will of the people and remove 
the executive and go through that trauma. That is the issue 
that faces us. However, not every person is analyzing this in 
the same way, the appropriate way. There are some who say that 
lying about sex, although deplorable, is not enough to impeach, 
but it is the crime of perjury that causes them to think that 
there ought to be an impeachment. Unfortunately for the 
President, there is no forum to address the issue, to defend 
against allegations of crime. People say those are 
technicalities, but that is what the criminal law is all about.
    I have been thinking about my late professor, Graham 
Douthwaite, my criminal law professor, who thought that in 
order to convict of a crime you had to prove every element of a 
crime, and that necessarily becomes technical. And in the case 
of perjury you have to have the person under oath, it has to be 
a statement about a material fact in the case, it has to be an 
unambiguous question, it has to be a knowingly false answer, it 
has to be actually false, and there must be competent evidence 
for all of those elements to get a conviction.
    For example, I recently--and I am not arguing this case--
read an article in the Legal Times and also in the American 
Lawyer Today that points out that the President wasprobably not 
actually under oath when he testified before the grand jury because the 
oath was administered by an officer who did not have the capacity to 
administer the oath; to wit, a prosecutor.
    There is a case on that, U.S. v. Doshian, which requires 
that in such a case, the case must be dismissed. If it was John 
Smith in court, any court in America, that case of perjury 
would have to be dismissed. It is a technicality, but that is 
what the criminal law is about.
    I went home this weekend and asked a friend who is a deputy 
district attorney whether a conviction could be had in this 
case, and the answer I got was ``no way.'' This could never 
yield a conviction if it were John Smith. And so I am 
wondering, Mr. Sullivan, could you help the American people, 
most of whom have the benefit of not going to law school, to 
understand and to appreciate why we have these technicalities 
and why it could be possible, if it was John Smith in court, to 
say something that was obviously misleading but that would not 
actually yield a criminal conviction? How could that be, and 
what is the point of that, Mr. Sullivan?
    Mr. Sullivan. The law has raised very, very high barriers 
against any citizen being convicted of a crime. The presumption 
of innocence, we have it in the United States, it is not common 
throughout the world, but we are really very privileged in many 
ways, and this is one of them. In perjury cases, you must prove 
that the person who made the statement made a knowingly false 
statement.
    Where I think the defect in this prosecution is, among 
others--and I don't think it would be brought because it is 
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 that 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 someone. I don't want to 
get too particular here.
    Ms. Lofgren. Thank you.
    Mr. Sullivan. 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. So that is my answer to 
that.
    Ms. Lofgren. Mr. Noble, you are an evidence professor. My 
time is up. Perhaps someone else can ask you about hearsay. I 
yield back.
    Mr. Sensenbrenner. I thank the gentlewoman from California 
for watching the red light.
    The gentleman from Indiana, Mr. Buyer.
    Mr. Buyer. I would like to respond to this frivolous 
argument about the oath that we just now heard.
    The President's deposition oath was administered in a civil 
deposition by Judge Susan Webber Wright, according to the court 
reporter who recorded the deposition.
    Federal Rule of Civil Procedure 28 specifies three types of 
persons before whom depositions may be taken within the United 
States: before an officer authorized to administer oaths by the 
laws of the United States, or of the place where the 
examination is held----
    Ms. Lofgren. Would the gentleman yield?
    Mr. Buyer. No, I will not. Or before a person appointed by 
the court to administer oaths and take testimony. There is no 
dispute that Judge Wright has the authority to give the oath in 
a civil deposition. Note, also in addition, 5 USC 2903 
provides, ``An oath authorized or required under the laws of 
the United States may be administered by the Vice President or 
an individual authorized by local law to administer oaths in 
that State, district or territory, or possession of the United 
States where an oath is administered.''
    Now before the grand jury, rule 6(c) of the Federal Rules 
provides that the foreperson of the grand jury, ``shall have 
the power to administer oaths and affirmations and shall sign 
all indictments.'' This does not mean that the foreperson is 
the only person who can administer oaths in the grand jury. In 
the District of Columbia, a notary public can administer a 
oath, an affirmation. In the President's grand jury testimony, 
the oath was administered by the court reporter/notary public, 
who is authorized to administer oaths by the Federal law in the 
District of Columbia. The District of Columbia Code provides 
that a notary public shall have the power to administer oaths 
and affirmations. That is Chapter 8, D.C. Code 1-810.
    Mr. Scott. Mr. Chairman, was he reading off a document?
    Mr. Sensenbrenner. The time belongs to the gentleman from 
Indiana, Mr. Buyer.
    Mr. Scott. If he was reading off a document, we would like 
to see what he was reading.
    Mr. Sensenbrenner. The time belongs to the gentleman from 
Indiana.
    Mr. Buyer. Mr. Noble, with regard to prosecutorial 
discretion, I was pleased to hear some of your testimony. I am 
referring here to the Principles of Federal Prosecution. I have 
a couple of questions that I would like to ask. Prosecutors end 
up having to exercise discretion a lot of times, because 
sometimes there is more crime that occurs and you have less 
resources, and so you have to exercise good judgment; is that 
correct?
    Mr. Noble. That is correct.
    Mr. Buyer. And there are many different factors that you 
need to take into consideration, and that is also why you have 
these guidelines in the Federal sector?
    Mr. Noble. That is correct.
    Mr. Buyer. One of the factors that you talked about today 
is the strength of evidence?
    Mr. Noble. That's right.
    Mr. Buyer. Another factor is the gravity of the offense?
    Mr. Noble. That's correct.
    Mr. Buyer. Another is deterrence, the deterrent effect?
    Mr. Noble. Correct.
    Mr. Buyer. By prosecuting or not prosecuting?
    Mr. Noble. That is correct.
    Mr. Buyer. In this case when I refer to the guidelines, 
under the section of the Nature and the Seriousness of the 
Offense, I think it is somewhat informative. It says here, 
``The public may be indifferent or even opposed to the 
enforcement of a controlling statute, whether on substantive 
grounds or because of the history of nonenforcement or because 
the offense involves a minor matter of private concern.'' And 
that is what some of you have tried to articulate here today.
    Mr. Noble. I believe I quoted that in my prepared remarks.
    Mr. Buyer. If you go down further it reads, ``While public 
interest or lack thereof deserves the prosecutor's careful 
attention, it should not be used to justify a decision to 
prosecute or to take other action that cannot be supported on 
other grounds. Public and professional responsibilities 
sometimes require the choosing of a particularly unpopular 
course.''
    Do you agree with that?
    Mr. Noble. Again, I have quoted most of what you have said, 
yes.
    Mr. Buyer. We have had other panels come in and testify, 
and they like to cite public opinion polls, and they say, you 
need to listen to public will here and exercise sound public 
discretion here and go with the polls. But as in the 
prosecution of cases, you don't have that luxury, do you?
    Mr. Noble. I believe that what one is supposed to do is try 
to make one's best judgment in terms of what an unbiased 
decider of fact would decide, and if the public polls are 
deemed to be based on unbiased opinions, then that should be 
considered. But if they are deemed to be based on bias, then I 
think they should be ignored.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I thank the Chairman very much. I think it 
is important, as these days come to a close, to make all of 
ourselves clear. Let me again clearly state that I find the 
President's behavior unacceptable and morally wrong. But I take 
issue with my colleague from South Carolina who continues to 
restate the premise that there are no new facts.
    Unfortunately, what I would offer to say is there has been 
no new thinking in this room, because as I read the provision, 
treason and bribery and other high crimes and misdemeanors, I 
do not hear the claim treason and bribery and unfit morally. So 
we are discussing in actuality apples and oranges for the 
American people. That confusion causes the divide and the 
inability for us to come together in a collaborative and 
bipartisan manner.
    I would offer to say that maybe the panel that is missing 
here are spiritual leaders who might address the question of 
the schoolhouse in Texas, to be able to talk about redemption 
or the fact that, no, liars are not excused, and it is wrong; 
to teach parents how to teach their children, church houses and 
synagogues and parishes how to lead America morally. For the 
impeachment process is not a spiritual process, it is a process 
in fact that we must deal with, one, the framers' intent, and 
as these gentlemen, who I applaud for your presence, your 
intellect and your experience, have come to answer concerns as 
put forward by the President's defense.
    So I would like to get to what you are here for, to present 
information that is relevant to the impeachment question. That 
is not a spiritual question. It is not a moral question, though 
we condemn morally the behavior of the President.
    Now, my friends say there is no new evidence. If they would 
turn to page 93 in the President's presentation, there is a 
statement that says, there is no evidence that the President 
obstructed justice in connection with gifts. But the point is, 
the Independent Counsel Mr. Starr said, the President and Ms. 
Lewinsky met and discussed what should be done with the gifts 
subpoenaed from Ms. Lewinsky. Here, the answer; here is Ms. 
Lewinsky's testimony not ever put forward: He really didn't, he 
really didn't discuss it. And so you have it where there is an 
absolute new fact of which my friends seem to reject.
    Another point is in the Paula Jones deposition Mr. Bennett 
objected to the definition. This is the sexual relations or 
sexual affairs. He was on the record saying, I think this could 
really lead to confusion. I think it is important that the 
record is clear. I do not want my client answering questions, 
not understanding exactly what these folks are talking about.
    Another codefendant, Danny Ferguson's lawyer said, frankly, 
I think it is a political trick definition, the definition, and 
I have told you before how I feel about the political character 
of this lawsuit.
    Let me ask, Mr. Sullivan, Mr. Davis and Mr. Noble, as my 
time eases on, one, Mr. Davis, give the American people, most 
of whom have not been charged with a crime, never been inside 
of a grand jury, as to what it is like, whether it ends there 
with the probative value of that.
    Mr. Sullivan, if you would, if you could remember the 
question, so I could quickly get it answered, you mentioned the 
fact that it is unlikely to prosecute for these issues of 
perjury. Say that again for us quickly.
    Mr. Noble, do we have the authority in this proceeding not 
to go forward if we don't think we have a case?
    Mr. Davis, inside the grand jury room.
    Mr. Davis. The grand jury is really the instrument of the 
prosecutor. While they may ask some of their own questions, 
their agenda really is the agenda of the prosecutor. And what 
it is not is a vehicle for getting an assessment of the 
credibility of witnesses that appear there. There is no cross 
examination. It is the prosecutor's presentation and really it 
is not sufficient to determine what ultimately will happen in a 
trial.
    Ms. Jackson Lee. Mr. Sullivan.
    Mr. Sullivan. The reason I think a perjury prosecution on 
the sexual relations issue would fail is that the President has 
clearly explained in detail and repeatedly in his grand jury 
testimony what his understanding of the term meant when he gave 
his testimony in the Jones case. And I do not think in light of 
that obscure definition, and in light of what happened, that it 
can be said that there is proof beyond a reasonable doubt that 
he did not honestly have that interpretation.
    Mr. Sensenbrenner. The gentlewoman's time has expired. The 
gentleman from Tennessee, Mr. Bryant.
    Mr. Bryant. I thank the Chair. I thank the distinguished 
panel. I always want to remind those that might be watching 
that this is the President's defense, and the witnesses who 
have been testifying the last 2 days are all called by his 
lawyers to testify in his favor.
    I want to commend Mr. Craig for the outstanding strategy he 
has presented today. He is truly a very fine lawyer. He has 
brought a defense to us today that this President should not be 
impeached because he almost committed perjury, obstructed 
justice, tampered with witnesses, caused someone to file a 
false affidavit. But because he didn't actually cross that line 
exactly, then he should not be impeached. This extraordinarily 
talented wordsmith, or the extraordinarily talented wordsmiths 
and people who can make those extremely sharp distinctions for 
the President, allow him to redefine such words as ``sexual 
relationships,'' the word ``is,'' the word ``alone'' and defend 
this cover-up story with such statements that--actually, in 
this 184-page report, that the cover story for Monica could be 
that she was delivering papers, and that is because she did 
maybe two times of the numerous times that she went there. And 
she said there was a lot of truth in there.
    Well, there were also a lot of lies in there in addition to 
that truth. But again, this is good wordsmanship. Again, I have 
to commend again the counsel for the President for the defense 
that has been crafted so carefully and say it is consistent 
with the President's statements so far.
    Summarizing, though, I would say that the defense of today 
that he almost did these things is like saying, close only 
counts in horseshoes. I don't think, though--let me say, I 
think, like Mr. Canady and so many others in this committee, 
the proof is there that he didn't almost commit those offenses, 
that in fact he crossed that line. There is compelling evidence 
of that.
    But for those who don't agree, who might accept your view, 
I want to remind the people of the other witnesses who have 
said that you don't have to have a crime to impeach. I think 
that is unanimous among all the experts who have testified. And 
as the Congress, if we accept your view, I think we have to be 
careful that you don't box us in to the Nixon standards or that 
you don't box us in that there has to be a crime and that a 
technical defense would escape impeachment.
    I think what we have to look at--what is so important to me 
is Mr. Craig's statement yesterday, the admission on the part 
of the President that the President, under oath, the chief law 
enforcement officer, the President who appointed all of us as 
U.S. attorneys, who appoints the Attorney General, the 
Commander-in-Chief evades the truth, gives incomplete answers 
to the truth, gives misleading testimony, and, he says, it is 
maddening, it is maddening.
    I think it is sickening. I think it is sickening that the 
President does this. And for us to allow this President to do 
that and do damage in a civil rights lawsuit I think is 
improper. And for Congress to turn the other way and look away. 
I don't think we can do that.
    Now, we all in the end have to vote our conscience, but we 
should not continue to hear about Nixon is the standard, is the 
threshold. That is not the case.
    But in the end, I do want to thank you for your able 
presentation, you have done again what you were supposed to do 
as part of this presentation. I think you have done a good job 
at it. But again, I think I would address my colleagues, let's 
don't get boxed in to this idea that he almost did it, in your 
view, and we can't impeach. I also again would give the 
disclaimer that I do believe he committed these crimes, and I 
think the evidence is there to show that. I thank you again.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentlewoman from California, Ms. Waters.
    Ms. Waters. Thank you very much. I would like to thank our 
panelists for being here today. I am extremely impressed with 
the way that they have used the very limited time, and I am 
extremely frustrated. I would like to see each of you take one 
aspect of these allegations and present a summation about why 
they are not impeachable. But this process doesn't allow for 
it, and you are not able to do what you have shown you could do 
so well because you don't have the time.
    You are sitting here with so-called legal minds and lawyers 
talking about they want to impeach the President because they 
are sickened by his actions. They feel his actions are 
reprehensible. They don't--they feel they are unacceptable. We 
keep trying to make the case they have a right to feel anything 
they would like to feel, but just because they are sickened by 
his actions does not mean they are impeachable. I don't know 
how we are going to get that message through.
    I think you did a fine job, Mr. Sullivan, of talking about 
the state of mind of the President and why he could rationally 
say that he did not have sexual relations based on the 
definitions and his belief. He did not consummate the sexual 
act that he thought was central to sexual relations. And simply 
because he got on television and said, I did not have sexual 
relations, somehow these would-be lawyers on this committee 
think that he has done something that is impeachable.
    Let's move on to the gifts, Mr. Davis.
    Betty Currie did not say that she was instructed to go get 
gifts and burn them up or dump them in the river. If she wanted 
to obstruct justice, do you think she could not have found a 
better hiding place than putting them under her bed? Would you 
illuminate on that as obstruction of justice for us?
    Mr. Davis. I think there would be both a better hiding 
place, and in terms of obstruction of justice, I think there is 
also the significant issue as to the lack of evidence as to the 
President's real role in that whole process even when you look 
at a lot of Ms. Lewinsky's testimony, Betty Currie's testimony 
and the President's testimony.
    Ms. Waters. Mr. Dennis, this business about bribery, 
somehow there is an attempt to make the case that because there 
were discussions about jobs, that Ms. Lewinsky was trying very 
much to get a lot of help from anybody she could get it from to 
get a job, that somehow there is some bribery involved here and 
obstruction of justice because they would like to make the leap 
that there was an exchange of some kind of information or 
communication that said, if you give me this job, I will not; 
or an offer, if I get you a job, will you not.
    Will you help us with that?
    Mr. Dennis. Two things I recall, one from President 
Clinton's grand jury testimony which was not challenged, I 
don't believe, that issues related to her employment were taken 
up long before she became a witness in the case. It is also my 
understanding, excuse me, that Ms. Lewinsky herself denied that 
there was any attempt to use help with her employment in order 
to get her to testify one way or the other. I would think that 
that would basically close the whole issue.
    Ms. Waters. Exculpatory information that was never 
presented to us----
    Mr. Dennis. It is right in the record. That is correct.
    Ms. Waters [continuing]. In this so-called case.
    In addition to that, there was some discussion about 
conversations with the President and Ms. Currie about trying to 
remember what was said or what took place. Is there anything in 
that exchange that would cause us to move toward impeachment 
because the President said, were we ever alone, do you 
remember? Give us--would you illuminate on that somewhat, Mr. 
Noble?
    Mr. Noble. Again, it is a specific intent crime. The 
question is what was 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 that she had said something different from 
him, if she believed something different from him, she would 
have felt free to say it. For that reason, Ibelieve you just 
don't have the specific intent necessary to prove obstruction of 
justice with regard to the comment that you just asked me.
    Ms. Waters. Thank you very much.
    Mr. Weld, someone offered that there were other people 
serving time for perjury, and they gave these piddling little 
numbers, despite we have the kind of population that we have in 
the country. They did not give you the facts in the case of the 
woman who came before us, Dr. Battalino I think is her name. 
And I think it was not fair to use that and say, you see, she 
was prosecuted; how can you not say the President should be 
prosecuted. Do you know the facts of that case? If so, can you 
illuminate on them?
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    Governor, you got a quick answer to that one?
    Mr. Weld. Saved by the bell, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Mr. Dennis, in your statement you said, and I 
quote, I sense an impeachment would prove extremely divisive 
for the country, inflaming the passions of those who would see 
impeachment as an attempt to thwart the election process for 
insubstantial reasons.
    I can assure you that there are many citizens who feel just 
as passionately that this President deserves to be impeached. 
Would you acknowledge that that is true?
    Mr. Dennis. I am sure that passions do run in both 
directions, high in both directions.
    Mr. Chabot. Thank you.
    Mr. Davis, let me quote from your opening statement as 
well. You said, and I quote, prosecutors often need to assess 
the veracity of an ``I don't recall'' answer. The ability to do 
so will often depend on the nature of the facts at issue. 
Precise times of meetings, names of people one has met and 
details of conversations and sequences of events, even if 
fairly recent, are often difficult to remember.
    Let me ask you this: In your experience, is it common for 
people to forget things such as whether or not they had sex 
with somebody or whether or not they were alone with someone? 
Just yesterday we were presented with the President's 184-page 
defense report and were told that the word ``alone'' is a vague 
term unless a particular geographic space is identified.
    Do you find that sort of legal hair-splitting defense 
helpful? Don't you think that we ought to at least be able to 
agree that alone means you are by yourself, not with anybody?
    Mr. Davis. I think alone in essence means that you are by 
yourself. But I think that while you don't forget that you had 
sex with somebody, I think you have to go back and look at the 
confusing nature of the answers. Basically what was going on, 
there is no question the President was trying his best to avoid 
and was playing word games in his deposition. He shouldn't have 
been doing it, and he was doing it. The issue is what is the 
legal consequences now, and that is what we are all struggling 
with.
    Mr. Chabot. Thank you.
    I think the President should set a standard for all the 
citizens in this country. I think we all ought to be able to 
agree on what the word ``alone'' means.
    Mr. Sullivan, in your opening statement in discussing how 
much evidence a prosecutor should have before he brings a case 
to a grand jury, you stated that they should not run cases up 
the flagpole to see how a jury will react. Do you think it is 
responsible for a President to take a poll to in a sense run 
something up a flagpole to see whether he ought to tell the 
truth or lie?
    Mr. Sullivan. No.
    Mr. Chabot. Thank you.
    Mr. Noble, in your statement you said, Members of Congress 
should consider the impact of a long and no doubt 
sensationalized trial, what effect that will have on the 
country. Should we also consider what the impact a President 
committing perjury, obstructing justice, tampering with 
witnesses and getting away with it might have on the country, 
particularly when that President is the chief law enforcement 
officer, and is sworn to uphold the laws in this country, and, 
in fact, is sworn and took an oath himself that he would uphold 
the laws?
    Mr. Noble. I believe you ought to consider whether or not 
you could prove those allegations that you have just made. From 
my review of the evidence, I don't believe you could prove any 
of the allegations that you just articulated in front of a 
jury, and I think you ought to take that into account in 
deciding whether or not you want to base your impeachment, as I 
have read, on perjury. You can base your impeachment on 
whatever you want, but it if is on perjury, I believe you would 
not be able to sustain a conviction for perjury before a jury 
in this country.
    Mr. Chabot. Thank you very much.
    In the final time that I have here, I think, as Mr. Bryant 
just said, it is very important for all of those folks that may 
be watching the testimony today not to forget that these 
witnesses were sent here, and I think they have done a very 
good job, but they are witnesses on behalf of the President, 
not impartial witnesses. They are advocates.
    I think that the President should set a standard that our 
kids in this country ought to be able to look up to, and we 
ought to know that the chief law enforcement officer, the 
President of this country, is somebody that we can respect and 
who actually tells the truth.
    I yield back the balance of my time.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Massachusetts, Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman.
    Mr. Chairman, Mr. McCollum earlier referred to a case from 
the United States Court of Appeals in the District of Columbia 
Circuit and seemed to indicate that that case, the ruling in 
the case, which had been sealed, put to rest the issue of 
whether or not the President's testimony was material in the 
Paula Jones case. Well, it just so happens that I got a copy of 
that ruling that was under seal, and this is not a ruling on 
that at all. This is a ruling on a motion to quash by Ms. 
Lewinsky's attorney because Ms. Lewinsky didn't want to 
testify. This ruling in no way, shape or manner says that the 
President's testimony was material to the underlying civil case 
in the Paula Jones filed lawsuit. So just to set the record 
straight, I would ask that this be submitted for the record, 
that Members might want to read it.
    Chairman Hyde. Without objection, so ordered.
    [Information not available at time of printing].
    Mr. Meehan. Thank you Mr. Chairman.
    In any event, I am delighted to see the former 
Massachusetts Governor here, back in the public arena on the 
right side. I heard my friend from South Carolina, Mr. Inglis, 
talk about the high bar over the last few days, the high bar, 
that Mr. Craig has to make sure that he gets over that high bar 
because it is a very high bar.
    They are prepared to vote for impeachment of the President 
of the United States on Saturday. It is the second time we will 
have a trial in the United States Senate if the full House goes 
along with it. And he is talking about the high bar that Mr. 
Craig has to pass to get witnesses before this committee to 
prove the President's innocence.
    Now, Governor Weld, you are a former prosecutor. I am sure 
that you have heard many on the other side say that this is 
sort of like a grand jury proceeding. Now, have you ever had a 
case where you as the prosecutor appeared before a grand jury 
and gave your presentation as to why you thought a defendant 
had committed a crime, yet called no material witnesses, no 
witnesses, yet nonetheless you got an indictment? I don't 
subscribe to this theory, but let's assume we are in the grand 
jury system.
    Mr. Weld. I have had cases where the case went in through 
an agent at the grand jury, and a lot of the agent's testimony 
would be hearsay. He would be a cumulative witness.
    Mr. Meehan. But you have never had a case where you didn't 
present basically a prescient case; you never went in and said, 
we should indict this person?
    Mr. Weld. I don't think you get too far that way, Mr. 
Congressman.
    Mr. Meehan. Apparently though, Governor Weld, you do--here 
is the point. Because we haven't heard from a material witness 
yet, and I hear the other side saying, wait a minute, the 
Democrats, the President, they haven't brought a material 
witness here. They should prove the President's innocence. 
Isn't the fact of the matter in the judicial proceeding, any 
judicial proceeding, that the prosecution or the person seeking 
to pass that high bar has the obligation to provide the 
material witnesses? Mr. Sullivan, isn't that the way our system 
works?
    Mr. Sullivan. Yes.
    Mr. Davis. It clearly works and must, and, indeed, I think 
that the burden to proceed with impeachment should have a 
higher evidentiary threshold than the burden for a prosecutor 
to bring a criminal case because the consequences of 
impeachment are much more important nationally.
    Mr. Meehan. Let me go on to another instance. There is all 
of this talk of obstruction of justice that is being thrown 
around here as if we had a case of obstruction of justice. And 
there is a talk about who initiated the events relative to the 
gifts, who transferred the gifts. Betty Currie testified before 
the grand jury that Ms. Lewinsky called her and asked her to 
come over and pick up the gifts. Monica Lewinsky claimed that 
Ms. Currie made the initial phone call.
    Now, I know this is probably hard to believe, but one of 
the articles of impeachment is going to be an obstruction of 
justice. But this committee has never called either one of them 
to try to determine what the truth is.
    Mr. Sullivan, have you ever heard of drafting an article of 
impeachment where there is a conflict in the facts like on this 
particular instance and we didn't call either one of the 
witnesses to try to correct what the grand jury testimony says?
    Mr. Sullivan. Well, no. But let me----
    Chairman Hyde. The gentleman's time has expired.
    Can you answer briefly?
    Mr. Sullivan. Yes, I can, Mr. Hyde.
    Even if you take what Ms. Lewinsky said, when she talked to 
the President about what to do with the gifts, you wouldn't 
have a case because she says that he said, ``I don't know, or 
let me think about it.'' That is all. That is the total sum of 
what Ms. Lewinsky said Mr. Clinton said.
    Mr. Meehan. Thank you, Mr. Sullivan.
    Chairman Hyde. The gentleman from Georgia, Mr. Barr.
    Mr. Barr, would you yield to me just briefly?
    Mr. Barr. Certainly.
    Chairman Hyde. Mr. Davis, in law if you have a prima facie 
case, the burden then shifts to the other side to come forward 
with some evidence; does it not?
    Mr. Davis. Well, not really. The burden in a criminal case 
always remains on the prosecutor to show proof beyond a 
reasonable doubt, and that burden stays with the prosecutor 
from beginning to end.
    Chairman Hyde. Well, I understand that. But can you be 
critical of not producing witnesses when you have 60,000 pages 
of under-oath testimony, deposition testimony, grand jury 
testimony; are you not entitled to take that into 
consideration, and then, if you reject that, if you think 
that's wrong, don't you have some obligation to come forward 
yourself with a scintilla--by the way, what is a scintilla?
    Mr. Davis. A scintilla is very little. But I think----
    Chairman Hyde. Don't you think you have an obligation to 
come forth with a scintilla of evidence invalidating the 60,000 
pages that the Independent Counsel has developed?
    Mr. Davis. It is not a question of the number of pages. The 
real issue is whether those pages continue uncontradicted facts 
as to which there is no factual issue. The problem here is----
    Mr. Barr. Mr. Chairman, I have to reclaim my time. I have 
some--with all due respect.
    Mr. Rothman. Mr. Chairman, let the witness finish his 
answer, please.
    Mr. Scott. Mr. Chairman, I would ask unanimous consent that 
the witness be allowed to finish his answer.
    Mr. Barr. Could we restart the clock then? If they want to 
give this gentleman time to answer the questions, let him 
answer, and then restart the time.
    Chairman Hyde. Please, please. On nobody's time but the 
Chair's time, the gentleman may finish his answer, and then we 
will start again with Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman.
    Chairman Hyde. I want to be fair, and I really intruded on 
his questioning.
    Go ahead, Mr. Davis.
    Mr. Davis. I think it does depend upon what is in those 
60,000 pages. If there are conflicts that are revealed so that 
there are factual issues, the issue then becomes credibility, 
and credibility is important. And even as Mr. Starr recognized, 
he didn't want to give immunity to Ms. Lewinsky unless he saw 
her. Of course, actually, he didn't see her. He wanted his 
office to see her. So if you are going to make credibility 
judgments, and as to a number of these issues there are 
credibility issues, that is when it becomes important for the 
person with the responsibility formaking the decision, and that 
is, in this case, this committee, in my view, to actually test the 
credibility of the witnesses.
    Chairman Hyde. Of course, where there is no conflict, that 
isn't an issue; isn't that so?
    Mr. Davis. If there is no conflict, then it is a question 
of the significance of what is said and understanding that.
    Chairman Hyde. Thank you.
    Now, forgive me, Mr. Barr, I won't do that again. You will 
start all over.
    Mr. Barr. Mr. Chairman, if you can ask questions and then 
start the time for me, you can do that any time you want.
    Thank you, Mr. Chairman.
    I know Mr. Craig is here, and I don't know whether he is 
delighted or dismayed by the panel today, because after 
promising us yesterday that we would not be hearing 
technicalities and legalities, that is all we hear today. That 
is fine. We have a panel of very distinguished criminal 
attorneys here, and that is the essence of criminal law, 
finding a clever way to parse words and definitions and so 
forth and determine why certain principles don't apply, and I 
understand that.
    But we really have gone, Mr. Chairman, today from the 
technical to the absurd. From the technical we have lawyers 
here that would apparently agonize greatly over a definition of 
sexual relations that is very, very broad; uses terms that are 
deliberately broad to encompass a whole range of activities, 
using the term ``any person.'' Now, to Mr. Sullivan, any person 
may not mean any person, but I think to the average person of 
common sense it would.
    So we still have this legal technical parsing over 
definitions and words that really leaves us precisely where we 
were before Mr. Craig made a promise yesterday that we would 
have no more technicalities and legalities to hang our hats on. 
We have gone then to the absurd, Mr. Chairman, and that is the 
preposterous presumption or scenario that the President, in 
talking with Ms. Currie the day after he gave his grand jury 
testimony or his testimony in his deposition before the court, 
was really acting as her attorney because, according to Mr. 
Sullivan, it is entirely proper for an attorney to go over 
somebody's testimony in advance of that testimony to make sure 
that it fits.
    I don't think the President was contemplating serving as 
her attorney, nor do I think that Ms. Currie was contemplating 
hiring the President for that purpose. Therefore, we would have 
to look elsewhere, and the elsewhere is that he was trying to 
coach her, and that fits within the definition and the statute 
of tampering.
    For those on this panel, all of whom have tremendous and 
very noted experience in dealing with criminal law, many 
including dealing with very serious drug cases, I would ask 
them rhetorically, since they seem so enamored of the propriety 
of evasive and crafty answers being the tools in trade of an 
attorney, why they would find it interesting, or maybe they 
wouldn't, that the Acting Deputy Administrator of the Drug 
Enforcement Administration, for whom I would presume you would 
all agree it is important to have agents testifying in court, 
testify truthfully, why that Deputy Administrator believed it 
necessary on September 15 of this year in a memo to all DEA 
personnel admonishing them--and I have never seen a memo like 
this before--admonishing them, quote, that evasive or craftily 
worded phrases, testimony or documents designed to omit or 
distort key facts are similarly unacceptable and will not be 
tolerated. Making false statements in any matter or context is 
completely unacceptable and will not be tolerated.
    That, I think, Mr. Noble, and I noticed you did not answer 
this specific question put to you by I think it was my 
colleague and another former U.S. Attorney Mr. Bryant, that is 
why this case is so important, not necessarily that we know for 
a fact that there are DEA agents out there developing crafty or 
evasive answers to be used in court, but apparently the head of 
one of our preeminent law enforcement agencies, because of the 
President, the chief law enforcement officer, using crafty and 
evasive answers in court before judges, because that sets a 
certain standard, that is why it is important that we are here 
today.
    That is why it is important why we are here today, not to 
argue over the technicalities, niceties and legalities of 
whether or not a specific case of perjury can be made, but 
because of the damage that is already being done to our law 
enforcement by having a President who excels at evasive and 
crafty answers that in the case of the average DEA agent would 
be unacceptable, would get them thrown out of court and 
probably cashiered from the government. That is why this is 
important.
    And, Mr. Craig, shame on you for putting together a panel 
here of technicalities and legalities when you promised us 
yesterday there would be no more of that.
    Chairman Hyde. The gentleman's time has expired.
    The Chair would appreciate no demonstrations, although we 
have had them, but we can get along better without them.
    Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman.
    You know, I want to speak to the issues of technicalities 
and legalities and what have you, because I think it is 
important, when we speak about the rule of law, oftentimes we 
are talking about technicalities and questionable legalities 
because it is embedded in our Constitution that there are 
certain standards and requirements. Is that a fair statement, 
Mr. Sullivan?
    Mr. Sullivan. Yes.
    Mr. Delahunt. This is not about technicalities.
    Mr. Sullivan. It is, in response to what Mr. Barr said, in 
somewhat----
    Mr. Delahunt. Mr. Sullivan, I am just going to speak to 
you, because I have wanted to help----
    Mr. Sullivan. It is interesting to me because in my 
experience, persons who make such statements, when they become 
the subject or the object of investigation, are the first ones 
to get the mantle of the constitutional protection and wrap it 
around them, and insist on their rights. You don't hear that 
kind of a speech from them anymore, when they hire me on to 
defend them, I can guarantee you that.
    Mr. Delahunt. Thank you.
    Let us talk about perjury. To evade is not to perjure, is 
it, Mr. Sullivan?
    Mr. Sullivan. No.
    Mr. Delahunt. To obfuscate is not to perjure.
    Mr. Sullivan. No.
    Mr. Delahunt. To be nonresponsive is not to perjure either.
    Mr. Sullivan. No.
    Mr. Delahunt. It is not a crime, is it?
    Mr. Sullivan. No, it is not. The definition of perjury and 
the proof required to prove perjury is very specific, very 
technical, and properly so.
    Mr. Delahunt. However, it might be maddening, it might be 
frustrating, it might not be right, it might very well be 
immoral, but it is not a crime.
    Mr. Sullivan. The Criminal Code is not enacted to enforce a 
code of morality.
    Mr. Delahunt. You know, I was listening to my friend from 
Tennessee Mr. Bryant, and I thought his comments were 
interesting, you know, the almost did it theory. You know, I 
don't think he and I disagree all that much. I do think, 
however, that there are ways to deal with a President who has 
evaded, who has been nonresponsive, and who has obfuscated the 
truth. I suggest that there are alternatives that are open to 
this Congress to deal with that particular issue.
    You know, I think it was Mr. Chabot who raised the issue 
about recollection and forgetfulness. You are all experienced 
trial lawyers. We know as human beings that memories--people 
can answer in good faith and memories can fail. Is that a fair 
statement, Mr. Sullivan?
    Mr. Sullivan. Of course, it is.
    Mr. Delahunt. Well, I just want to submit this for the 
record, because hearing the issue being raised yesterday, 
several days ago, I went back to the testimony that was 
provided by Kenneth Starr, and, according to my review, the 
Independent Counsel expressed difficulties in recalling 
information at least 30 times during the course of his 
testimony. And it is fully detailed here, and I want to submit 
it, Mr. Chairman, for the record.
    Chairman Hyde. Without objection, it may be received.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.034
    
    [GRAPHIC] [TIFF OMITTED] T3321.035
    
    [GRAPHIC] [TIFF OMITTED] T3321.036
    
    [GRAPHIC] [TIFF OMITTED] T3321.037
    
    Mr. Delahunt. You know, I think it is important to also 
note that credibility is an issue here, Mr. Davis. It is a real 
issue. And I think it is important to note, too, that the 
Majority, represented by Mr. Schippers, has acknowledged that 
in their report to this committee.
    I am going to read to you his statement: Monica Lewinsky's 
credibility may be subject to some skepticism. At an 
appropriate stage of the proceedings, her credibility will, of 
necessity, be assessed together with the credibility of all 
witnesses in the light of all the other evidence.
    Would you suggest that it is an obligation of this 
committee to make that assessment before we proceed?
    Mr. Davis. I believe it is, because you are the people who 
have to be comfortable that there is sufficient evidence to 
establish what is put in a piece of paper.
    Mr. Delahunt. Ms. Lewinsky has on numerous occasions lied, 
if you have read--if you accept the--if you accept the 
transmittal by Mr. Starr.
    Mr. Davis. I think Mr. Starr's transmittal references that.
    Mr. Delahunt. And early Mr. McCollum talked about nine 
corroborative witnesses. My memory of the Starr communication 
is that she told different stories to different people.
    Mr. Davis. I think there is set out there, and, as I said 
before, it is also the same if she had a pre-existing 
motivation to tell false statements to the grand jury, it was 
the same with those people in any event.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Thank you, Mr. Chairman.
    Let me say to this panel, thanks. Mr. Chairman, I regard 
this as a very able panel. And I suppose you saved, Mr. Craig, 
the best for last. I feel like I would be unarmed to get 
engaged in any mental gymnastics with any member of the panel.
    But you have all announced that you are here as witnesses, 
not advocates. You are advocates, in a sense, as witnesses, and 
I suppose the tendency for all of us who have practiced law or 
been judges is to get back in the arena. The last two or three 
panel members, I think, have gone in a direction that we need 
to continue to go in. They have talked about getting away from 
legalistics, talked about getting away from lawyer talk, and 
talked about discussing things that the American public would 
understand. I have got a question along those lines I would 
like to ask Mr. Sullivan.
    Mr. Sullivan, you testified that you had read from the 
President's deposition that he had denied that he had sex with 
somebody based on the interpretation of sex.
    Mr. Sullivan. In the grand jury testimony, the grand jury 
testimony about his deposition testimony.
    Mr. Jenkins. And you commented that you thought the 
President's interpretation was reasonable.
    Mr. Sullivan. Yes, I think it is a reasonable 
interpretation. He insists that that is his interpretation. And 
it seemed to me, given the necessity of proof beyond a 
reasonable doubt that he thought he was telling a lie, that you 
could not make a criminal case against him.
    Mr. Jenkins. Well, now, this is a solemn matter, and I want 
to keep it that way, but for those people across this land who 
are viewing this now, I want to ask you, you have come down 
here and testified, and, actually, I see what it comes down to 
this, when you pull the shuck back and look at the corn, what 
you are asking the American people to believe is that we have 
got a guy down at 1600 Pennsylvania Avenue who is smart enough 
to get himself elected, who is smart enough to serve as 
President of the United States, and he doesn't know what sex 
is.
    Mr. Sullivan. No, I am not suggesting that at all. That is 
absolutely not what I am saying. I have said it three or four 
times. The judge in the Jones case gave a specific definition 
of the term ``sexual relations.'' She deleted two sentences 
that specifically read on, as the patent lawyerssay, oral sex. 
The President says in his mind that took oral sex out of it, and that 
what was left was what we would call normal sexual intercourse. And he 
said that is the definition I was responding to.
    Now, you can say that is silly, that is ridiculous, I don't 
believe it, but that is what he says. And it seems to me that 
if you were to bring this as a criminal case with that 
background in mind, and what was left in that definition, you 
can't make a case. That is all I am saying.
    Mr. Jenkins. Well, you and Mr. Noble have both indicated 
that you don't believe, and perhaps, I guess, other panel 
members have indicated----
    Mr. Noble. I would like to respond to two points you made. 
One is----
    Mr. Jenkins. I haven't asked you to, Mr. Noble. Wait just a 
minute, and I will try to give you an opportunity. I am about 
to burn up all the time I have.
    But do you know anything, Mr. Sullivan, about the Battalino 
case, the lady who came here and testified?
    Mr. Sullivan. Just what I have read in the newspapers about 
it. I did not witness it.
    Mr. Jenkins. You are not able to compare----
    Mr. Sullivan. Well, I could compare it this way. In the 
cases that have been referred to, I have not heard of any in 
which it is analogous to this case, where the witness' 
testimony was peripheral to the issues in the case, where the 
alleged perjury was not dealing with the specific facts like of 
the Jones case, but of some other peripheral case that might 
not even be admissible in evidence.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Wexler.
    Mr. Wexler. Thank you Mr. Chairman.
    Mr. Sullivan, I was very struck by your testimony in terms 
of your examination of the allegations against the President 
because it seems to me one of the most critical elements 
against the President and the President's lawyers' performance 
in this process is that they have engaged in legal hair-
splitting, and they have been condemned for it, and in some 
cases maybe appropriately so. But as you analyzed the nature of 
the case against the President with respect to perjury, what 
struck me was it seems that in order to make that same very 
case against the President, you have to engage in legal hair-
splitting to do so, because when it all comes down to that very 
essence of the case against the President on perjury, it comes 
down to a discrepancy, a discrepancy between the testimony of 
the President and Ms. Lewinsky over the precise nature of the 
physical contact involved in their relationship.
    The President on the one hand to the grand jury says, I had 
an intimate relationship, an inappropriate intimate 
relationship with Ms. Lewinsky that was physical in nature. And 
he goes on to say, it was wrong. And then, of course, as you 
have pointed out here today on several occasions, he denied in 
essence having sexual relations as it was defined by the judge.
    Ms. Lewinsky on the other hand, in response to the 
Independent Counsel's several questions, goes into graphic 
detail in recollection of her encounters with the President. 
That is what it seems the perjury is all about.
    Let's take the advice of the members on the other side. 
Throw away the legal technicalities. Throw away the 
requirements that the law provides we prove for perjury. Forget 
all about that. Tell the American people what is the false 
statement that the President allegedly made to the grand jury? 
Forget the consequences, forget the law. What is the false 
statement?
    Mr. Sullivan. Well, could be one of two. It could be when 
he denied having sexual relations, and I have 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 or 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 did. So it is who shot John. It is 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 perjury.
    Mr. Wexler. Mr. Sullivan, I only hope that a vast majority 
of Americans have heard your answer right now. What this is 
about at its worst is the President making false statements 
about sexual relations and about where he touched Monica 
Lewinsky. That is what the perjury, the alleged perjury, is 
about. I hope I am not misstating what your answer was.
    Mr. Sullivan. No, you are not. What the other side is 
saying is that perjury in any regard is so important that the 
President oughtn't to engage in it. We can all probably agree 
with that. The issue for you is whether or not it justifies 
impeachment.
    Mr. Wexler. I agree. I agree. So it is about sexual 
relations, and it is about touching, and now we are about to 
impeach a President because we think he gave false answers 
about sexual relations and about touching. How many times does 
it have to be said, how many times do we, the Congress of the 
United States, have to now set up a standard that says the 
President may have falsely told us an answer about sexual 
relations and about touching, and now we are going to impeach 
him?
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Arkansas, Mr. Hutchinson.
    Mr. Hutchinson. This investigation was opened because of 
concerns about attempts to obstruct and suborn perjury in a 
civil proceeding in which a plaintiff who had a right to bring 
a suit, who the courts determined had a right to bring a suit, 
was pursuing. And our review is looking into these allegations 
of obstruction of justice and perjury.
    There are questions about whether Monica Lewinsky is 
truthful or not. I think that is a legitimate question that can 
be raised, but I think she does have an incentive for telling 
the truth. I have here before me the immunity agreement, which 
I have seen before and these witnesses have seen before as 
well. It says that if Ms. Lewinsky has intentionally given 
false, incomplete or misleading information or testimony, she 
would be subject to prosecution for any Federal criminal 
violation. And so certainly she has immunity, would you agree, 
Mr. Sullivan,but if she does not tell the truth, then she will 
be subject to prosecution?
    Mr. Sullivan. If that is the standard use immunity 
agreement, that is correct.
    Mr. Hutchinson. Now, I believe, Mr. Sullivan, going to your 
testimony, you suggested that prosecutions for perjury are 
relatively rare, difficult to prove, and the United States does 
not do it generally in pursuit of civil litigation. We have the 
statistics for Federal prosecutions.
    I think Governor Weld mentioned this, that he didn't 
believe that they were that rare, and, in fact, in 1993, there 
were more Federal perjury prosecutions by a United States 
attorney than there were kidnapping prosecutions. I don't think 
that means that kidnapping is not significant. In '94, the same 
fact was true. There were more perjury prosecutions, in fact 
93, than there were kidnapping prosecutions. And the same is 
true in '95. It is really a pattern that goes back to the 
1960s.
    And I wish I could give credit to all of my staff who did 
such great work, but talking about the United States attorneys 
prosecuting perjury in civil litigation, here is a stack of 
cases. I could go through them, but I only have 5 minutes. I 
found an impressive arena of cases in which U.S. attorneys 
prosecute perjury in civil cases across the country.
    Now, I agree with your point that sometimes there is a 
history behind the case. But I think there is a history here in 
this case as well. There is an investigation of obstruction of 
justice.
    Now, Mr. Sullivan, you mentioned that it was in a 
peripheral matter, am I correctly----
    Mr. Sullivan. Yes.
    Mr. Hutchinson. Has anyone on this panel ever represented a 
woman as a plaintiff in a sexual harassment case? If you have, 
raise your hand. No one?
    All right. Well, I have. And the most difficult thing in a 
sexual harassment case is proving who is telling the truth. 
Many times you have to go to a pattern of conduct because there 
is a denial. So if you try to prove a pattern of conduct, you 
have to ask questions in a deposition as to what has happened 
in the past. And I don't think that is a peripheral matter. I 
don't think you can build sexual harassment cases if you do not 
ask those questions.
    When the President in that deposition denied ever having in 
his lifetime sexually harassed a woman, is that a material 
statement in the civil deposition? I invite your answers.
    Mr. Davis. Well, I think the issue is--I don't believe it 
is, because----
    Mr. Hutchinson. The question is, is it material?
    Mr. Davis. No, I don't think it is material because you are 
entitled to ask the question under the broad discovery rules. 
But the question is, if a truthful answer here would have 
revealed the true facts, would it have been admissible in that 
Jones case. Actually, the truth is, it would not have been 
because it would not have been admissible in the Jones case.
    Mr. Hutchinson. Does anyone disagree that it would be a 
material statement? Do you disagree, Mr. Noble?
    Mr. Noble. I am sorry. Maybe I misunderstood the question, 
and I don't know the record to reflect this question, but if 
your hypothetical question is in a sexual harassment suit, if a 
person is asked, have you ever sexually harassed someone, would 
that be material, I believe it would be material.
    Mr. Hutchinson. Would anyone else agree with Mr. Noble, who 
gave a very straightforward answer? I know you all haven't 
handled sexual harassment cases. Perhaps this is a little bit 
of a disadvantage.
    I thank you for your testimony.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from New Jersey, Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Chairman. Let me start off by 
saying that with respect to my colleagues on the other side of 
the aisle, I do not think it aids the search for truth to 
demonize the White House counsel. Mr. Craig said that he was 
going to be presenting us with some factual rebuttal to the 
factual arguments made by Mr. Starr. As I have read the 184 
pages of the White House submission, there are pages 70 through 
89 and pages 93 through 182 which address each and every one of 
the factual charges made by Mr. Starr.
    So what we now have is Mr. Starr, who was a witness to no 
facts, making his statements, 450 pages in writing and in 2\1/
2\ hours in his initial testimony, and we have Mr. Kendall, who 
made several written rebuttals, and then now this 184-page 
rebuttal to all the facts, neither of which are admissible in a 
court of law, as we all know and have accepted, the testimony 
of these experts. And we are left without one single fact 
witness to help us clarify when Monica Lewinsky was telling the 
truth and when she wasn't, because Mr. Starr said that 
sometimes she was telling the truth, and sometimes she wasn't. 
But no fact witnesses have yet been called to aid us in the 
finding the truth.
    But we all agree that there is a basic fundamental American 
notion of due process and fairness, that those bringing charges 
must bear the burden of proof. And in this instance, it is a 
clear and convincing standard of proof, yet not one single fact 
witness has yet been presented. That will be telling unless it 
is remedied, my friends.
    But I understand that my colleagues on the other side of 
the aisle, despite the fact that these distinguished 
prosecutors have said they would never bring a criminal 
indictment on these matters, my colleagues say that even if it 
was not a crime, it is a pattern of lying. It is not right.
    Well, I am not sure that the standard is treason, bribery, 
high crimes, misdemeanors, evasiveness and lack of 
respectability. Although some might argue that the constitution 
should say that, it does not say that.
    With regard to the rule of law, we have said many times 
President Clinton will pay an $850,000 fine, or settlement this 
case for $850,000, in the Jones civil case. That is not an 
incentive to lie in a civil case. He can be prosecuted 
criminally once he leaves office and go to prison if the 
charges against him are proven true. That is certainly not an 
incentive to anyone to lie under oath in any proceeding. And 
the rule of law is upheld because the President is not above 
the law. He can be sued civilly and criminally, and our kids 
know that, and this whole process has demonstrated that.
    The question for our committee and for all of America is to 
decide if no reasonable prosecutor would bring thesematters up 
for a crime, how could it be a high crime or misdemeanor. Say the 
founders got it wrong, that they should have added evasiveness as a 
high crime and misdemeanor, or lack of respectability as a high crime 
and misdemeanor. Some might argue yes; some might argue no. What we 
have to be aware of is the consequences to our Nation if we expand on 
that definition when we already know the President can be punished 
civilly, as he has been in the settlement, and criminally by going to 
go to prison if the charges are proven against him.
    I yield back the balance of my time.
    Chairman Hyde. I thank the gentleman. The gentleman from 
Indiana, Mr. Pease.
    Mr. Pease. Thank you, Mr. Chairman. I have a few questions 
and then an observation.
    I wanted to--first of all, let me say, I have found this 
panel very helpful on the questions dealing with criminal 
prosecutions. I understand that there is a difference between 
criminal prosecutions and impeachment, but on the questions of 
criminal prosecutions and the parallels that may be argued, I 
am grateful. I wanted to be certain--let me back up.
    I especially, without diminishing the work done by any of 
you, I especially want to thank Mr. Noble, whose presentation 
was most helpful to me, and I had some follow-up questions I 
wanted to ask you, based on questions that you were asked by 
other panelists but didn't get the chance to conclude.
    The first deals with questions from Mr. Boucher on the 
standards that are used in assessing when to prosecute cases 
where there is a high-profile potential defendant. Can you 
share with us the standards in the Department of Justice in 
those cases?
    Mr. Noble. I must say, I am humbled to answer this, because 
on my left was the Assistant Attorney General from the Criminal 
Division when I was Assistant U.S. Attorney, and on my right is 
a U.S. Attorney and the Assistant Attorney General for the 
Criminal Division, so I will see if I learned anything from 
these two wise fellows.
    As soon as you get an allegation that there is a political 
figure who has engaged in criminal activity, as a U.S. attorney 
or as a prosecutor, one of the first things you will think 
about is, will people have confidence that my office's 
investigation of this will be deemed independent and unbiased? 
You ask yourself that, before you do anything. Can my office 
handle this? Or should I send it to the criminal justice--or to 
the Justice Department's Criminal Division in Washington and 
have Mr. Weld or people from Public Integrity handle it?
    Then you want to know, who is the person bringing it? Does 
he or she have a bias, a stake in the outcome of this matter? 
And if it is a matter involving parties that are already 
involved in a dispute, you have got to worry about that.
    And how did this person become aware of this information? 
If in the case of someone cooperating with you, one of your 
informants giving information to someone and having that 
information lead to possible criminal activity like a perjury 
trap, all of the considerations, so that after all is said and 
done, a rational citizen who is looking at you--I can't help 
the fact that I was asked by the Democrats to be here; if the 
Republicans had asked me to come, I would have come willingly--
but that a rational, independent person would say, yes, I can 
look at the evidence and see why this prosecution is brought; 
no rational seasoned prosecutor would bring any criminal 
prosecution against any person for perjury or obstruction of 
justice based on the evidence I have seen, and I am thankful of 
that, and we should all be thankful of that because if you want 
to prosecute me, prosecute me for something I did but not for 
something you thought I did.
    If I have got a weird thought process, don't process me 
criminally for it. Say that I am a weird person and 
disassociate yourself from me.
    Mr. Pease. Thank you, Mr. Noble. I appreciate your efforts 
to be concise.
    I don't know if this question was directed to you or to the 
panel, but Mr. Boucher was getting into the question of whether 
dismissal of a case terminates the authority of a court to 
sanction parties or witnesses. And I don't know that that was 
addressed, and I would appreciate it if someone could.
    Mr. Sullivan. I addressed that. I said that there is 
inherent power under the Supreme Court decision, and that I do 
not know whether or not the dismissal of the case terminates 
that.
    Mr. Pease. That's my question. So you do not know?
    Mr. Sullivan. I do not know.
    Mr. Pease. Does anybody else have a response or a thought 
on that?
    Mr. Weld. I believe that she does not lose jurisdiction to 
investigate and recommend a prosecution, hold criminal contempt 
hearings for anyone that might have engaged in criminal conduct 
during the time period that she had this matter.
    Mr. Pease. I also, as I began, want to thank all of you. 
Your presentation has been very helpful in understanding the 
issues surrounding charging and conviction in criminal matters. 
I am concerned, though, that we not assume that either the 
standards in a criminal prosecution or the burden of proof or 
the procedures employed are the same as those which face this 
committee.
    A criminal prosecution is not the same as an impeachment, 
and we should not succumb to an argument that because a 
criminal prosecution might not succeed, Congress is unable to 
act under its constitutional obligation regarding impeachment. 
No matter my eventual conclusion on the mattersbefore us, I am 
not prepared to say that the expected standard of conduct for an 
American President is simply that he or she may not be indictable.
    I yield back the balance of my time.
    Chairman Hyde. I thank the gentleman.
    The gentleman from Wisconsin, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman.
    Mr. Sullivan, you indicated in your testimony that you did 
not think that this would be a case that would be brought by a 
United States attorney for perjury. We have heard many 
witnesses and many members saying that the President, when he 
leaves office, is open to criminal prosecution. The sense of 
the American people, I think, remains that the President did 
something wrong, that he should be held accountable for his 
actions, and that he should not be impeached. So in your 
discussion, where is the justice?
    In this case, in the civil suit, since every one of us 
would deplore not telling the truth, or lying, where is the 
justice in your analysis here?
    Mr. Sullivan. Well, we live in an imperfect world, and 
justice is not always achieved in this world. We sometimes have 
to wait and hope. But all I am saying is that you have to 
follow the law. If the law provides that the President can be 
indicted after he leaves office, and if some prosecutor wants 
to take this up, who has jurisdiction over it, they may reach a 
different conclusion than I do.
    I doubt that a responsible prosecutor would bring a perjury 
case against the President on these facts.
    Mr. Barrett. Okay. Now let's----
    Mr. Sullivan. Now, I think that the justice--I mean, look 
at what the man has already gone through, though. We are 
sitting here, the third time in the history of the country that 
they are considering removing a President from office, it seems 
to me that there has been terrible retribution on this man for 
what he did.
    Mr. Barrett. Let's take the President out of it and let's 
leave it as a civil case where a person has lied. Where does 
the justice system work in this case? If a person in a civil 
case has lied under oath or misrepresented themselves or 
obfuscated the facts, tell me where the justice comes into this 
system if there is not going to be a perjury prosecution? There 
has to be justice. We can't just say, well, that's the way it 
goes.
    Mr. Sullivan. Well, we are talking about the Jones civil 
case?
    Mr. Barrett. Yes.
    Mr. Sullivan. And in that case, after the President made 
his disclosures, and Monica Lewinsky made her disclosures, and 
the case had been dismissed, but before it was decided by the 
court of appeals, Ms. Jones settled the case. So it seems to me 
it is washed away, because she then knew, at the time she 
settled, that if that evidence was going to be admissible, you 
know, she would take that into consideration in determining the 
amount of her settlement.
    The case was thrown out, as I understand it, for reasons 
entirely different; that she couldn't demonstrate that there 
was any connection between what may have happened and the 
detriment to her in employment.
    Mr. Barrett. Do you think that the amount of the settlement 
reflects some of that?
    Mr. Sullivan. Well, I think that Ms. Jones voluntarily took 
that settlement in light of all the facts, including the facts 
that we are now talking about today.
    Mr. Barrett. Okay.
    Mr. Weld, you offered some interesting observations, I 
think, one of which was the notion of a fine. I have had 
commentators talk about a plea bargain or a deal. I bristle 
when I hear those words, because I do think that this is a vote 
of conscience and that every member on both sides of the aisle 
should be listening to their conscience and be guided by that.
    I also am mindful of the fact that we cannot impose a fine 
on the President of the United States, that there are bill of 
attainder problems. How conceivable do you think it is that the 
President, if we were to censure him, would come forward and 
say, I recognize that as part of the healing process I should 
reimburse the Treasury for part of this investigation?
    Mr. Weld. Well, politically, I guess I had anticipated that 
all of that might be the subject of negotiation before the 
votes were taken. I was trying to think of things that would 
mark the solemnity of the occasion, do justice to the dignity 
of the House and its role, having the sole power of 
impeachment, and would say to the American people, there has 
been justice here; this person, this President, has paid a 
penalty here, short of being removed from office, which I think 
we have kind of slid by that one.
    But the fine, the written acknowledgment of wrongdoing and 
the exposure to future criminal prosecution, as well as a 
censure and as thorough a report as the committee or the House 
wished to put on the record in perpetuity, those are the five 
things that I could think of to mark the event.
    Mr. Barrett. Okay.
    Thank you, Mr. Chairman.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    I would like to begin by thanking this panel today. This is 
an important issue, and I think your presence has added weight 
to the issue. And I appreciate your comments and testimony.
    I would also like to just point out at the very beginning 
that without any parsing of words or equivocation, I agree with 
my friend, Mr. Delahunt, and with the comments by Mr. Sullivan, 
that the essence of the rule of law lies in the technicalities, 
and the technicalities are very, very important for us here.
    Now I would like to refer to some of the things that my 
good friend, Ms. Lofgren, commented on earlier. Ms. Lofgren and 
I are on two subcommittees of this committee together and I 
have the greatest respect for the way she thinks. She said or 
pointed out that perjury about sex is relevant essentially--and 
I am paraphrasing here--is relevant to this side because it is 
a crime, and then went on to point out some of the technical 
elements of the crime that may in fact be missing here. And the 
first was the suggestion that the person who administered the 
oath to the President may not have been authorized to do so. I 
think that was rebutted fairly effectively by Mr. Buyer, and I 
agree with his responses.
    Second, she said that the question must be unambiguous. 
Now, I don't read the statute as requiring an unambiguous 
question, but I think the perjury ultimately has to be quite 
clear.
    Later, Mr. Sullivan, I think, in response to some of this 
questioning, suggested that the President can defend on the 
basis that the definition was changed, that is, the definition 
of sex, and that the new definition may somehow have excluded a 
certain act or type of sex.
    Let me just suggest in response to that that I have read 
that definition very carefully, as I think many of the members 
of this committee have. The President pointed out that he 
answered the question very carefully because he answered the 
question in the context of the definition that he read very 
carefully, and obviously minds can disagree on this sort of 
thing, but I just don't see how you could exclude that 
particular act from the definition that remained after the 
striking of the two sentences.
    Now, a lot has been said about whether or not the President 
can be prosecuted for this crime, whether these technical 
defenses may be relevant. But I think the real potential for 
understanding the likelihood of a criminal prosecution actually 
lies in the President's own actions. He refuses to acknowledge 
or deny the underlying facts of the case, and it is like there 
is an allergy to the ``L'' word.
    Mr. Craig yesterday said in answer to a question, no, he 
deceived, he misled, but he did not lie; later, no, he was 
technically accurate, but he did not disclose information.
    I think all the commentators in the editorial pages have 
pointed out that the President is caught between the Fifth 
Amendment and coming clean with the American public, and I 
think it is his actions, the fact that he won't deal with the 
facts of the case, that make it clear to me that there may 
actually be in another context, rather than this one, a 
criminal problem that he is concerned about.
    But unlike Mr. Wexler, who says that this is about lying 
about sexual relations and touching, let me suggest that I 
believe that this proceeding is really not about crime; I 
believe that it is about the government's ability to secure--I 
have to protect my mike from my compatriot on this side. This 
is about the government's ability to secure the rights of the 
governed.
    John Jay was quoted yesterday. Let me just repeat part of 
that quote: ``If oaths cease to be sacred, our dearest and most 
valuable rights become insecure.''
    Now, Mr. Weld, you have actually governed and you are a 
person for whom I have the greatest respect. Would you mind 
responding? What do you think those rights are? And if you can 
be very particular, because my time is almost up, what are 
those rights that Mr. Jay is concerned about keeping secure?
    Mr. Weld. I think it is the rights to life, liberty, 
property, and the pursuit of happiness.
    Mr. Cannon. Thank you. I view property and the pursuit of 
happiness as the same right--life, liberty and property.
    Since my time is gone, I would love to hear a little bit 
about that. I believe that John Jay was right. What this panel 
is doing is maintaining for Americans, for generations and 
centuries to come, the security of those basic rights of life, 
liberty and property, or the pursuit of happiness. That's what 
we are about here.
    And I yield back the balance of my time, Mr. Chairman.
    Chairman Hyde. The gentleman from California, Mr. Rogan.
    Mr. Rogan. Thank you, Mr. Chairman.
    I join my colleague from Utah in welcoming the panel, and 
particularly in welcoming the distinguished former Governor of 
Massachusetts, whose service to our country I have long 
admired, and thank him for it to this day.
    Gentlemen, let me start off by saying that I have noticed a 
recurring theme among most of the panelists over the last few 
hours. The first one, with the exception of Governor Weld, is 
that perjury generally is a crime not prosecuted. The second 
one is the claim made over and over that somehow the statements 
made by the President were not material, even if they were 
lying under oath. I must tell you, I take exception to both of 
those claims.
    The federal government since Bill Clinton became President, 
and according to the Federal Sentencing Guidelines table, has 
convicted and sentenced almost 700 people for perjury in 
Federal court. In my own State of California, since Bill 
Clinton became President, some 16,000 perjury prosecutions have 
occurred. And so I just don't know where this novel claim comes 
from that perjury is a crime that is ignored by the courts. The 
record simply does not reflect that.
    A couple of members raised the case of Dr. Battalino. There 
were some blank stares by witnesses unfamiliar with her case. 
Let me share with you briefly the story of Dr. Battalino. She 
was here a week or so ago and testified before this committee. 
She was a doctor who worked for the Veterans Administration. 
She is also an attorney. In her capacity as a VA physician, she 
had a one-time consensual sexual relationship with a male 
patient of the hospital, but not her patient.
    He later sued the hospital for a sexual harassment claim 
and named her in the claim. She was asked in a civil deposition 
whether she ever had a sexual encounter with this patient. Out 
of embarrassment and out of concern for her job and her career, 
she denied it.
    The civil case was later dismissed. The gentleman's case 
against the hospital and the doctor was later dismissed. 
Despite that dismissal, the Clinton Justice Department filed 
perjury charges against her. She is now precluded from 
practicing law as a result of her conviction; she lost her 
medical license, and she is under incarceration. She appeared 
before us with an ankle bracelet, because she is under house 
arrest.
    You might imagine that Dr. Battalino has some grave 
concerns over the incredible double standard. Her loss of 
livelihood and the shame that she has had to face as a result 
of the Clinton Justice Department prosecuting her perjury does 
not square with the claim now being proffered by some of the 
President's supporters that tlying under oath about consensual 
sex is much ado about nothing.
    I must say that I take exception to some of my beloved 
colleagues on the other side who keep insisting to the American 
people that this is simply about sex. That just is not true. 
Governor Weld is absolutely right. Fornication and adultery not 
only are not impeachable offenses; they clearly and patently 
are not the business of the House Judiciary Committee. But that 
is not what is at stake here.
    The President was a defendant in a Federal sexual 
harassment civil rights case, and as a result of that case, a 
Federal judge ordered him to tell under oath whether in his 
capacity as Governor or President he had ever had 
sexualrelations with subordinate female employees. And the judge 
specifically found that was relevant to show a pattern of conduct. 
That's how sexual harassment cases are proven.
    So this idea among some folks is that if they just state 
the false premise over and over; if their histrionics, drama, 
and theatrics are enough; if their volume is raised 
sufficiently, then somehow we can reduce this to being just a 
case just about sex. This conduct may play well for the talk 
show circuit, but it doesn't play well for the truth.
    I thank the Chair and I yield back my time.
    Chairman Hyde. The gentleman from South Carolina, Mr. 
Lindsey Graham.
    Mr. Graham. Thank you, Mr. Chairman.
    I have a couple of observations and some questions for the 
panelists here. I, too, have appreciated you being here.
    Please understand that when I vote, I will look at it in a 
very legal sense. I don't believe, due to the nature of what is 
going on, that we should send a case forward that doesn't meet 
certain legal standards. And I just happen to disagree with you 
about whether or not this is a provable case of perjury. I 
think this is a very clear case of perjury, and it is not just 
about intimate touching. It goes much further, and I can't 
explain all that in 5 minutes.
    I have seen the President's deposition in Paula Jones where 
he testified. I saw Mr. Bennett wave the affidavit of Monica 
Lewinsky in front of the President. I saw the President's eyes 
follow the affidavit, his head nod, and I believe his grand 
jury testimony, where he said he wasn't paying any attention, 
is a lie, and I believe I could convict him with fair-minded 
people.
    But this is really more than just about the law. It is 
about the national interest. I am a politician and there is a 
unique political aspect to this case that is probably good. I 
have said before, impeachment without outrage should be 
difficult, and it should be in a democratic society. But let me 
tell you the mood of my district to let you know a little bit 
about what I am up against here.
    The Washington Post sent apparently four reporters to the 
four corners of the country and they happened to pick my 
district to figure out how people feel about the President and 
his misconduct. There is a portion of my district, very good 
friends of mine, who want to get this over with; and I 
understand, in their minds, it doesn't rise to the level of 
overturning an election. That's a real dynamic: very nice, 
rational people, but that's the minority people.
    You can take the polls and reverse them. The reporter said, 
I think I need to come home now, because he never got out of 
the clothing department of Wal-Mart to figure out what people 
thought about the President. It wasn't good. Being evasive, 
deceptive, immoral and nonresponsive are not resume builders in 
my district. Forget about perjury.
    So I am a Congressman that comes from an area of the 
country who has got no use for this kind of stuff, but I have 
publicly said that we are going to play it straight with the 
President; we are not going to take our emotions and our 
political disagreements and try to use that in an impeachment 
process, and I am going to stand by that. I have said to Mr. 
Craig and others, I believe the President committed serious 
crimes, but if he would reconcile himself with the law, so that 
we could end this thing on a note of honor, I may consider a 
different disposition than impeachment.
    But if he continues to flout the law, I don't think he 
should be the President for the next century. I stand by that 
statement.
    But there is another aspect of this that I think we need to 
talk about. Ms. Waters, who I really do--have gotten to know my 
colleagues on this side and we do get along pretty well. She 
says, well, it is really silly to believe the President would 
have his secretary hide gifts under her bed. Well, that sounds 
silly, but the day that people stop doing silly stuff is the 
day all of us as lawyers go out of business. I think it is 
silly to fool around with an intern while you are being sued. 
But those things happen, and they happen to smart people like 
Bill Clinton. And if we impeach people for being silly and 
doing inappropriate things, we will wipe the Congress out.
    So I am not saying that those type of things ought to be 
the reason we get rid of the President. But don't underestimate 
what people can do that really is inappropriate and defies 
understanding, and I believe that's a lot of what Bill 
Clinton's problems really are at the end of the day.
    If I have got to cast my vote based on knowing what the 
Senate is going to do, I would never vote in the House because 
I can't tell you what they are going to do half the time. And I 
think what they ought to do is wait until they get a case 
before they decide it; and everybody in Congress ought to let 
this committee do its work, whether you like us or not, before 
you decide what you are going to do. Because the day you start 
deciding the case before the case is over is the day we lose a 
lot in this country.
    Governor Weld, hypothetically, you are the governor. There 
is a person out there that possesses damaging information about 
you. You are in a consensual relationship that's wrong. That 
person, you know, if asked to testify, could hurt you legally 
and politically. If you used the resources of the governorship, 
if you got people in your office to plant lies, falsehoods, 
malicious rumors and tried to use your office as governor to 
trash that potential witness against you, what should be your 
fate?
    Mr. Weld. Well, in a clear enough case, my fate should be, 
out of here.
    Mr. Graham. Thank you. I yield back the balance of my time.
    Chairman Hyde. The gentlelady from California, Ms. Bono.
    Mrs. Bono. Thank you, Mr. Chairman. And to the panel, thank 
you first and foremost for your patience.
    I woke up this morning and I thought what do I get to do 
today? Question five of the top attorneys in the entire 
country. What a great way to start off my day.
    I want to ask a question to Governor Weld to begin. It is a 
follow-up to something that Congressman Coble had asked earlier 
on. You discussed how you had changed your position. Your 
initial reaction in February was that you said the President 
should resign, and you indicated that you changed your thinking 
because of events during the past year and the general reaction 
to the President.
    As a Congresswoman, I also sit on the National Security 
Committee. Issues concerning our military readiness and 
standing around the world greatly concern me. Earlier this 
year, the United States engaged in some military activities. 
Many people accused the White House of following a ``Wag the 
Dog'' strategy.
    It troubles me that the President may be, in some ways, 
hamstrung to lead and act decisively and swiftly on 
theinternational military stage without the complete trust of the 
American people. In other words, if the office of the President does 
not enjoy the complete public trust, this might affect our national 
security.
    So, Governor, if there is new evidence that the President 
does not have the trust of the international community or of 
our armed forces--and I am not talking about polls, but more 
specific evidence from leaders around the world--would you 
revisit your February advice that the President should resign 
for the good of the country?
    Mr. Weld. Yes. I think actually it was September, Madam 
Congresswoman. And as I indicated, there are--or alluded to 
earlier, one of the things I was troubled by in September was 
we had had, frankly, some acts--some bombings and similar 
actions abroad which coincided with the Lewinsky matter really 
coming to a head, and that's precisely what I was worried 
about. So I think, you know, anybody on an ongoing basis has 
got to ask themselves the question, can I do the job? And if 
you can't do the job, you shouldn't do the job.
    Mrs. Bono. Will your opinion vacillate, though, depending 
on what is happening with attacks on us or the economy is 
strong?
    Mr. Weld. Well, we don't have a parliamentary system here. 
We have Presidents who are mighty unpopular. Harry Truman was 
mighty unpopular even when he was--by and large, you know, in 
retrospect, people think--doing the right thing on a lot of 
stuff. So I don't think it should be following the public 
opinion polls. It is a question of ability to discharge the 
duties of the office. And I will confess that I was somewhat 
surprised at the alacrity with which all seemed to be forgiven 
and forgotten in terms of people saddling up and doing business 
with the President and taking him seriously.
    Mrs. Bono. Well, my point, here is that you know the public 
trust, though, is something we also have to anticipate. It is 
easy to have it now today while the economy is strong, the 
stock market is great--although some of us still can't get 
Furbies, it is not strong enough--but how about tomorrow? Will 
we have it tomorrow? Will the public trust be there tomorrow?
    It cannot change. It is something that we can't--we have to 
guess, will it be there? I am hearing, as you are saying, too, 
here today and gone tomorrow.
    We on this committee cannot have that. We have to decide 
will the public trust be there a month from now when Osama Bin 
Laden rears his ugly head again?
    Mr. Weld. I don't think you want to go the removal route 
because of a concern that the trust might not be there. It 
would have to be a little bit more solid than that.
    Mrs. Bono. There is a concern. Right. Thank you.
    I guess--I still have a green light. This is a miracle.
    I have a question based on Mr. Sullivan's testimony, but I 
will leave it open to the whole panel. But first I want to just 
comment briefly.
    Mr. Sullivan, We are here because of the President's 
dancing on the head of a pin, as Lindsey would say, over the 
definition of sex. ``Oral sex'' was omitted from the 
description before the Paula Jones testimony. But then here in 
this room you have changed it to sleeping with somebody. And I 
know you were trying to elude references to salacious materials 
again, but isn't that what got us in this whole mess?
    Now you are changing the wording--and I am not a lawyer, so 
I am getting used to listening to every word we are saying--and 
you did the very thing that got us in this whole mess to begin 
with.
    Thank you, Mr. Chairman.
    Chairman Hyde. Thank you very much.
    We are going to take a break. I will yield to Mr. Conyers.
    Mr. Conyers. Well, I wanted to take a few minutes on the 
reservation that I had earlier.
    Chairman Hyde. All right. Well, you are recognized for----
    Mr. Conyers. I will move as quickly as I can, Mr. Chairman, 
and thank you.
    I first wanted to let Sheila Jackson Lee utilize 30 seconds 
of the time.
    Ms. Jackson Lee. Thank you very much, Mr. Conyers.
    Just very briefly, there was a comment on the presentation 
of the witnesses. Let me assume that you can come forward here 
because you in fact are expert witnesses, but I did want to 
very quickly comment on Dr. Battalino's case and Ms. Parsons' 
case.
    Dr. Battalino's case, the issue of perjury went to the fact 
that she was attempting to reclaim monies for litigation costs. 
It was insurance fraud, if you will. That went to the 
question--that's why the Department of Justice prosecuted her, 
and you were unfairly asked about it.
    Pam Parsons, she was accused of being a lesbian. She was a 
plaintiff and sued the newspaper that accused her of such, and 
lied that she was not and there was definite--or definitive 
proof otherwise. So it went to the heart of the case, and I 
think it is important that we clarify the record on those 
grounds.
    I thank the gentleman. I yield back my time.
    Mr. Conyers. Mr. Chairman and members of the committee, and 
to this very much appreciated panel, this is a critical phase 
of the hearings, and it is helping us to recognize how the 
experts on this panel, seasoned and experienced prosecutors 
all, which Mr. Starr acknowledged that he was not, would have 
rejected bringing a criminal case against the President based 
on Mr. Starr's allegations if he were an ordinary citizen.
    It's critical at this part of our hearing to understand the 
vast difference between the allegations being considered by the 
committee and the system of criminal justice that applies to 
the rest of us. If no ordinary citizen would face even a 
criminal prosecution based on the allegations in the referral, 
how can we justify considering the rarely used remedy of 
impeachment for the same conduct? If no ordinary citizen would 
face a criminal prosecution based on these allegations, how can 
it be argued that to decline to vote for impeachment places the 
President above the law? If no ordinary citizen would face a 
criminal prosecution based on these allegations, why should we 
bother to take the Senate and the Chief Justice of our highest 
court to spend months resolving undignified and trivial 
questions of fact rather than attending to the important 
business of the country?
    I hope these questions raise serious issues andreservations 
for all of my colleagues in the committee about the wisdom of 
proceeding on the paths that we apparently are on. And may I 
acknowledge the chairman of this committee's accommodations that he has 
offered me concerning prompt notice to all of us on the committee of 
any draft articles of impeachment and his further willingness to 
consider the motion that will be offered by the gentleman from 
Virginia, Mr. Scott, to require that the specific allegations against 
the President be provided to him before his counsel responds when we 
conduct our business session today or tomorrow.
    May I reiterate my strong view to the Republican leadership 
that fairness dictates that the American people not be muzzled 
on the all-important issue of censure. Overwhelmingly, the 
American people that we have referred to, tested in the 
districts and the Nation, do not want the President impeached. 
Our citizens either support doing nothing or--under the theory 
that the President has already been censured or they support an 
additional resolution of censure.
    But the important point is that for the vast majority of 
those who do not want an impeachment, a 6-month Senate 
investigation with all of the attendant political and economic 
turmoil for all of those who want a proportional and sensible 
alternative shouldn't be muzzled. And so your testimony here, 
and this panel, may well be the most important that we will 
have because you have dealt so significantly with these fact 
questions that have been troubling us.
    Thank you, Mr. Chairman.
    Chairman Hyde. I thank you, Mr. Conyers. And I want to say 
that I too deeply appreciate the contribution, which was and is 
substantial, that you have made to the sum of our knowledge on 
this very difficult question. You have all been enormously 
helpful, highly qualified, very forthcoming, and you have made 
a great contribution.
    Now, we should take a 30-minute recess. But before I reach 
that happy point, I yield to Ms. Jackson Lee.
    Ms. Jackson Lee. Very briefly, Mr. Chairman, I would like 
to submit into evidence of this proceeding the Constitution of 
the United States, particularly noting that there is no 
prohibition on censure noted in the Constitution of the United 
States. I would like to submit this into the record, Mr. 
Chairman.
    Chairman Hyde. Certainly, without objection, even though 
ours is a government of delegated powers, but nonetheless, your 
motion is granted.
    Ms. Jackson Lee. I thank you very much, Mr. Chairman. I 
appreciate it.
    [The information follows:]
                   CONSTITUTION OF THE UNITED STATES
    We the People of the United States, in Order to form a more perfect 
Union, establish Justice, insure domestic Tranquility, provide for the 
common defence, promote the general Welfare, and secure the Blessings 
of Liberty to ourselves and our Posterity, do ordain and establish this 
Constitution for the United States of America.

                              Article. I.

    Section. 1. All legislative Powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a Senate and 
House of Representatives.
    Section. 2. The House of Representatives shall be composed of 
Members chosen every second Year by the People of the several States, 
and the Electors in each State shall have the Qualifications requisite 
for Electors of the most numerous Branch of the State Legislature.
    No Person shall be a Representative who shall not have attained to 
the age of twenty five Years, and been seven Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant of 
that State in which he shall be chosen.
    Representatives and direct Taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective Numbers, which shall be determined by adding to the 
whole Number of free Persons, including those bound to Service for a 
Term of Years, and excluding Indians not taxed, three fifths of all 
other Persons. The actual Enumeration shall be made within three Years 
after the first Meeting of the Congress of the United States, and 
within every subsequent Term of ten Years, in such Manner as they shall 
by Law direct. The Number of Representatives shall not exceed one for 
every thirty Thousand, but each State shall have at Least one 
Representative; and until such enumeration shall be made, the State of 
New Hampshire shall be entitled to chuse three, Massachusetts eight, 
Rhode-Island and Providence Plantations one, Connecticut five, New-York 
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten, North Carolina five, South Carolina five, and Georgia 
three.
    When vacancies happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies.
    The House of Representatives shall chuse their Speaker and other 
Officers; and shall have the sole Power of Impeachment.
    Section. 3. The Senate of the United States shall be composed of 
two Senators from each State, chosen by the Legislature thereof, for 
six Years; and each Senator shall have one Vote.
    Immediately after they shall be assembled in Consequence of the 
first Election, they shall be divided as equally as may be into three 
Classes. The Seats of the Senators of the first Class shall be vacated 
at the Expiration of the second Year, of the second Class at the 
Expiration of the fourth Year, and of the third Class at the Expiration 
of the sixth Year, so that one third may be chosen every second Year; 
and if Vacancies happen by Resignation, or otherwise, during the Recess 
of the Legislature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the Legislature, which 
shall then fill such Vacancies.
    No Person shall be a Senator who shall not have attained to the Age 
of thirty Years, and been nine Years a Citizen of the United States, 
and who shall not, when elected, be an Inhabitant of that State for 
which he shall be chosen.
    The Vice President of the United States shall be President of the 
Senate but shall have no Vote, unless they be equally divided.
    The Senate shall chuse their other Officers, and also a President 
pro tempore, in the Absence of the Vice President, or when he shall 
exercise the Office of President of the United States.
    The Senate shall have the sole Power to try all Impeachments. When 
sitting for that Purpose, they shall be on Oath or Affirmation. When 
the President of the United States is tried the Chief Justice shall 
preside: And no Person shall be convicted without the Concurrence of 
two thirds of the Members present.
    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.
    Section. 4. The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State bythe 
Legislature thereof; but the Congress may at any time by Law make or 
alter such Regulations, except as to the Places of chusing Senators.
    The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall by 
Law appoint a different Day.
    Section. 5. Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each shall 
constitute a Quorum to do Business; but a smaller Number may adjourn 
from day to day, and may be authorized to compel the Attendance of 
absent Members, in such Manner, and under such Penalties as each House 
may provide.
    Each House may determine the Rules of its Proceedings, punish its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member.
    Each House shall keep a Journal of its Proceedings, and from time 
to time publish the same, excepting such Parts as may in their Judgment 
require Secrecy; and the Yeas and Nays of the Members of either House 
on any question shall, at the Desire of one fifth of those Present, be 
entered on the Journal.
    Neither House, during the Session of Congress, shall, without the 
Consent of the other, adjourn for more than three days, nor to any 
other Place than that in which the two Houses shall be sitting.
    Section. 6. The Senators and Representatives shall receive a 
Compensation for their Services, to be ascertained by Law, and paid out 
of the Treasury of the United States. They shall in all Cases, except 
Treason, Felony and Breach of the Peace, be privileged from Arrest 
during their Attendance at the Session of their respective Houses, and 
in going to and returning from the same; and for any Speech or Debate 
in either House, they shall not be questioned in any other Place.
    No Senator or Representative shall, during the Time for which he 
was elected, be appointed to any civil Office under the Authority of 
the United States, which shall have been created, or the Emoluments 
whereof shall have been encreased during such time; and no Person 
holding any Office under the United States, shall be a Member of either 
House during his Continuance in Office.
    Section. 7. All Bills for raising Revenue shall originate in the 
House of Representatives; but the Senate may propose or concur with 
amendments as on other Bills.
    Every Bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a law, be presented to the 
President of the United States: If he approve he shall sign it, but if 
not he shall return it, with his Objections to that House in which it 
shall have originated, who shall enter the Objections at large on their 
Journal, and proceed to reconsider it. If after such Reconsideration 
two thirds of that House shall agree to pass the Bill, it shall be 
sent, together with the Objections, to the other House, by which it 
shall likewise be reconsidered, and if approved by two thirds of that 
House, it shall become a Law. But in all such Cases the Votes of both 
Houses shall be determined by Yeas and Nays, and the Names of the 
Persons voting for and against the Bill shall be entered on the Journal 
of each House respectively. If any Bill shall not be returned by the 
President within ten Days (Sundays excepted) after it shall have been 
presented to him, the Same shall be a Law, in like Manner as if he had 
signed it, unless the Congress by their Adjournment prevent its Return, 
in which Case it shall not be a Law.
    Every Order, Resolution, or Vote to which the Concurrence of the 
Senate and House of Representatives may be necessary (except on a 
question of Adjournment) shall be presented to the President of the 
United States; and before the Same shall take Effect, shall be approved 
by him, or being disapproved by him, shall be repassed by two thirds of 
the Senate and House of Representatives, according to the Rules and 
Limitations prescribed in the Case of a Bill.
    Section. 8. The Congress shall have Power To lay and collect Taxes, 
Duties, Imposts and Excises, to pay the Debts and provide for the 
common Defence and general Welfare of the United States; but all 
Duties, Imposts and Excises shall be uniform throughout the United 
States;
    To borrow Money on the credit of the United States;
    To regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes;
    To establish an uniform Rule of Naturalization, and uniform Laws on 
the subject of Bankruptcies throughout the United States;
    To coin Money, regulate the Value thereof, and of foreign Coin, and 
fix the Standard of Weights and Measures;
    To provide for the Punishment of counterfeiting the Securities and 
current Coin of the United States;
    To establish Post Offices and post Roads;
    To promote the Progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to their 
respective Writings and Discoveries;
    To constitute Tribunals inferior to the supreme Court;
    To define and punish Piracies and Felonies committed on the high 
Seas, and Offences against the Law of Nations;
    To declare War, grant Letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water;
    To raise and support Armies, but no Appropriation of Money to that 
Use shall be for a longer Term than two Years;
    To provide and maintain a Navy;
    To make Rules for the Government and Regulation of the land and 
naval Forces;
    To provide for calling forth the Militia to execute the Laws of the 
Union, suppress Insurrections and repeal Invasions;
    To provide for organizing, arming, and disciplining, the Militia, 
and for governing such Part of them as may be employed in the Service 
of the United States, reserving to the States respectively, the 
Appointment of the Officers, and the Authority of training the Militia 
according to the discipline prescribed by Congress;
    To exercise exclusive Legislation in all Cases whatsoever, over 
such District (not exceeding ten Miles square) as may, by Cession of 
Particular States, and the Acceptance of Congress, become the Seat of 
the Government of the United States, and to exercise like Authority 
over all Places purchased by the Consent of the Legislature of the 
State in which the Same shall be, for the Erection of Forts, Magazines, 
Arsenals, dock-Yards and other needful Buildings;--And
    To make all Laws which shall be necessary and proper for carrying 
into Execution the foregoing Powers and all other Powers vested by this 
Constitution in the Government of the United States, or in any 
Department or Officer thereof.
    Section. 9. The Migration or Importation of such Persons as any of 
the States now existing shall think proper to admit, shall not be 
prohibited by the Congress prior to the Year one thousand eight hundred 
and eight, but a Tax or duty may be imposed on such Importation, not 
exceeding ten dollars for each Person.
    The Privilege of the Writ of Habeas Corpus shall not be suspended, 
unless when in Cases or Rebellion or Invasion the public Safety may 
require it.
    No Bill of Attainder or ex post facto Law shall be passed.
    No Capitation, or other direct, Tax shall be laid, unless in 
Proportion to the Census of Enumeration herein before directed to be 
taken.
    No Tax or Duty shall be laid on Articles exported from any State.
    No Preference shall be given by any Regulation of Commerce or 
Revenue to the Ports of one State over those of another: nor shall 
Vessels bound to, or from, one State, be obliged to enter, clear or pay 
Duties in another.
    No Money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law; and a regular Statement and Account of the 
Receipts and Expenditures of all public Money shall be published from 
time to time.
    No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall, without 
the Consent of the Congress, accept of any present, Emolument, Office, 
or Title, of any kind whatever, from any King, Prince or foreign State.
    Section. 10. No State shall enter into any Treaty, Alliance, or 
Confederation; grant Letters of Marque and Reprisal; coin Money; emit 
Bills of Credit; make any Thing but gold and silver Coin a Tender in 
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law 
impairing the Obligation of Contracts, or grant any Title of Nobility.
    No State shall, without the Consent of the Congress, lay any 
Imposts or Duties on Imports or Exports, except what may be absolutely 
necessary for executing it's inspection Laws: and the net Produce of 
all Duties and Imposts, laid by any State on Imports or Exports, shall 
be for the Use of the Treasury of the United States; and all such Laws 
shall be subject to the Revision and Controul of the Congress.
    No State shall, without the Consent of Congress, lay any Duty of 
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any 
Agreement or Compact with another State, or with a foreign Power, or 
engage in War, unless actually invaded, or in such imminent Danger as 
will not admit of delay.

                              Article. II.

    Section. 1. The executive Power shall be vested in a President of 
the United States of America. He shall hold his Office during the Term 
of four Years, and, together with the Vice President, chosen for the 
same Term, be elected, as follows:
    Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors, equal to the whole Number of Senators 
and Representatives to which the State may be entitled in the Congress: 
but no Senator or Representative, or Person holding an Office of Trust 
or Profit under the United States, shall be appointed an Elector.
    The Electors shall meet in their respective States, and vote by 
Ballot for two Persons, of whom one at least shall not be an Inhabitant 
of the same State with themselves. And they shall make a List of all 
the Persons voted for, and of the Number of Votes for each; which List 
they shall sign and certify, and transmit sealed to the Seat of the 
Government of the United States, directed to the President of the 
Senate. The President of the Senate shall, in the Presence of the 
Senate and House of Representatives, open all the Certificates, and the 
Votesshall then be counted. The Person having the greatest Number of 
Votes shall be the President, if such Number be a Majority of the whole 
Number of Electors appointed; and if there be more than one who have 
such Majority, and have an equal Number of Votes, then the House of 
Representatives shall immediately chuse by Ballot one of them for 
President; and if no Person have a Majority, then from the five highest 
on the List the said House shall in like Manner chuse the President. 
But in chusing the President, the Votes shall be taken by States, the 
Representatives from each State having one Vote; a quorum for this 
Purpose shall consist of a Member or Members from two thirds of the 
States, and a Majority of all the States shall be necessary to a 
Choice. In every Case, after the Choice of the President, the Person 
having the greatest Number of Votes of the Electors shall be the Vice 
President. But if there should remain two or more who have equal Votes, 
the Senate shall chuse from them by Ballot the Vice President.
    The Congress may determine the Time of chusing the Electors, and 
the Day on which they shall give their Votes; which Day shall be the 
same throughout the United States.
    No Person except a natural born Citizen, or a Citizen of the United 
States, at the time of the Adoption of this Constitution, shall be 
eligible to the Office of President; neither shall any person be 
eligible to that Office who shall not have attained to the Age of 
thirty five Years, and been fourteen Years a Resident within the United 
States.
    In Case of the Removal of the President from Office, or of his 
Death, Resignation, or Inability to discharge the Powers and Duties of 
the said Office, the Same shall devolve on the Vice President, and the 
Congress may by Law provide for the Case of Removal, Death, Resignation 
or Inability, both of the President and Vice President, declaring what 
Officer shall then act as President, and such Officer shall act 
accordingly, until the Disability be removed, or a President shall be 
elected.
    The President shall, at stated Times, receive for his Services, a 
Compensation, which shall neither be encreased nor diminished during 
the Period for which he shall have been elected, and he shall not 
receive within that Period any other Emolument from the United States, 
or any of them.
    Before he enter on the Execution of his Office, he shall take the 
following Oath or Affirmation:--``I do solemnly swear (or affirm) that 
I will faithfully execute the Office of President of the United States, 
and will to the best of my Ability, preserve, protect and defend the 
Constitution of the United States.''
    Section. 2. The President shall be Commander in Chief of the Army 
and Navy of the United States, and of the Militia of the several 
States, when called into the actual Service of the United States; he 
may require the Opinion, in writing, of the principal Officer in each 
of the executive Departments, upon any Subject relating to the Duties 
of their respective Offices, and he shall have Power to Grant Reprieves 
and Pardons for Offences against the United States, except in Cases of 
Impeachment.
    He shall have Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided two thirds of the Senators present 
concur; and he shall nominate, and by and with the Advice and Consent 
of the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law: but the Congress may by Law 
vest the Appointment of such inferior Officers, as they think proper, 
in the President alone, in the Courts of Law, or in the Heads of 
Departments.
    The President shall have Power to fill up all Vacancies that may 
happen during the Recess of the Senate, by granting Commissions 
whichshall expire at the End of their next Session.
    Section. 3. He shall from time to time give to the Congress 
Information on the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and expedient; 
he may, on extraordinary Occasions, convene both Houses, or either of 
them, and in Case of Disagreement between them, with Respect to the 
Time of Adjournment, he may adjourn them to such Time as he shall think 
proper; he shall receive Ambassadors and other public Ministers; he 
shall take Care that the Laws be faithfully executed, and shall 
Commission all the Officers of the United States.
    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.

                             Article. III.

    Section. 1. The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish. The Judges, both 
of the supreme and inferior Courts, shall hold their Offices during 
good Behaviour, and shall, at stated Times, receive for their Services, 
a Compensation, which shall not be diminished during their Continuance 
in Office.
    Section. 2. The judicial Power shall extend to all Cases, in Law 
and Equity, arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their 
Authority;--to all Cases affecting Ambassadors, other public ministers 
and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to 
Controversies to which the United States shall be a Party;--to 
Controversies between two or more States;--between a State and Citizens 
of another State;--between Citizens of different States;--between 
Citizens of the same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and foreign 
States, Citizens or Subjects.
    In all Cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be Party, the supreme Court 
shall have original Jurisdiction. In all the other Cases before 
mentioned, the supreme Court shall have appellate Jurisdiction, both as 
to Law and Fact, with such Exceptions, and under such Regulations as 
the Congress shall make.
    The Trial of all Crimes, except in Cases of Impeachment, shall be 
by Jury; and such Trial shall be held in the State where the said 
Crimes shall have been committed; but when not committed within any 
State, the Trial shall be at such Place or Places as the Congress may 
by Law have directed.
    Section. 3. Treason against the United States, shall consist only 
in levying War against them, or in adhering to their Enemies, giving 
them Aid and Comfort. No Person shall be convicted of Treason unless on 
the Testimony of two Witnesses to the same overt Act, or on Confession 
in open Court.
    The Congress shall have Power to declare the Punishment of Treason, 
but no Attainder of Treason shall work Corruption of Blood, or 
Forfeiture except during the Life of the Person attainted.

                              Article. IV.

    Section. 1. Full Faith and Credit shall be given in each State to 
the public Acts, Records, and judicial Proceedings of every other 
State. And the Congress may by general Laws prescribe the Manner in 
which such Acts, Records and Proceedings shall be proved, and the 
Effect thereof.
    Section. 2. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States.
    A Person charged in any State with Treason, Felony, or other Crime, 
who shall flee from Justice, and be found in another State, shall on 
Demand of the executive Authority of the State from which he fled, be 
delivered up, to be removed to the State having Jurisdiction of the 
Crime.
    No Person held to Service or Labour in one State, under the Laws 
thereof, escaping into another, shall, in Consequence of any Law or 
Regulation therein, be discharged from such Service or Labour, but 
shall be delivered up on Claim of the Party to whom such Service or 
Labour may be due.
    Section. 3. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within the 
Jurisdiction of any other State; nor any State be formed by the 
Junction of two or more States, or Parts of States, without the Consent 
of the Legislatures of the States concerned as well as of the Congress.
    The Congress shall have Power to dispose of and make all needful 
Rules and Regulations respecting the Territory or other Property 
belonging to the United States; and nothing in this Constitution shall 
be so construed as to Prejudice any Claims of the United States, or of 
any particular State.
    Section. 4. The United States shall guarantee to every State in 
this Union a Republican Form of Government, and shall protect each of 
them against Invasion; and on Application of the Legislature, or of the 
Executive (when the Legislature cannot be convened) against domestic 
Violence.

                              Article. V.

    The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
Application of the Legislatures of two thirds of the several States, 
shall call a Convention for proposing Amendments, which, in either 
Case, shall be valid to all Intents and Purposes, as Part of this 
Constitution, when ratified by the Legislatures of three fourths of the 
several States, or by Conventions in three fourths thereof, as the one 
or the other Mode of Ratification may be proposed by the Congress; 
Provided that no Amendment which may be made prior to the Year One 
thousand eight hundred and eight shall in any Manner affect the first 
and fourth Clauses in the Ninth Section of the first Article; and that 
no State, without its Consent, shall be deprived of its equal Suffrage 
in the Senate.

                              Article. VI.

    All Debts contracted and Engagements entered into, before the 
Adoption of this Constitution, shall be as valid against the United 
States under this Constitution, as under the Confederation.
    This Constitution, and the Laws of the United States which shall be 
made in Pursuance thereof; and all Treaties made, or which shall be 
made, under the Authority of the United States, shall be the supreme 
Law of the Land; and the Judges in every State shall be bound thereby, 
anyThing in the Constitution or Laws of any state to the Contrary 
notwithstanding.
    The Senators and Representatives before mentioned, and the Members 
of the several State Legislatures, and all executive and judicial 
Officers, both of the United States and of the several States, shall be 
bound by Oath or Affirmation, to support this Constitution; but no 
religious Test shall ever be required as a Qualification to any Office 
or public Trust under the United States.

                             Article.  VII.

    The Ratification of the Conventions of nine States, shall be 
sufficient for the Establishment of this Constitution between the 
States so ratifying the same.
    Done in Convention by the Unanimous Consent of the States present 
the Seventeenth Day of September in the Year of our Lord one thousand 
seven hundred and Eighty seven and of the Independence of the United 
States of America the Twelfth. In witness whereof we have hereunto 
subscribed our Names,
                                   G+. Washington--Presidt.
                                   and deputy from Virginia

New Hampshire
    John Langdon
    Nicholas Gilman
Massachusetts
    Nathaniel Gorham
    Rufus King
Connecticut
    Wm. Saml. Johnson
    Roger Sherman
New York
    Alexander Hamilton
New Jersey
    Wil: Livingston
    David Brearley
    Wm. Paterson
    Jona: Dayton
Pennsylvania
    B Franklin
    Thomas Mifflin
    Robt Morris
    Geo. Clymer
    Thos. FitzSimons
    Jared Ingersoll
    James Wilson
    Gouv Morris
Delaware
    Geo: Read
    Gunning Bedford jun
    John Dickinson
    Richard Bassett
    Jaco: Broom
Maryland
    James McHenry
    Dan of St. Thos. Jenifer
    Danl Carroll
Virginia
    John Blair--
    James Madison Jr.
North Carolina
    Wm. Blount
    Richd. Dobbs Spaight
    Hu Williamson
South Carolina
    J. Rutledge
    Charles Cotesworth Pinckney
    Charles Pinckney
    Pierce Butler
Georgia
    William Few
    Abr Baldwin
                                       Attest William Jackson Secretary

               In Convention Monday, September 17th 1787.

                                Present

                             The States of

New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
South Carolina and Georgia.
Resolved,
    That the preceeding Constitution be laid before the United States 
in Congress assembled, and that it is the Opinion of this Convention, 
that it should afterwards be submitted to a Convention of Delegates, 
chosen in each State by the People thereof, under the Recommendation of 
its Legislature, for their Assent and Ratification; and that each 
Convention assenting to, and ratifying the Same, should give Notice 
thereof to the United States in Congress assembled. Resolved, That it 
is the Opinion of this Convention, that as soon as the Conventions of 
nine States shall have ratified this Constitution, the United States in 
Congress assembled should fix a Day on which Electors should be 
appointed by the States which shall have ratified the same, and a Day 
on which the Electors should assemble to vote for the President, and 
the Time and Place for commencing Proceedings under this Constitution. 
That after such Publication the Electors should be appointed, and the 
Senators and Representatives elected: That the Electors should meet on 
the Day fixed for the Election of the President, and should transmit 
their Votes certified, signed, sealed and directed, as the Constitution 
requires, to the Secretary of the United States in Congress assembled, 
that the Senators and Representatives should convene at the Time and 
Place assigned; that the Senators should appoint a President of the 
Senate, for the sole Purpose of receiving, opening and counting the 
Votes for President; and, that after he shall be chosen, the Congress, 
together with the President, should, without Delay, proceed to execute 
this Constitution.

                               By the Unanimous Order of the Convention

     AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA

                              Amendment I.

    Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to 
assemble, and to petition the Government for a redress of grievances.

                             Amendment II.

    A well regulated Militia, being necessary to the security of a free 
State, the right of the people to keep and bear Arms, shall not be 
infringed.

                             Amendment III.

    No Soldier shall, in time of peace be quartered in any house, 
without the consent of the Owner, nor in time of war, but in a manner 
to be prescribed by law.

                             Amendment IV.

    The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.

                              Amendment V.

    No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a Grand Jury, 
except in cases arising in the land or naval forces, or in the Militia, 
when in actual service in time of War or public danger; nor shall any 
person be subject for the same offence to be twice put in jeopardy of 
life or limb; nor shall be compelled in any criminal case to be a 
witness against himself, nor be deprived of life, liberty, or property, 
without due process of law; nor shall private property be taken 
forpublic use, without just compensation.

                             Amendment VI.

    In all criminal prosecutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the State and 
district wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed of 
the nature and cause of the accusation; to be confronted with the 
witnesses against him; to have compulsory process for obtaining 
witnesses in his favor, and to have the Assistance of Counsel for his 
defence.

                             Amendment VII.

    In Suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no 
fact tried by a jury, shall be otherwise re-examined in any Court of 
the United States, than according to the rules of the common law.

                            Amendment VIII.

    Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted.

                             Amendment IX.

    The enumeration in the Constitution, of certain rights, shall not 
be construed to deny or disparage others retained by the people.

                              Amendment X.

    The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States 
respectively, or to the people.

                             Amendment XI.

    The Judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one on the United States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State.

                             Amendment XII.

    The Electors shall meet in their respective states and vote by 
ballot for President and Vice-President, one of whom, at least, shall 
not be an inhabitant of the same state with themselves; they shall name 
in their ballots the person voted for as President, and in distinct 
ballots the person voted for as Vice-President, and they shall make 
distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of votes for 
each, which lists they shall sign and certify, and transmit sealed to 
the seat of the government of the United States, directed to the 
President of the Senate;--The President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the 
certificates and the votes shall then be counted;--The person having 
the greatest Number of votes for President, shall be the President, if 
such number be a majority of the whole number of Electors appointed; 
and if no person have such majority, then from the persons having the 
highest numbers not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the votes shall 
be taken by states, the representation from each state having one vote; 
a quorum for this purpose shall consist of a member or members from 
two-thirds of the states, and a majority of all the states shall be 
necessary to a choice. And if the House of Representatives shall not 
choose a President whenever the right of choice shall devolve upon 
them, before the fourth day of March next following, then the Vice-
President shall act as President, as in the case of the death or other 
constitutional disability of the President--The person having the 
greatest number of votes as Vice-President, shall be the Vice-
President, if such number be a majority of the whole number of Electors 
appointed, and if no person have a majority, then from the two highest 
numbers on the list, the Senate shall choose the Vice-President; a 
quorum for the purpose shall consist of two-thirds of the whole number 
of Senators, and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office of 
President shall be eligible to that of Vice-President of the United 
States.

                            Amendment XIII.

    Section 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their 
jurisdiction.
    Section 2. Congress shall have power to enforce this article by 
appropriate legislation.

                             Amendment XIV.

    Section 1. All persons born or naturalized in the United States and 
subject to the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities of citizens of 
the United States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny to any 
person within its jurisdiction the equal protection of the laws.
    Section 2. Representatives shall be apportioned among the several 
States according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But when the 
right to vote at any election for the choice of electors for President 
and Vice President of the United States, Representatives in Congress, 
the Executive and Judicial officers of a State, or the members of the 
Legislature thereof, is denied to any of the male inhabitants of such 
State, being twenty-one years of age, and citizens of the United 
States, or in any way abridged, except for participation in rebellion, 
or other crime, the basis of representation therein shall be reduced in 
the proportion which the number of such male citizens shall bear to the 
whole number of male citizens twenty-one years of age in such State.
    Section 3. No person shall be a Senator or Representative in 
Congress, or elector of President and Vice President, or hold any 
office, civil or military, under the United States, or under any State, 
who, having previously taken an oath, as a member of Congress, or as an 
officer of the United States, or as a member of any State legislature, 
or as an executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in insurrection 
or rebellion against the same, or given aid or comfort to the enemies 
thereof. But Congress may by a vote of two-thirds of each House, remove 
such disability.
    Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions and 
bounties for services in suppressing insurrection or rebellion, shall 
not be questioned. But neither the United States nor any State shall 
assume or pay any debt or obligation incurred in aid of insurrection or 
rebellion against the United States, or any claim for the loss or 
emancipation of any slave; but all such debts, obligations and claims 
shall be held illegal and void.
    Section 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article.

                             Amendment XV.

    Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any State on 
account of race, color, or previous condition of servitude.
    Section 2. The Congress shall have power to enforce this article by 
appropriate legislation.

                             Amendment XVI.

    The Congress shall have power to lay and collect taxes on incomes, 
from whatever source derived, without apportionment among the several 
States, and without regard to any census or enumeration.

                            Amendment XVII.

    The Senate of the United States shall be composed of two Senators 
from each State, elected by the people thereof, for six years; and each 
Senator shall have one vote. The electors in each State shall have the 
qualifications requisite for electors of the most numerous branch of 
the State legislatures.
    When vacancies happen in the representation of any State in the 
Senate, the executive authority of such State shall issue writs of 
election to fill such vacancies: Provided, That the legislature of any 
State may empower the executive thereof to make temporary appointments 
until the people fill the vacancies by election as the legislature may 
direct.
    This amendment shall not be so construed as to affect the election 
or term of any Senator chosen before it becomes valid as part of the 
Constitution.

                            Amendment XVIII.

    Section 1. After one year from the ratification of this article the 
manufacture, sale, or transportation of intoxicating liquors within, 
the importation thereof into, or the exportation thereof from the 
United States and all territory subject to the jurisdiction thereof for 
beverage purposes is hereby prohibited.
    Section 2. The Congress and the several States shall have 
concurrent power to enforce this article by appropriate legislation.
    Section 3. This article shall be inoperative unless it shall have 
been ratified as an amendment to the Constitution by the legislatures 
of the several States, as provided in the Constitution, within seven 
years from the date of the submission hereof to the States by the 
Congress.
    [Note.--The Eighteenth Amendment was ratified January 16, 1919. It 
was repealed by the Twenty-First Amendment, December 5, 1933.]

                             Amendment XIX.

    The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account of 
sex.
    Congress shall have power to enforce this article by appropriate 
legislation.

                             Amendment XX.

    Section 1. The terms of the President and Vice President shall end 
at noon on the 20th day of January, and the terms of Senators and 
Representatives at noon on the 3d day of January, of the years in which 
such terms would have ended if this article had not been ratified; and 
the terms of their successors shall then begin.
    Section 2. The Congress shall assemble at least once in every year, 
and such meeting shall begin at noon on the 3d day of January, unless 
they shall by law appoint a different day.
    Section 3. If, at the time fixed for the beginning of the term of 
the President, the President elect shall have died, the Vice President 
elect shall become President. If a President shall not have been chosen 
before the time fixed for the beginning of his term, or if the 
President elect shall have failed to qualify, then the Vice President 
elect shall act as President until a President shall have qualified; 
and the Congress may by law provide for the case wherein neither a 
President elect nor a Vice President elect shall have qualified, 
declaring who shall then act as President, or the manner in which one 
who is to act shall be selected, and such person shall act accordingly 
until a President or Vice President shall have qualified.
    Section 4. The Congress may by law provide for the case of the 
death of any of the persons from whom the House of Representatives may 
choose a President whenever the right of choice shall have devolved 
upon them, and for the case of the death of any of the persons from 
whom the Senate may choose a Vice President whenever the right of 
choice shall have devolved upon them.
    Section 5. Sections 1 and 2 shall take effect on the 15th day of 
October following the ratification of this article.
    Section 6. This article shall be inoperative unless it shall have 
been ratified as an amendment to the Constitution by the legislatures 
of three-fourths of the several States within seven years from the date 
of its submission.

                             Amendment XXI.

    Section 1. The eighteenth article of amendment to the Constitution 
of the United States is hereby repealed.
    Section 2. The transportation or importation into any State, 
Territory, or possession of the United States for delivery or use 
therein of intoxicating liquors, in violation of the laws thereof, is 
hereby prohibited.
    Section 3. This article shall be inoperative unless it shall have 
been ratified as an amendment to the Constitution by conventions in the 
several States, as provided in the Constitution, within seven years 
from the date of the submission hereof to the States by the Congress.

                            Amendment XXII.

    Section 1. No person shall be elected to the office of the 
President more than twice, and no person who has held the office of 
President, or acted as President, for more than two years of a term to 
which some other person was elected President shall be elected to the 
office of the President more than once. But this Article shall not 
apply to any person holding the office of President, when this Article 
was proposed by the Congress, and shall not prevent any person who may 
be holding the office of President, or acting as President, during the 
term within which this Article becomes operative from holding the 
office of President or acting as President during the remainder of such 
term.
    Section 2. This article shall be inoperative unless it shall have 
been ratified as an amendment to the Constitution by the legislatures 
of three-fourths of the several States within seven years from the date 
of its submission to the States by the Congress.

                            Amendment XXIII.

    Section 1. The District constituting the seat of Government of the 
United States shall appoint in such manner as the Congress may direct:
    A number of electors of President and Vice President equal to the 
whole number of Senators and Representatives in Congress to which the 
District would be entitled if it were a State, but in no event more 
than the least populous State; they shall be in addition to those 
appointed by the States, but they shall be considered, for the purposes 
of the election of President and Vice President, to be electors 
appointed by a State; and they shall meet in the District and perform 
such duties as provided by the twelfth article of amendment.
    Section 2. The Congress shall have power to enforce this article by 
appropriate legislation.

                            Amendment XXIV.

    Section 1. The right of citizens of the United States to vote in 
any primary or other election for President or Vice President, for 
electors for President or Vice President, or for Senator or 
Representative in Congress, shall not be denied or abridged by the 
United States or any State by reason of failure to pay any poll tax or 
other tax.
    Section 2. The Congress shall have power to enforce this article by 
appropriate legislation.

                             Amendment XXV.

    Section 1. In case of the removal of the President from office or 
of his death or resignation, the Vice President shall become President.
    Section 2. Whenever there is a vacancy in the office of the Vice 
President, the President shall nominate a Vice President who shall take 
office upon confirmation by a majority vote of both Houses of Congress.
    Section 3. Whenever the President transmits to the President pro 
tempore of the Senate and the Speaker of the House of Representatives 
has written declaration that he is unable to discharge the powers and 
duties of his office, and until he transmits to them a written 
declaration to the contrary, such powers and duties shall be discharged 
by the Vice President as Acting President.
    Section 4. Whenever the Vice President and a majority of either the 
principal officers of the executive departments or of such other body 
as Congress may by law provide, transmit to the President pro tempore 
of the Senate and the Speaker of the House of Representatives their 
written declaration that the President is unable to discharge the 
powers and duties of his office, the Vice President shall immediately 
assume the powers and duties of the office as Acting President.
    Thereafter, when the President transmits to the President pro 
tempore of the Senate and the Speaker of the House of Representatives 
has written declaration that no inability exists, he shall resume the 
powers and duties of his office unless the Vice President and a 
majority of either the principal officers of the executive department 
or of such other body as Congress may by law provide, transmit within 
four days to the President pro tempore of the Senate and the Speaker of 
the House of Representatives their written declaration that the 
President is unable to discharge the powers and duties of his office. 
Thereupon Congress shall decide the issue, assembling within forty-
eight hours for that purpose if not in session. If the Congress, within 
twenty-one days after receipt of the latter written declaration, or, if 
Congress is not in session, within twenty-one days after Congress is 
required to assemble, determines by two-thirds vote of both Houses that 
the President is unable to discharge the powers and duties of his 
office, the Vice President shall continue to discharge the same as 
Acting President; otherwise, the President shall resume the powers and 
duties of his office.

                             Amendment XXVI

    Section 1. The right of citizens of the United States, who are 
eighteen years of age or older, to vote shall not be denied or abridged 
by the United States or by any State on account of age.
    Section 2. The Congress shall have power to enforce this article by 
appropriate legislation.

                            Amendment XXVII

    No law varying the compensation for the services of the Senators 
and Representatives shall take effect, until an election of 
Representatives shall have intervened.

    Chairman Hyde. Thank you.
    And now I will try again. We will have a half-hour recess. 
Please come back at the end of a half-hour.
    Chairman Hyde. The committee will come to order.
    We are very pleased to welcome Mr. Charles F. C. Ruff, 
Counsel to the President, a very distinguished member of the 
bar, as our final witness. Mr. Ruff became White House Counsel 
last year and is a longtime and widely respected member of 
Washington's legal community as well as the rest of the 
community. He was the U.S. Attorney in the District of Columbia 
from 1979 until 1982 and the fourth and final Watergate special 
prosecutor.
    Welcome, Mr. Ruff. Would you please raise your right hand?
    [Witness sworn.]
    Chairman Hyde. Thank you. Let the record reflect the 
witness answered the question in the affirmative.
    Mr. Ruff, you are recognized for 2 hours to make a 
statement.

    TESTIMONY OF CHARLES F.C. RUFF, COUNSEL TO THE PRESIDENT

    Mr. Ruff. Thank you, Mr. Chairman. I probably will not use 
all of that time because, very candidly, having watched these 
proceedings with interest for the last 2 days, it seems to me 
that perhaps the most productive thing I can do and my 
colleagues can do is to respond to the questions of this 
committee. But I will, with the Chair's permission, speak for 
awhile about some of the issues that I think are important for 
all of us to understand.
    Mr. Chairman, Congressman Conyers, members of the 
committee, as Counsel to the President, I appear before you 
today on behalf of the person who under our Constitution has 
twice been chosen by the people to head one of the three 
coordinate branches of government. Necessarily, I appear also 
on behalf of the man whose conduct has brought us to what for 
all of us is this unwelcome moment. Neither the President nor 
anyone speaking on his behalf will defend the morality of his 
personal conduct. The President had a wrongful relationship 
with Monica Lewinsky. He violated his sacred obligations to his 
wife and daughter. He misled his family, his friends, his 
colleagues and the public, and in doing so he betrayed the 
trust placed in him not only by his loved ones but by the 
American people.
    The President knows that what he did was wrong. He has 
admitted it. He has suffered privately and publicly. He is 
prepared to accept the obloquy that flows from his misconduct 
and he recognizes that, like any citizen, he is and will be 
subject to the rule of law. But, Mr. Chairman, the President 
has not committed a high crime or misdemeanor. His conduct, 
although morally reprehensible, does not warrant impeachment. 
It does not warrant overturning the mandate of the American 
electorate.
    If statements in this body and to the press accurately 
reflect what is in your minds and hearts, many in the Majority 
have already reached a verdict. I hope that for some that is 
not true. Indeed, if there is only one whose mind remains open, 
I will do my best to respond to your questions, to address your 
concerns, and to try to convince you that your constitutional 
duty, your historical duty, and your duty to the people you 
represent, is to vote against any article of impeachment.
    In the nature of this extraordinary proceeding, no one can 
claim the ability to reach the absolute right answer. No one 
can claim to be free from doubt. But when all the questions 
have been asked and answered, when all the debate has ended, 
and when you look within yourselves and ask should I vote to 
exercise the most awesome power I am granted in our system of 
government, I have no doubt that you will reach your decisions 
on the merits and, I hope, unswayed by mere partisanship.
    This committee has heard much in the last 2 days and in 
prior hearings on the subject of what the Founding Fathers 
meant to include within the term ``high crimes and 
misdemeanors,'' and I will not even attempt to engage in the 
kind of scholarly discourse that has filled this room over the last 
days and weeks. But I suggest to you that although there are 
differences of opinion which have been voiced, the weight of scholarly 
and historical teaching is on one side: nothing the President did falls 
within the constitutional definition of an impeachable offense.
    Yes, there were witnesses who disagreed; enough to give 
anyone who wishes it some intellectual cover. But I suggest to 
you that any fair-minded observer must conclude that the great 
weight of the historical and scholarly evidence leads to the 
conclusion that in order to have committed an impeachable 
offense, the President must have acted to subvert our system of 
government. And members of the committee, that did not happen.
    There has been a tendency, I think, in the debate over 
standards, to conflate some of the issues in what may not be a 
very helpful fashion. Let me say that there is one thing that I 
think all would agree on, and that is that the framers made it 
clear in their debate and in the drafting of article II, 
section 4, that they intended to place substantial constraints 
on the use of the impeachment power. They used language flowing 
directly from the history of impeachments in England that was 
clearly designed to reach conduct that involved abuse of 
official power.
    Within those constraints, however, and quite rightly, the 
framers did not and could not anticipate the specific 
circumstances that might give rise even to the consideration of 
impeachment. Instead, they made it clear that in the nature of 
our republican form of government, impeachment of the President 
was not to be the equivalent of an expression of disagreement, 
but was to be reserved for only the most serious matters that 
threaten the very fabric of our political structure.
    It is not enough to say, however, that the issue must be 
decided on a case-by-case basis, for that suggests that what is 
impeachable is to be left to the unfettered judgment of each 
Congress. Even if, as the events of 1974 and the events of 1998 
reveal, it is not possible to set down rules that will govern 
every case, it is possible to set down principles, and we must. 
And those principles must be faithful to the intent of the 
framers and, most importantly, must be consistent with the form 
of government we live under and the delicate relationship 
between the legislative branch and the executive branch that is 
the hallmark of that government.
    The debate over whether misconduct or even criminal conduct 
arises out of personal rather than official matters is in some 
sense misguided, I think. One can certainly conceive of acts 
arising out of a purely personal matter that would be 
presumptively impeachable, bribery of a judge to rule in the 
President's favor in some private matter, but that is not to 
say that you should ignore the roots from which a President's 
misconduct stems. If he were to perjure himself about some 
serious official act he had taken, one might find that he had 
abused his office. On the other hand, if perjury arose in a 
purely personal setting, one could sensibly ask, indeed should 
sensibly ask, whether--no matter how serious such a violation 
may be when viewed in the abstract, he has demonstrated an 
inability to continue to lead the Nation, which must be the 
test for each of you.
    One need only look to something that has been discussed at 
great length before this committee, and that is the decision in 
1974, even in the face of very strong evidence, not to return 
an article of impeachment based on President Nixon's alleged 
tax evasion, to test for yourself whether there indeed is a 
dividing line of constitutional importance between misconduct 
arising out of official matters and misconduct arising out of 
personal matters. But the core principle governing your 
deliberation should be that the only conduct that merits the 
drastic remedy of impeachment is that which subverts our system 
of government or renders the President unfit or unable to 
govern.
    Such a standard impresses on all of us the recognition that 
impeachment is indeed a grave act of extraordinary proportions, 
to be taken only when no other response is adequate to preserve 
the integrity of government
    Now you must, of course, as you all recognize far better 
than I, not set so high a bar as to make it impossible to act 
when our system of government is threatened, but you must not 
set so low a bar that you encourage future Congresses to set 
foot on this perilous path when the matter is uncertain and 
there is a danger that partisan forces alone will tip the 
balance. We should always look to the political process to deal 
with officials who breach their public trust. Impeachment must 
be the last resort.
    Now, I want to talk very briefly about the record before 
you, because there has been much discussion on that subject. 
Yesterday we were chastised by some members of the Majority for 
not bringing forward so-called fact witnesses, as though 
somehow the burden was on us to bring that kind of evidence 
before the committee.
    Now, I admit that I come to this exercise with the 
instincts of a former prosecutor and a former defense lawyer, 
but I really found that criticism to turn the world I know on 
its head.
    This committee has determined in its wisdom simply to 
accept at face value all of the conclusions reached in the 
Independent Counsel's referral and to look to whatever backup 
information was provided in support of those conclusions. But 
with that decision, I suggest to you, comes the obligation to 
look into that record and to ask what the witnesses really 
said.
    It seemed odd to me, as I listened to that criticism, that 
the committee should accept a predigested conclusion and then 
turn to the accused and say, bring us witnesses to convince us 
we were wrong.
    What we tried to do in the submission that we gave to the 
committee yesterday, and what I will do much more briefly 
today, is to show you that your premise is wrong; that the very 
record on which you rely does not support the conclusion it 
purports to reach.
    Some time ago, when Independent Counsel Starr testified, my 
colleague, Mr. Kendall, asked him whether he had ever met any 
of the witnesses on whom his referral relies. We asked that not 
out of some desire to launch an ad hominem attack on Mr. Starr, 
but because it seemed to us that some personal sense of the 
witnesses on whom the referral was relying, in recommending so 
grave a matter as the impeachment of the President, was 
important. It was important for him in making his judgments and 
important for you in making your judgments about the 
reliability of the evidence before you and the reliability of 
the Independent Counsel's recommendation.
    You must, I think, also ask as you look to that record and 
test whether it is adequate for your purposes, did the 
Independent Counsel come to its task with the same sense of 
constitutional gravity that must guide these proceedings? Was there 
anyone in the Office of Independent Counsel who questioned the 
credibility of particular testimony or asked whether all the relevant 
facts were being considered?
    Even if occasionally heated in its rhetoric, this 
committee's debates do lend to this process some of the value 
of the adversarial give-and-take that trial lawyers believe is 
important in seeking the truth. But none of that healthy 
tension between adversaries was brought to bear on the 
witnesses who appeared before the grand jury.
    The members here are left with essentially the cold text of 
the referral and its supporting materials, followed by--and I 
truly do not mean to speak unkindly of the Independent 
Counsel--a recitation of that text by a witness who was, in all 
candor, equally impervious to any efforts to reach behind the 
surface and touch the reality of the events that are at issue 
here.
    In our memorandum submitted to you yesterday, we attempted 
to set out a point-by-point rebuttal of the 11 grounds advanced 
by the Independent Counsel. We even, and I am sorry, 
Congressman Inglis--he doesn't appear to be here--set out some 
facts, and I will talk about those.
    Today I want to touch only on some of the issues raised in 
the referral for the purposes of pointing out for the committee 
its principal deficiencies and to highlight those areas in 
which myth appears to have replaced fact in the committee's 
debates and in public discourse.
    I want to begin by coming to grips directly with the issue 
that I think has been the principal focus of the committee's 
attention and concern: the President's grand jury testimony. We 
take this as our starting point to address the concerns oft-
stated by Congressman Graham and others, whether if the 
President were proved to have committed perjury before the 
grand jury, such conduct would, without more, merit 
impeachment.
    Mr. Chairman, members of the committee, we firmly believe, 
first, that the President testified truthfully before the grand 
jury; but, second, that no matter what judgment you reach about 
that testimony, there could be no basis for impeachment on any 
reasonable reading of the constitutional standards.
    But that said, we do want to use our time today to address 
the issues that appear to be most troubling to the committee, 
for we recognize that only by doing so can we assist you in 
performing your constitutional duties.
    I need to stop here because I want to address an issue that 
probably has been heard, bruited about more frequently than any 
other over the course of this committee's work, and it falls 
under the heading, I suppose, of legalisms.
    What are they? Well, whatever they are, they have caused a 
great deal of pain to those of us engaged in trying to 
represent the President over the last many months. I and my 
fellow lawyers have been accused by the media and by some of 
you, heaven forfend, of actually employing legalisms in 
defending our client. And, Mr. Chairman, I have to plead guilty 
on my behalf and on behalf of every lawyer who ever argued some 
point of law or nuanced fact to establish his client's 
innocence. But I am worried here not about whether lawyers will 
ultimately recover from these attacks, I am worried that our 
sometimes irresistible urge to practice our profession will 
stand in the way of securing a just result in this very grave 
proceeding for this very special client.
    However, I do suggest that it is not legalistic to point 
out that the President did not say what some accuse him of 
saying. It is not legalistic to point out that a witness did 
not say what some rely on her testimony to establish. It is not 
legalistic to point out that a witness was asked poorly framed 
or ambiguous questions, and it is not legalistic to argue that 
a witness' answer was technically true, even if not complete. 
Yet, however proper it may be to make those arguments in a 
proceeding such as this one and for a witness such as the 
President, there is a risk that they will get in the way of 
answering the ultimate question: Did the President do something 
so wrong and so destructive of his constitutional capacity to 
govern that he should be impeached?
    Even if we were successful, as I am confident we would be, 
in defending the President in a courtroom, that would not 
suffice to answer that question. For it is within your power, 
even if hesitantly exercised, to decide that even though there 
is insufficient proof to establish that the President committed 
perjury, he nonetheless should be impeached. But I suggest to 
you that even then, our oft-criticized legalisms are relevant 
to you. They are relevant because they were not just dreamed up 
by scheming lawyers looking for a good closing argument. 
Instead, they reflect the judgments of lawyers, judges and, 
yes, legislators through the centuries, that we must take 
special care when we seek to accuse a witness of having 
violated his oath.
    Among the protections that the law has created, including 
laws enacted by this body, are the requirement that the witness 
intentionally testified falsely; that his testimony be 
material; that the question not be ambiguous; that the burden 
is on the questioner to ask the right question; and that the 
witness may be truthful but nonetheless misleading, without 
having violated the law. The Supreme Court has so told us.
    It cannot be the rule, to add to an old phrase, that close 
only counts in horseshoes, hand grenades and perjury. The 
Supreme Court in Bronston made it clear that our adversarial 
system requires that we take great care when we ask whether a 
witness has perjured himself. It made clear that we rely 
largely on the adversarial process, particularly in civil 
cases, to test the truthfulness of witness testimony; and we do 
not, as the panel preceding me I think made eminently clear, 
look to prosecutors to police the civil litigation system.
    What does it really mean to say that these are legalisms? 
Well, granting the system's belief in the sanctity of the oath, 
which no one would deny, they reflect the judgment of society, 
of the legislature, of the judiciary, that those who would 
charge perjury must bear a heavy burden.
    The Office of Independent Counsel would have the committee 
believe that in three respects the President committed perjury 
in his testimony before the grand jury: first, by stating that 
his relationship with Miss Lewinsky began in February 1996 
rather than November 1995; second, by stating that he believed 
that a particular form of intimate activity was not covered by 
the definition of sexual relations approved by Judge Wright in 
the Jones case; and third, by stating that he had not engaged 
in specific types of sexual conduct, theoretically in order to 
conform his testimony to his civil deposition.
    Now as to the first of these, you must begin your 
consideration with the proposition that the President 
acknowledged to the grand jury that he did have a wrongful 
intimate relationship with Ms. Lewinsky. What then might have 
led him to change by 3 months the date on which that 
relationship began? Well, the referral surmises, it must have 
been because although the President was prepared to make the 
most devastating admission of misconduct any husband and father 
could imagine, he still wanted to have the grand jury believe 
that when their relationship began, Ms. Lewinsky was a 22-year-
old employee rather than a 22-year-old intern.
    Well, putting aside for the moment the fact that under no 
circumstances would any reasonable prosecutor or any judge or 
jury find such a discrepancy material, there is absolutely no 
proof of any such purpose on the President's part. Not one 
witness, including Ms. Lewinsky, even suggested such a thing.
    The only proof the referral offers is a mischaracterization 
of the record; the contention that the President's concern 
about Ms. Lewinsky--about Ms. Lewinsky's badge reflected 
concern about her status, that is as an intern, rather than as 
was clearly the case, her ability to move freely in the West 
Wing of the White House. Other than this misleading 
representation, we are left only with the referral's bare 
speculation, clearly contrived simply in order to find some 
fine point in the President's testimony that it could trumpet 
as false.
    As to the second of the three perjury allegations, the 
Independent Counsel would have the committee find that the 
President testified falsely, because the Independent Counsel 
has concluded that the President's statement of his own belief 
in the meaning of the definition of sexual relations in the 
Jones case is not credible.
    At least here the Independent Counsel is candid enough to 
acknowledge that he has no evidentiary basis for that 
conclusion; the referral simply states it to be the case and 
moves on.
    I suggest that those of you who have been prosecutors know 
as a matter of practical experience, and those of you who have 
not been prosecutors or even lawyers know as a matter of common 
sense, that no one could or would ever be charged with perjury 
because the prosecutor did not find credible a witness' 
statement of his personal belief, much less his personal belief 
about the meaning of a definition used in a civil deposition.
    And so we come to the third. The referral alleges that the 
President lied when he admitted having one form of sexual 
contact with Ms. Lewinsky but denied having certain other forms 
of contact, as the Independent Counsel would have it, in order 
to make his grand jury testimony consistent with the definition 
under which he testified in the Jones deposition.
    We will not drag the committee into the salacious muck that 
fills the referral. Instead, let each member assume that Ms. 
Lewinsky's version of the events is correct; and then ask, am I 
prepared to impeach the President because, after having 
admitted having engaged in egregiously wrongful conduct, he 
falsely described the particulars of that conduct?
    Let each member even assume that the President testified as 
he did because he did not want to admit that in a civil 
deposition, confronted with a narrowly, even oddly, framed 
definition, he had succeeded in misleading opposing counsel; 
and then ask yourself, am I prepared to impeach the President 
for that?
    The answer must be no.
    Does it not speak volumes that after 4 hours of hostile 
interrogation by prosecutors armed with information from 
countless documents and witnesses, the referral is able to 
identify only these three instances that even it is prepared to 
argue constitute false testimony?
    The Independent Counsel had the opportunity to press the 
President on every point of his Jones testimony that they might 
have thought was false or misleading. They were experienced 
cross-examiners, unfettered by judicial supervision, and this 
is what they accomplished.
    When one scrapes away all the rhetoric, what one finds is 
this: The referral alleges that the President lied to a grand 
jury about the details of sexual conduct, not to conceal his 
wrongful relationship with a 22-year-old employee, but to avoid 
admitting that in a civil deposition, he had misled plaintiff's 
counsel about an embarrassing matter that the Court ultimately 
found immaterial.
    Now, I do not in any sense, and nor would any of my 
colleagues, suggest that we take false testimony lightly. We 
are, as most of you are, members of a profession that values 
truthful testimony. What we do suggest is that if you were to 
conclude as to this aspect of their relationship that Ms. 
Lewinsky was telling you the truth and the President was not, 
you might know--no, you should conclude that his conduct was 
wrong, deserving of severe condemnation; but you could not in 
good conscience and consistent with your constitutional 
responsibility conclude that the President should be impeached.
    Surely the same result must follow to the extent that the 
referral alleges that the President committed perjury in the 
Jones deposition.
    As any fair reading of the deposition must conclude, the 
questions were oddly and vaguely framed. The Jones counsel 
didn't follow up when they had the opportunity. Counsel were 
indeed invited, by the President's lawyer, to ask specific 
detailed questions and declined to do so. They decided to 
proceed on the basis of a truncated, artificial definition of 
sexual relations.
    The President has said that he made no effort to be 
helpful, that he did not want to reveal his relationship, 
understandably. His answers were frequently evasive and 
incomplete, as my colleague, Mr. Craig said yesterday, even 
maddening. They were misleading but they were not perjurious 
and, a fortiori, they cannot be the basis for an impeachment.
    Now this conclusion is, in my view, only fortified by an 
assessment of the remaining allegations in the OIC referral. 
The President did not obstruct justice. He did not tamper with 
witnesses. He did not abuse the powers of his office. The 
referral's overreaching claims of impropriety are themselves 
but an attempt to lend artificial weight to allegations of 
perjury that, standing alone, Independent Counsel knew could 
not support the result for which he has been such a zealous 
advocate.
    Let me examine at least part of the record that is before 
you. If the committee is going to rely on the testimony before 
it, contained in the submissions from the Independent Counsel, 
it must take all of that testimony. It cannot accept the 
Independent Counsel's picking and choosing. It cannot accept 
the Independent Counsel's assessment of the credibility of 
witnesses.
    Let me just touch on two examples that demonstrate, 
Ibelieve, how the committee can be misled by the referral into assuming 
a reality that does not exist.
    First is the Independent Counsel's charge that the 
President conspired with Ms. Lewinsky to conceal gifts he had 
given her. The central events, as the Independent Counsel has 
described them, are these: that on Sunday, December 28th, 1997, 
Ms. Lewinsky visited the President at the White House. The 
Independent Counsel alleges they discussed the fact--in quotes, 
they discussed the fact that she had received a subpoena to 
testify in the Jones case and to produce any gifts that she 
had.
    The President then gave Ms. Lewinsky a number of gifts 
because he believed she was moving to New York and it was 
Christmas time.
    She went back to her apartment and sometime thereafter, on 
that day, according to the Independent Counsel, Betty Currie, 
the President's secretary, called and told Ms. Lewinsky that 
she understood that Ms. Lewinsky had something for her. Ms. 
Currie then drove to Ms. Lewinsky's apartment, took the gifts 
from her and put them under her bed. That is the essence of the 
Independent Counsel's description as it tries to deal with 
whether this constituted an obstruction of justice.
    Now, the introduction to this issue as offered by 
Independent Counsel when he testified before you was that the 
President and Monica Lewinsky on December 28th, quote, met and 
discussed what should be done with the gifts subpoenaed from 
Ms. Lewinsky.
    If you look at the record before you, I suggest to you you 
will find little or nothing to support that conclusion. For one 
thing, to the extent one is trying to determine whether indeed 
the President of the United States engaged in some obstruction 
of justice by urging or causing the concealment of evidence in 
the Jones case, begin by noting that there is not one single 
suggestion anywhere in any testimony that the President 
suggested, brought up, hinted at the notion of Ms. Lewinsky's 
concealing these gifts, in any manner.
    Note as well that there is not one iota of proof that the 
President ever even mentioned Betty Currie in the context of 
this gift discussion. Note as well that Monica Lewinsky gave at 
least 10, and there may be more, versions of this event. The 
Independent Counsel chose one, the one the Independent Counsel 
thought was most injurious, most reflective of what that office 
believed to have been improper conduct. They don't tell you 
about the other nine. They don't tell you about all of the ones 
in which Ms. Lewinsky doesn't mention the President saying 
anything to her or, at worst, says, uhm, I will think about it. 
Doesn't mention the ones in which the story they want to tell 
is not reflected in their critical witness' testimony.
    And if you move to the issue of who triggered the picking 
up of the gifts, you face a comparable problem. According to 
what I have to say is a simplistic summation by the Office of 
Independent Counsel, it is easy. Betty Currie called Monica 
Lewinsky; said, the President tells me you have got something 
for me to pick up, or I understand that you have something for 
me to pick up; all of which fits neatly into a theory that it 
all must have happened at the President's instigation.
    The problem is, Betty Currie says she never had such a 
conversation with the President. Betty Currie says, Monica 
Lewinsky called me. The President says he never had such a 
conversation with Betty Currie; didn't know anything about 
Betty Currie going to pick up gifts.
    Where is that? Where is that in the Independent Counsel's 
assessment of its case?
    Indeed, presumably it is the Independent Counsel's theory 
that the reason for this transfer of the gifts from Monica 
Lewinsky to Betty Currie had directly to do with the Jones 
subpoena. The problem with that is that what Betty Currie says 
about her conversations with Monica Lewinsky is nothing about 
Jones; references to people asking about the gifts and, in 
particular, a reporter, Michael Isikoff. Indeed, it is 
interesting that, in possession of Betty Currie's description 
of that telephone call, that conversation, the Independent 
Counsel never even asked Monica Lewinsky, is that right? Did 
you really say to Betty Currie that the reason you wanted to 
get rid of these gifts was because people were asking you, 
including Michael Isikoff? Never even asked her the question, 
much less put it before this committee.
    But let me point not to conflicting testimony, one version 
by Ms. Lewinsky, another version by Ms. Currie. Let me point to 
the actual events about which there is no conflict on December 
28th. On that day, the President gave gifts to Ms. Lewinsky. 
The Independent Counsel would have this committee believe that 
on the very day in which the President and Ms. Lewinsky, and 
maybe Betty Currie, are conspiring to get rid of the gifts that 
she already had, the President added to the pile. That's very 
strange conduct for a bunch of conspirators. Very strange 
conduct.
    Why would the President, so concerned about the possibility 
that she might have to turn over gifts, give her a bunch and 
encourage her to send them all to Betty Currie on the same day? 
I don't think there is a sensible answer to that question; 
certainly not one offered by the Independent Counsel.
    Let me just briefly suggest to you that a similar analysis 
on the issue of the job search leads to the same result. The 
referral would have you believe that there was an inextricable 
link between the assistance given to Monica Lewinsky in 
searching for a job and her role in the Jones case, either as a 
witness or in connection with her affidavit. It does so, 
although I must say it does admit that there is only 
circumstantial evidence to support the theory, by offering a 
chronology that essentially focuses only on the events of late 
December and January. And indeed if you look at pages 183 to 
184 of the referral, you will see that they talk about what 
happens on January 5th, Monica Lewinsky declines the U.N. job; 
January 7th, Monica Lewinsky signs the affidavit and Vernon 
Jordan informs the President that the affidavit has been 
signed. January 8th, the very next day, Ms. Lewinsky is 
interviewed by MacAndrews & Forbes, on Vernon Jordan's 
recommendation. Shortly thereafter, after it is reported that 
that interview did not go very well, Vernon Jordan calls Ron 
Perlman, and ultimately Ms. Lewinsky is reinterviewed and 
offered a job.
    What could possibly be more incriminating?
    Well, you might want to know, as I am sure you do if you 
have done your homework and you have looked at this record, 
that Monica Lewinsky was looking for a job months before any of 
this happened. Mainly, candidly, she wanted a job in the White 
House; spent a lot of the spring of 1997 looking for a job in 
the White House.
    Now, there was one person who I guarantee you from personal 
experience in the last 2 years could have gotten her a job in the White 
House. That's the President of the United States. It didn't happen; 
never pushed the button, never called anybody and said put her back in 
legislative affairs, give her a job with them. It didn't happen. 
Strange.
    Indeed, if you look at the record you will see that the 
President gave only limited assistance to Ms. Lewinsky in her 
job search, never put any pressure on anybody. Vernon Jordan 
has helped a lot of people in this town and he helped Monica 
Lewinsky, and he didn't do it because she was a witness in the 
Jones case or because she was going to file an affidavit.
    Monica Lewinsky told the President as early as July that 
she wanted to move to New York. The reason for that is she had 
been told by her friend, Linda Tripp, that she wasn't going to 
get a job in the White House. Failing that, New York looked 
good to her.
    When the issue of the U.N. job arose, she pursued it during 
the summer, and Vernon Jordan begins to help her later in the 
fall, and met with her in November. And at the same time, by 
the way, just so that the conspiracy gets broader and broader, 
Ken Bacon at the Pentagon, her boss, was helping to get her a 
job, too.
    You will search the referral in vain for an honest 
description of these events. And those are facts, not new, 
because they have been resting in your hands for months, but 
new if you ask the question: Were they in the referral; have 
they been the focus of discussion? In that sense, I suggest to 
you, members of the committee, that they are new and they are 
important.
    And one last piece on this subject. To the extent that it 
has been suggested that there was some linkage between the job 
search and the filing of her affidavit in the Jones case, I 
direct your attention to Ms. Lewinsky's interview with the FBI 
on July 27th in which she said, as clearly as anyone possibly 
could, there was no agreement to sign the affidavit in return 
for a job. You can search for awhile, too, before you find that 
in the referral.
    Indeed, it is noteworthy that Ms. Lewinsky's friend, Linda 
Tripp, was the one who recommended, at a time when we now know 
she had other roles in life, not signing the affidavit until 
she had a job. Now this is not a new fact, because we have been 
very vocal about it from the very beginning, but it is a fact 
that isn't in the referral in any meaningful sense. And there 
is, of course, Ms. Lewinsky's statement in the grand jury, not 
in response to any question from a prosecutor but in response 
to a question from a conscientious grand juror. And she said, 
Ms. Lewinsky said: ``I think because of the public nature of 
how this investigation has been and what the charges have been 
that are aired, I would just like to say that no one ever asked 
me to lie. I was never promised a job for my silence.''
    Lastly and very briefly, given what we surmise to be the 
articles that may be under consideration here, although of 
course we have not been given any specific information about 
what they may contain and thus our defense is modestly 
handicapped, let me touch very briefly on the issue of abuse of 
power in the assertion of executive privilege.
    From the very first day that this story broke in January of 
this year, impeachment has loomed on the horizon for all of us 
in the White House.
    We were faced with the truly unique experience of coping 
with a grand jury inquiry by a prosecutor who had a statutory 
mandate to inquire into whether there were grounds for 
impeachment of the President. I considered personally the 
question of whether we should raise any issue of executive 
privilege on behalf of the President in response to any 
documents that were subpoenaed or questions asked of particular 
witnesses. We fully understood from earlier litigation what our 
obligations were when the issue of executive privilege arises. 
It is to assess whether indeed the President had conversations 
which go to the essence of his official responsibilities and 
which need to be preserved as confidential so that he can, in 
fact, receive the candid and sensible advice to which he is 
entitled.
    But step 1, whenever we contemplate assertion of executive 
privilege, is accommodation. There are some on this committee 
with whom we have engaged in accommodation in other settings in 
similar situations, and we do so as well when prosecutors seek 
information from us.
    We accommodate by trying to get into the hands of, in this 
case, the prosecutors and, in some cases, congressional 
committees the facts, information which they need in order to 
perform their duty, and to screen off only those limited areas 
of inquiry that go to the heart of the confidential advice and 
discussion between the President and his senior advisers, and 
that is what we did here.
    We tried, albeit unsuccessfully, to accommodate the 
interests of the Independent Counsel, and only when he rejected 
all efforts towards accommodation were we required upon his 
filing of a motion to compel to assert executive privilege, and 
we did so in two areas with respect to two nonlawyer staff 
members of the White House, and ultimately--although initially 
only one lawyer, ultimately three lawyers, the latter really 
being linked to a wholly separate area of disagreement having 
to do with attorney/client privilege.
    Now, one cannot read the Independent Counsel's description 
of what happened in the executive privilege area and come away, 
I think, with any true understanding of what happened. There is 
no indication of our efforts to accommodate, no indication that 
we understood the need to provide facts about the underlying 
conduct at issue, indeed no indication that we produced 
thousands and thousands of pages of documents without once ever 
raising the issue of executive privilege.
    Instead what happened is that the Office of Independent 
Counsel took the position that executive privilege simply 
didn't apply at all to his inquiry because it all arose out of the 
personal conduct of the President, and we litigated that issue, and we 
litigated it on the ground that we weren't seeking to protect 
information about the President's personal conduct, what we were 
seeking to protect was the advice that he was getting and the 
discussions that he was having among senior advisers with respect to 
the conduct of his official business in the most extraordinary high-
tension, hectic era that has ever been my--I won't say pleasure 
experience in this city.
    We had state visits. We had the State of the Union address. 
We had the core business of the President to worry about, and 
we told that to the judge, and guess what? Although you will 
never read it in the referral, the judge agreed with us. She 
said these conversations are presumptively privileged. And she 
instructed the Independent Counsel to make a factual showing, 
which is what happens in executive privilege claims, it is a 
qualified privilege, to demonstrate that their need for this 
information was greater than our interest in confidentiality, 
and only then did the Independent Counsel finally and 
reluctantly acknowledge that indeed executive privilege 
properly was asserted here. They made a showing to the judge, 
ex parte. We don't know what it was. The judge found that it 
overcame our interest in confidentiality, and that was the end 
of the assertion of executive privilege for Ms. Hernreich and 
Mr. Blumenthal, the two nonlawyers involved. That all happened 
by March. There was no delay, no great hurdles to be overcome.
    Most importantly, I think you need to understand what 
really happened. This was not the President throwing out willy-
nilly whatever privilege claims he thought might stand in the 
way of an investigation. This was his lawyers' advice that the 
interests of the Presidency dictated protecting not the facts, 
but the day-to-day advice he was getting about running the 
Presidency and the discussions among his senior advisers.
    Now, if you ever had any question about the extent to which 
the Independent Counsel's referral sought to color, sought to 
paint the blackest picture of this insidious effort to assert a 
privilege recognized by the Constitution and by the Supreme 
Court in as limited a way as was necessary to protect the core 
interests of the President, look to pages 207 and 208 of the 
referral.
    At the bottom of page 207 we find the following: ``The 
tactics employed by the White House have not been confined to 
the judicial process. On March 24, while the President was 
traveling in Africa, he was asked about the assertion of 
executive privilege. He responded, you should ask someone who 
knows. He also responded, I haven't discussed that with the 
lawyers, I don't know. And the referral said this was untrue. 
Unbeknownst to the public, in a declaration filed in District 
Court on March 17, 7 days before the President's public 
expression of ignorance, White House counsel Charles F.C. 
Ruff,'' that's me, ``informed Chief Judge Johnson that he ``had 
discussed'' the matter with the President, who had directed the 
assertion of executive privilege.''
    And not satisfied with noting that in the referral, the 
Independent Counsel, when he appeared before this committee, 
engaged in a colloquy with Congressman Cannon. I hope the 
Congressman will excuse me for making use of his dialogue.
    ``Mr. Cannon, According to the sworn declaration of White 
House counsel Charles Ruff, the President personally directed 
him to assert executive privilege to prevent you from 
questioning some of his assistants. When he was in Africa, 
however, President Clinton denied knowing about the assertion 
of executive privilege. Which is it? Did Mr. Ruff ever amend 
his declaration, or is the President lying to the public on his 
Africa trip?''
    ``Mr. Starr: To my knowledge, Congressman, there was never 
an amendment to the declaration, and the declaration was filed 
on March 17, and then the President's statement in Africa was 
on March 24. So they can't both be right. Either the President 
had discussed with Mr. Ruff the indications of the executive 
privilege, or he had not. Both cannot be true.''
    Well, unhappily, at least I think, for the Independent 
Counsel, both are true, because what really happened was that I 
did, as my declaration says, consult with the President of the 
United States. He did authorize me to assert executive 
privilege. And if you look at--and I will have to take a minute 
to find it--pages 174 and 175 in our submission of yesterday, 
what really happened in March in Africa was not what the 
Independent Counsel said happened. The Independent Counsel 
completely misstated the questions posed to the President, and 
by carefully selecting only a portion of his answer, took his 
response entirely out of context.
    The actual exchange was this. Question by the press: ``Mr. 
President, we haven't yet had the opportunity to ask you about 
your decision to invoke executive privilege. Why shouldn't the 
American people see that as an effort to hide something from 
them?''
    The President: ``Look, that is a question that is being 
asked and answered back home by the people responsible to do 
that. I don't believe I should be discussing that here.''
    Question: ``Could you at least tell us why you think the 
First Lady may be covered by that privilege, why her 
conversation might fall under that?''
    Answer, and this is where the quote comes from: ``I haven't 
discussed it with the lawyers. I don't know. You should ask 
someone who does.''
    By the way, the First Lady was found by Judge Johnson to be 
covered by the executive privilege, but it would have been 
nice, whatever argument the referral wanted to make, to at 
least put the full statement in the record so you could assess 
and not simply rely on the Independent Counsel's assessment of 
what happened.
    Some commentators, and indeed some Members of Congress, 
have suggested that the work of this committee, and indeed the 
work of the House, should be treated as nothing more than some 
preliminary proceeding designed to package a bundle of evidence 
and send it over to the Senate. Some have likened the 
committee's work to that of a grand jury whose only task is to 
determine whether there is probable cause to believe that the 
President has committed an impeachable offense.
    Members of the committee, nothing could be further from the 
constitutional truth. With all respect, nothing could be a 
greater abdication of your responsibility. This is not routine 
business. This is not a charging device pushing hundreds of 
thousands of cases out into the criminal justice system. Only 
twice before has this committee ever voted out articles of 
impeachment against a president. Such a vote is not intended to 
say, well, we think there may be some reason to believe that 
William Clinton has done something wrong, but we will let the 
Senate sort out things at trial. This vote is intended to speak 
the constitutional will of the people--to say we believe that 
on the evidence before us the President of the United States 
should be removed from office. No member of this committee and 
no Member of the House can take shelter behind the notion that 
an article of impeachment is the equivalent of nothing more 
than a criminal complaint or an indictment or some formalistic 
slap on the wrist. Each Member, and I need not tell you this, 
must weigh the weightiest burden that our Constitution 
contemplates, the burden of making an individual determination 
that the President has committed such grave offenses against 
our polity that he is no longer fit to serve, that the will of 
the people should be overturned.
    If there is any analogy to the grand jury, it is this, and 
you heard it from some of my former colleagues in the 
prosecution business, and you heard it from others: For any 
professional prosecutor, the true test, and it is certainly 
true for serious cases, and one can conceive of no case more 
serious than this, is whether there is sufficient evidence on 
the basis of which a prosecutor could convince a jury beyond a 
reasonable doubt that an offense had been committed. This is 
not, as Congressman Canady suggested earlier today, a matter of 
counting noses in the Senate. It is not a question of whether a 
majority vote in the House somehow gives permission to put this 
responsibility in the hands of the Senate. They only require a 
majority vote in the grand jury, and we require a unanimous 
vote in a criminal case at trial.
    This is a matter of testing the charges that you are going 
to consider and asking yourself not would I win if I really 
litigated this in the Senate, but rather do I have enough 
evidence to justify putting the country through the horror that 
we all know will follow if, in fact, there is an impeachment.
    In closing, I urge you to ask, as Senator Fessenden asked 
130 years ago, is the evidence before you of such character to 
commend itself at once to the minds of all right-thinking--
forgive me--men as beyond all question an adequate cause for 
impeachment. And finally ask, what is best for our Nation?
    Thank you, Mr. Chairman.
    Chairman Hyde. Thank you very much, Mr. Ruff.
    [Information not available at time of printing].
    Chairman Hyde. Would you like a break?
    Mr. Ruff. I am ready when you are, Mr. Chairman. Let me say 
as we venture into the questioning period, there may come a 
moment when I actually turn to one of my colleagues behind me 
for a little assistance as we get into the specifics.
    Chairman Hyde. If you want to take a break----
    Mr. Ruff. No, I meant as we go on, it may be necessary for 
me to turn for a little guidance on the facts. I will do it in 
such a way that it doesn't disrupt the process.
    Chairman Hyde. It would be a terrible waste not to avail 
yourself of their talents, so I understand.
    Mr. Ruff. Indeed.
    Chairman Hyde. We are going to operate under a strict 5-
minute rule.
    Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much, Mr. Ruff, and thank 
you for a very eloquent statement. I will not get into the 
business that there were no fact witnesses provided here, 
because you are obviously the President's clean-up hitter, but 
I do think that we have got to cut through the academic 
discourse and the legal hair-splitting that has gone on in 
order to make an essential determination on whether the 
President has committed an impeachable offense, and let me say 
for my own part that I believe that at least perjury before a 
grand jury is an impeachable offense, whether the perjury has 
been committed by the President or whether it has been 
committed by a Federal judge. I think that issue was decided 9 
years ago in the Walter Nixon impeachment.
    So getting to whether or not the President did make a false 
statement before the grand jury, let me ask you a few 
questions. First, Mr. Ruff, did the President mislead the 
American people when he denied having sexual relations with 
Monica Lewinsky?
    Mr. Ruff. He has admitted doing so, Mr. Congressman.
    Mr. Sensenbrenner. Did he lie then?
    Mr. Ruff. Mr. Congressman, there is no secret here. When he 
stood in the Roosevelt Room and said, I never had sexual 
relations with Ms. Lewinsky, he knew that the vast majority of 
the people who were listening to him out there would probably 
understand that to mean that he had no improper relationship 
with her of any kind, and he knew when he said that, holding 
within him, as he did, his understanding that sexual relations 
means sexual intercourse, that he was misleading the people who 
were listening to him.
    Mr. Sensenbrenner. Mr. Ruff, was the President evasive and 
misleading in his answers in the civil deposition and before 
the grand jury?
    Mr. Ruff. I have so stated, and so has he.
    Mr. Sensenbrenner. Did he lie?
    Mr. Ruff. The President engaged in an exercise the hallmark 
of which was a desire to be as little help to these people on 
the other side of the Jones case as he possibly could.
    I think my colleagues' description of his testimony as 
evasive, misleading and maddening is probably as good as you 
can get.
    Mr. Sensenbrenner. But did he lie?
    Mr. Ruff. And I am 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 
that conclusion, could determine that he crossed over that 
line, and what for him was truthful but misleading or 
nonresponsive and misleading or evasive was, in fact, false. 
But in his mind, and that's the heart and soul of perjury, he 
thought and he believed that what he was doing was being 
evasive but truthful.
    Mr. 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 we would give to 
the President when he went into the grand jury in August, was 
to tell the truth, the whole truth and nothing but the truth.
    Mr. Ruff. Indeed.
    Mr. Sensenbrenner. Did he tell the truth, the wholetruth 
and nothing but the truth when he was before the grand jury?
    Mr. Ruff. He surely did.
    Mr. Sensenbrenner. Then how come following the grand 
jury's--the grand jury appearances, we heard all kinds of 
allegations of legal hair-splitting, and debating the meaning 
of various types of words, and claims that some of the 
questions were ambiguous? My list includes words such as is, 
alone, sex, and sexual relations.
    Do you have any more?
    Mr. Ruff. Well, I will take your list for starters, but I 
am not sure how that addresses the question that you put to me, 
which is did he tell the truth. He made it very clear to the 
grand jury that he engaged in inappropriate intimate 
relationships. There is no one who listened----
    Mr. Sensenbrenner. Mr. Ruff, you are saying that some of 
the questions were ambiguous, and the President really did not 
understand what those questions were. Now, who do we blame for 
the fact that the President didn't understand and we have had 
all of these redefinitions and legal hair-splitting? Is it the 
President, or is it his lawyers?
    Mr. Ruff. I don't think that you will find any suggestion 
that the President didn't understand the questions put to him. 
What you will find is an effort by him to explain not how he 
was responding to the questions in the grand jury, but how he 
responded to the questions in the deposition, and that's where 
the issues are debated over what the meaning----
    Mr. Sensenbrenner. But whose responsibility is that? Is it 
the President's responsibility or his lawyers' when he is 
talking about all of the legal hair-splitting?
    Mr. Ruff. When the President is answering questions in the 
grand jury under oath, it is his responsibility to answer 
truthfully. He did so.
    Mr. Sensenbrenner. Thank you.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you.
    I appreciate your coming forward and taking this lengthy 
amount of time, and I am very moved by what you have had to 
say. The question that I think most people are asking 
themselves is whether in this 445-page narrative, even assuming 
that for the benefit of this question that everything in it is 
true, are there any acts? Is there any conduct, are there any 
things in the narrative that would rise to the level of an 
impeachable offense?
    Mr. Ruff. As I have stated, Mr. Conyers, it is our very 
clear conviction the answer to that question is no.
    Mr. Conyers. Thank you.
    You've pointed out one glaring example of Mr. Starr's 
omissions. We have noted that a fair amount of exculpatory 
evidence was excluded as we've gone through our exercise here, 
but the one concerning the President's response to a question 
about executive privilege, is that the only example of an 
important omission that has come to your attention by the 
Independent Counsel?
    Mr. Ruff. As one might gather from not only my testimony 
today, but submissions that we made both yesterday and earlier, 
we find many--I referred to a few today in terms of leaving out 
exculpatory information about the gifts and the job search, and 
those are, I think, but examples of areas, and I raise them, 
Mr. Conyers, in the setting not because of some collateral 
attack on the Independent Counsel, but rather to ask the 
committee to look with care at the record before them.
    Mr. Conyers. Have you, Mr. Ruff, any insight as to why the 
President's grand jury testimony was videotaped by the 
Independent Counsel?
    Mr. Ruff. Well, I was not engaged in the discussions over 
that. I am advised by my colleague, Mr. Kendall, that this was 
something on which the Independent Counsel insisted nominally 
because there might be a missing grand juror. I don't candidly 
know if that was, in fact, the case on August 17 or not. But 
one might surmise that there was some collateral interest in 
fleshing out the package to be sent to this Congress.
    Mr. Conyers. Thank you.
    What about the struggle that is now going on within the 
Congress and even outside of it to find some intermediate 
position to which we may all find an exit, to which we might 
with whatever integrity remains get to a conclusion to this 
matter? Is there any way that this kind of a resolution might 
resonate favorably in the White House?
    Mr. Ruff. I think what I can say, Congressman Conyers, is 
what we have said before. We are looking for an end to this 
process. We think that it does not advance the public weal to 
drag it out further. We are open to any reasonable suggestion 
from any side as a way of finding an end to this.
    Mr. Conyers. I appreciate that. If you believed, Counsel, 
that the President had abused the powers of his office, would 
you still be serving as the White House counsel?
    Mr. Ruff. I think we all have as our core professional 
responsibility an unwillingness to serve where we believe our 
legal skills are being abused, and I surely would not serve 
where I thought that was the case.
    Mr. Conyers. Thank you very much, Mr. Ruff.
    Chairman Hyde. I thank the gentleman.
    The gentleman from Florida, Mr. McCollum.
    Mr. McCollum. Mr. Ruff, in your opening comments you 
suggested that the matters before us, no matter what we might 
conclude are the facts, do not rise to the level of impeachable 
offenses because nothing the President did amounts to 
subverting the system of government?
    Mr. Ruff. Yes.
    Mr. McCollum. And you also suggested that these were purely 
personal matters that were involved in this case.
    Mr. Ruff. I think not the latter. They arose out of 
personal conduct.
    Mr. McCollum. Very well. Whatever your characterization.
    I would submit to you that the President of the United 
States committing perjury, if we believe he did, obstructing 
justice in a court system, and lying to the grand jury are 
things which subvert the justice system of this Nation. If we 
believe that, you may not, but if we come to that conclusion, 
that certainly subverts the American Government system because 
the justice system is integral to that government system. So I 
would suggest that they do rise, as was said by Professor 
Dershowitz, to--lying and committing perjury before the grand 
jury--to impeachable offenses, if we conclude that, for which 
the President should be impeached.
    Mr. Ruff. May I respond?
    Mr. McCollum. That is a comment. I have a question or two.
    You have every right to characterize, just as Mr. Starr 
has, and you also highlight. There were a number of pages that 
you submitted, 180 or something like that. At any rate, I find 
that those things that you highlighted which were your 
strongest points, and I respect that, but there are things that 
you didn't highlight that you glossed over more. You only gave 
us about two and a half pages on the perjury before the grand 
jury in your written testimony, although you mention it today. 
You gave us 20 pages on the gift question, and you gave us no 
comments, although a few pages, on Betty Currie in her specific 
questions whether the President may have tampered with her as a 
witness.
    Now, with regard to the perjury question before the grand 
jury, the central issue is whether the President committed that 
perjury or not, whether he lied or he didn't lie. And the issue 
there, as I discussed this morning, as you may or may not have 
observed in my questioning, boils down to whether or not you 
believe Monica Lewinsky. The President said one thing, and she 
said another. The President said, I did not have sexual 
relations based on the definition that the court had given me 
in the Jones case. Monica Lewinsky described at least two 
things on several occasions that the President did with her 
that would meet that definition.
    She is corroborated by having talked to seven different 
family members and friends on seven different occasions at 
contemporaneous times to engaging in with these relations with 
the President, having told them precisely what she later told 
the grand jury, which was consistent with that. To me that is 
corroboration. That is something that you don't want to 
highlight. Mr. Starr highlighted it a little bit, and I do want 
to highlight it because I think that is factually very 
important.
    And the other matter goes to perjury as well as Betty 
Currie. When the President testified under oath in his civil 
deposition that he could not recall being alone with Monica 
Lewinsky, was he telling the truth?
    Mr. Ruff. First of all, Congressman, that is not an 
accurate statement of what he said. He was originally asked, 
were you ever alone in the Oval Office with Ms. Lewinsky, and 
he responded, not completely but accurately, that he recalled 
being alone with her during the government shutdown when she 
brought letters to him.
    Now, it is frequently bruited about that he made some 
broad-ranging and closed-in representation that he was never 
alone with Monica Lewinsky.
    Mr. McCollum. He was asked later very clearly, as my 
recollection of the evidence, was he alone, and my reading was 
that he said that he wasn't alone, and any fair reading of it 
would say that--you are parsing--which is in your own reports 
that you gave to us today, your own analysis, would say that 
alone doesn't mean the same thing to me as it does to the 
average person.
    If the President thought that he was having relations with 
her when nobody else was around in a room, that is alone, not 
simply being in the White House when somebody else was there.
    With regard to Betty Currie, there were a number of times 
when he went back to her and asked her, suggested things like 
to her the next day after this deposition was given. He asked 
her, you know, do you agree, 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?
    The fact is he knew she was going to be a witness in all 
probability even though she wasn't on the witness list, and he 
wanted to know that. That strikes me as very apparent because 
he had raised her name a number of times in that deposition.
    Chairman Hyde. The gentleman's time has expired. Does Mr. 
Ruff wish to answer?
    Mr. Ruff. Just quickly.
    Betty Currie was not a witness. She was not on the witness 
list. The discovery process was closing down in Jones. Betty 
Currie had been known to the Jones lawyers for months. They 
could have put her on the list if they wanted to, and they 
didn't.
    Chairman Hyde. The gentleman from Massachusetts.
    Mr. Frank. Thank you, Mr. Chairman, and for the very 
evenhanded and appropriate way that you have been presiding 
over this particular tricky question-and-answer series.
    First on hair-splitting, I think we are in a hair-splitting 
tie, because what some of my colleagues on the other side have 
said is the actual nature of the acts which the President 
committed is irrelevant. That is whether or not you lied about 
interfering with a State court prosecution of your partner's 
son for drugs, Judge Nixon--Judge Nixon was accused of lying 
about whether or not he tried to fix a case in State court 
using the prestige of his Federal judgeship, whether he was 
trying to fix a case for his partner's son. That is the same as 
lying about a consensual sexual affair.
    Morally and factually most of us would think those are 
different, but we are told but technically, if they are both 
perjury, they are identical. That is, the notion that 
conformity to technical legal standards trumps all other 
questions comes from the accusers of the President, and it 
certainly is in a situation legal and reasonable for the 
President to say, you have basically said that a consensual 
sexual act which you have said in and of itself would not have 
caused all of this becomes a constitutional crisis if it 
conforms to these legal standards, and he is obviously 
therefore entitled to say it doesn't.
    You can't have a one-sided objection to the invocation of 
legal standards because the gravamen of the charge against the 
President is not that he did something terrible, not as in the 
Watergate case that there were substantive violations of 
people's rights, but that he told untruths or he didn't tell 
the whole truth. He was supposed to tell the truth, the whole 
truth and nothing but the truth, and he only got two out of 
three, that that makes it technically perjury, and therefore we 
go off the substance and into the technical legal situation, 
and that then requires a technical legal rebuttal.
    Even on those terms it seems to me with regard to the grand 
jury there is no showing that perjury--that the President 
committed perjury.
    I must say, Mr. Ruff, I do not find the rebuttal on it was 
alone persuasive. I think the President simply wasn't being 
truthful. I think he waffled past the point of the lying on 
that. But given the circumstances of a civil deposition where 
the issue of consensual sex was, in my judgment, completely 
irrelevant to the underlying case, that there is a materiality 
question.
    And I note that my colleagues have stressed grand jury 
perjury. That is the one that they are talking about. We now, 
as you note in your point here, Mr. Schippers, droppedtwo of 
the three counts in his presentation of grand jury perjury. He skipped 
the one about May and November, and he skipped the one about what the 
President thought in August about what he said in January that is so 
complicated that I can't say it right.
    The only question is one that Mr. McCollum referred to. It 
is an unpleasant subject to talk about, but the fact is that 
the accusation, am I correct, is that while the President 
acknowledged before the grand jury that there had been 
inappropriate intimate conduct, and Mr. Starr himself notes 
that was an admission of sexual contact, Mr. Starr on page 147 
of the referral notes that the President admitted to sexual 
contact, so the grand jury perjury issue is that while the 
President admitted that there had been inappropriate intimate, 
i.e., sexual, contact between him and Ms. Lewinsky, she had 
performed sexual contact on him, and he did not reciprocate. Is 
it, in fact, the case that is the substance of the grand jury 
perjury? That is the factual issue that we are talking about?
    Mr. Ruff. That is correct, Congressman.
    Mr. Frank. How would you prove that? Corroboration might be 
that Ms. Lewinsky told somebody. Is there any--as a lawyer, how 
do you prove when two people are being alone? If he lied about 
being alone--I think he didn't lie about being alone, but if 
you lied about being alone, that means that they were alone, 
and if they were alone, how do we prove perjury, because it 
really comes out who touched what. Now, we are thinking about 
the President of the United States who admitted that he had 
inappropriate sexual contact, but he kind of shortchanged us on 
the details in a perjurious way, and that is the question. How 
would you prove one side or the other if you had to?
    Mr. Ruff. Well, I think my colleagues on the earlier panel 
made it very clear that, first of all, you would never bring a 
case in which you had two people, one of whom was saying X and 
one of whom was saying not X. But even if you did, the notion 
suggested by Congressman McCollum that someone whom you would 
rely on as witnesses, people that Ms. Lewinsky told the same 
story that she is now telling the grand jury, whatever 
motivation that there might have been to tell that story, plus 
noting some of the people that she talked to she didn't tell 
the same story, is I think a nightmare for any prosecutor. And 
indeed, Congressman, to take it out of that context would be a 
nightmare for this country if we tried to try that lawsuit in 
the Senate of the United States.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Pennsylvania, Mr. Gekas.
    Mr. Gekas. I thank the Chairman.
    Mr. Ruff, from the first moment that I reviewed the 
referral from the Independent Counsel, I developed reservations 
about the executive privilege portion of his litany of abuse of 
power, and since then I have further examined that, and 
counseled with my colleagues, and have reached conclusions that 
may at some point coincide with your affirmance as to that. But 
on other portions of the referral I have some grave questions.
    As Mr. McCollum brought out from you in the opening remarks 
that you made in setting this scene, you stated, or implied at 
least, that no offense that didn't amount to subverting the 
government or resulting in the inability to lead the Nation, 
anything short of that, no matter what the offense is, would 
not be an impeachable offense; is that a fair description?
    Mr. Ruff. That is fair, and I truly believe that, and let 
me----
    Mr. Gekas. No, we agree on that. I need some more time.
    Mr. Ruff. I will circle back at the end, but go ahead.
    Mr. Gekas. The thing that bothers me about that is you also 
said in defense of the President he didn't commit bribery--as 
stated in the Constitution, he didn't accept a bribe or give a 
bribe, I think you gave that as a little example--and therefore 
he didn't come within the meaning and the actual literal 
wording of the Constitution. That means to me that if bribery 
is committed, whether or not it subverts the government, 
whether or not it deprives him of the ability to lead the 
Nation, whether or not it is an attack on our system of 
government, because a bribe can take 20 minutes and then he can 
lead the Nation for the rest of the term, that means to me that 
the inclusion of bribery does not require--does not require the 
subversion of government or an attack on government, but is so 
heinous that it is treated by the founders as by itself enough 
to impeach the President. That is what it means to me.
    Mr. Ruff. May I respond?
    Mr. Gekas. Hold on.
    Following that logic, if I come to the conclusion, or 
others do, that perjury is a high crime or a high misdemeanor, 
or middle or low or some kind of misdemeanor, something to fit 
into that structure, and it is not accompanied by subversion of 
the government, or subversion of the system, or rendering him 
unable to lead the Nation, that even so I would be justified, 
if I feel that perjury is such an attack on the government or 
such a heinous offense and has the result of destroying the 
case of an American citizen who lawfully brought a lawsuit in 
Arkansas, if I feel that strongly, you cannot, can you, tell me 
that I have no basis for doing that simply because it might not 
render him unable to lead the Nation or that it subverts the 
Constitution?
    Mr. Ruff. May I respond now, Congressman?
    Mr. Gekas. Yes, I think so. I'm exhausted.
    Mr. Ruff. I have the advantage on you. I wasn't here this 
morning.
    Two points to make. With all due respect, Congressman, I 
think your analysis is wrong.
    Mr. Gekas. I knew you would say that.
    Mr. Ruff. I do think your analysis on the first point is 
right.
    Mr. Gekas. Yes, of course.
    Mr. Ruff. What the Founding Fathers determined is that 
where a President is guilty of treason or bribery, you don't 
need to ask any other questions. Those two offenses do go so 
much to the fabric of our government that they are 
presumptively subversive of his ability to govern. But where it 
is a question of what fits into high crimes and misdemeanors, 
you must apply the same test.
    Mr. Gekas. I must interrupt you. I have to say that to me 
bribery, as in the Constitution, is less destructive of the 
structure of government than is perjury committed by the 
President of the United States.
    Mr. Ruff. With all due respect, Congressman, and I do 
appreciate your candor and the strength that you hold that 
view, the Founding Fathers made a different judgment.
    Chairman Hyde. The time has expired.
    Mr. Schumer.
    Mr. Schumer. Thank you.
    I want to thank you, Mr. Ruff. I think your testimony was 
outstanding. I think the gentleman from Wisconsin said you were 
the clean-up hitter for the administration. Well, I think you 
have hit it out of the park.
    Mr. Ruff. Thank you.
    Mr. Schumer. I have seen this in three levels. The first 
level, even if you agree with all of Mr. Starr's factual 
allegations, there would be--you would say the President did a 
lot of wrong things. It doesn't reach the high bar of high 
crimes and misdemeanors, and that we talked about yesterday.
    And then this morning we talked about the two other--the 
nonperjury parts of the OIC's brief, and I think again you have 
destroyed those quite well. The obstruction--the abuse of power 
charge is just even not brought up in Mr. Schipper's points. 
The obstruction of justice really relies simply on somebody's 
surmise, the OIC's surmise, and to impeach a President because 
somebody felt, with no outside evidence, that Monica Lewinsky 
was getting a job because of a desire to influence her 
testimony as opposed to desire not to have the world find out 
about an illicit relationship strikes me as almost Kafkaesque, 
and so I think we knocked that out.
    What you really dwelled on and the questions have dwelled 
on is the third, the last bar to overcome, and that is perjury. 
And I think my colleague from Pennsylvania, and he made the 
same mistake as the colleague of Wisconsin, they are assuming 
that one perjury is, ``the same as another. Arguendo, just for 
the sake of argument, not saying that perjury was done, Mr. 
Nixon was interfering in a State court to get someone out of a 
criminal proceeding, which is the essence of what our system of 
laws is all about, perjury in that case would be different than 
lying about an extramarital affair.
    The reason I would say to my friends on the other side you 
are not getting very far with the American people is they don't 
buy that. Very few fair-minded individuals would buy that. It 
is different. It is totally different, and it goes directly to 
a sense of fairness. Are we trying to be fair and treating 
someone not as a Democratic or a liberal or conservative, but 
just being fair because what we are doing here is an extremely 
serious exercise, or do we have other motivations?
    But I would ask you, Mr. Ruff, given your, in my judgment 
at least, superb testimony, that you have also made the other 
point here which is what the President did is not perjurious. 
Misleading and perjurious are not the same is the basic thrust. 
One is a standard of common usage as you and I would talk to 
each other, or even as an elected official talks to his or her 
constituents, and the other is a legal standard which is much 
harder to reach.
    Could give us a few other types of examples? I thought of 
one, and maybe it has holes, but that the Earth has a blue sky 
except for all of the hundreds and hundreds and thousands of 
miles the sky is blue, but there is one square mile in 
Antarctica where the sky is pink, and you ask a witness is the 
sky blue, and the witness says no. Even though it is logical 
that witness knows that the rest of the sky is blue, and there 
is that one little part that is pink, clearly misleading, but 
it seems to me if you value our system of laws, if you are not 
hair-splitting, that that is not perjurious per se unless you 
can get inside that person's head and know that they never saw 
the pink square of sky or didn't believe that pink square mile 
of sky existed. I don't know if that is a good example.
    Mr. Ruff. It is as good as any.
    As I tried to suggest in my testimony, we didn't just dream 
up perjury protections. They serve a societal purpose, and they 
reflect a judgment about what we do and what we don't do with 
witnesses under oath. We tolerate a lot of bobbing and weaving 
and a lot of evasion and a lot of misleading before we say, you 
perjured yourself and we are going to pursue you criminally.
    Chairman Hyde. The gentleman from North Carolina, Mr. 
Coble.
    Mr. Coble. I thank you, Mr. Chairman. I thank you, Mr. 
Ruff, for being with us.
    I said something yesterday, Mr. Ruff, that I am going to 
repeat today. I am getting tired of folks saying the 
Republicans are unreasonably partisan because they are favoring 
impeachment. I don't think there is any justification of that, 
nor do I think it is justification to say that the Democrats 
are unreasonably partisan because they oppose impeachment. I 
think reasonable men and women can differ, and I hope to carry 
that through the end of this week and maybe into next week.
    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 that contain sworn testimony 
before criminal grand jury, FBI interviews, depositions, and 
other materials, and I don't believe the critical testimony has 
been challenged by the other side.
    The second myth is that Judge Starr omitted from his 
referral important evidence favorable to the President. I am 
not saying that you said this, Mr. Ruff, but others have said 
it.
    Mr. Ruff. I have said it.
    Mr. Coble. Well, you and I may have to disagree agreeably, 
Mr. Ruff, but I believe every shred of evidence upon which the 
White House relies was provided herein by Judge Starr. On the 
one hand, they said, we didn't get anything, and on the other 
hand they use it oftentimes to trash it, but let me put a 
question to you, Mr. Ruff, if I may.
    Does the President still believe that Ms. Lewinsky's 
affidavit denying a sexual relationship is true?
    Mr. Ruff. Congressman, the President believes that when she 
submitted that affidavit, that the word ``sexual relations,'' 
and he has so stated, involved sexual intercourse. And it is on 
that basis of that definition that the representation in the 
affidavit was true. That definition in his mind of sexual 
relations was one that he held in his mind in January and in 
August, and he has so testified.
    Mr. Coble. All right. Sir, let me ask you this. I am 
wondering why the President did not intervene when his attorney 
told Judge Wright that Ms. Lewinsky's affidavit meant 
``absolutely no sex of any kind in any manner, shape or form.'' 
Now, that, Mr. Ruff, it seems to me, and I will qualify that, 
but it seems to me that is right smack dab in the shadow of 
obstruction of justice. Now, steer me away from the rocks and 
shoals if I am heading for the rocks and shoals.
    Mr. Ruff. I would like to steer you away from those 
particular rocks and shoals. Let me put aside your 
legalcharacterization of what that might have been if indeed the 
President understood that his lawyer actively misrepresented the facts 
to the court.
    The President has testified--and having represented several 
hundred witnesses in depositions, I think I have a fair sense 
of where this testimony comes from--that when the colloquy 
started between Mr. Bennett and the other participants there, 
the President was not focusing on what his counsel was saying.
    I understand that Mr. Starr says that is not the case, in 
fact the President either was paying attention or should have 
been paying attention and should have cut off that series of 
representations. I was in the room, and I will tell you that I 
have not--I don't have a recollection of that particular moment 
in time. I have not seen the videotape, but the President has 
testified, and it seems entirely reasonable to me in my 
experience in civil depositions----
    Mr. Coble. Pardon me, but my time is ticking.
    Did not Mr. Bennett, the President's attorney, subsequently 
admit to the court that the affidavit was not true?
    Mr. Ruff. What he advised the court, quite properly under 
the rule of professional conduct in the District of Columbia 
and Arkansas, was that Ms. Lewinsky had testified that the 
affidavit was false.
    Mr. Coble. My red light has illuminated. I will yield back.
    Chairman Hyde. I thank the gentleman.
    The distinguished gentleman from California, Mr. Berman.
    Mr. Berman. Mr. Ruff, did you want to use a minute of this 
time to finish?
    Mr. Ruff. No, I am at your disposal, Congressman.
    Mr. Berman. Thank you.
    Both sides, we do it, they do it analyze this as a judicial 
proceeding with very formal rules and legal relations. You 
critiqued it, I think, appropriately when you argued that we 
should not consider ourselves a grand jury applying those 
standards in this very important process. That is why this 
issue of perjury is a legal conclusion. It is highly technical. 
We heard an excellent panel this morning describe its elements, 
talk about the difficulty of prosecuting it and the kinds of 
cases that would be prosecuted.
    The thing that bothers me most in the context of the 
testimony before the grand jury the one area that both Mr. 
McCollum and Mr. Frank focused in on is the question of what 
was touched. In looking through all of the evidence, it 
basically boils down to a ``he said'' and ``she said'' kind of 
a situation. I am not a judge. I look at this and apply common-
sense rules, and I come to the conclusion in this case, I hate 
to say it, I think the President lied. I take the other version 
of what happened rather than his.
    And I guess the point I want to come back to is, I don't 
care whether that is perjury--I mean, I do care whether it is 
perjury, but for this purpose it isn't my job to try to analyze 
that. I am aware of the difficulties of prosecuting it. I don't 
think anybody should be making those conclusions about it in 
this context, but the question still arises.
    Having said all of that, what does it tell us in terms of 
the constitutional standard we should apply here, and I would 
like you to speak about as you have already, and I think it is 
worth hearing over and over again, your analysis of what one 
who comes to that conclusion should do with regard to the issue 
of whether or not to pass an article of impeachment?
    Mr. Ruff. This really goes back in part to one of my 
earlier discussions in questions and answers. None of us 
condones perjury, if that is what occurred. I happen to believe 
it did not occur. Let me accept for the moment your position 
that it did.
    Mr. Berman. I didn't say it occurred, I said if it 
occurred. I said I think he lied under oath in that particular 
instance.
    Mr. Ruff. If you ask the question does any violation of the 
oath, does any violation of a witness' obligation to testify 
truthfully mean that the President of the United States should 
be removed from office, that, it seems to me, ought to be the 
starting point for this discussion, and it has already been 
suggested by Congressman Frank and Congressman Schumer and 
others that you can't simply, when you are dealing with this 
gravest of constitutional issues, leap from a conclusion that 
we would all agree on, which is lying is not a good thing, to a 
conclusion that we are going to overturn our system of 
government and the mandate of the people, because if you do 
that, you are failing to weigh in the balance what I think the 
Founding Fathers, the framers of the Constitution, had in mind, 
which is, as I said, as bad as this conduct may be, whatever 
the conduct is, does it mean that the President of the United 
States should not and cannot lead the country?
    If you ask that question, people might reasonably disagree 
about where in the spectrum that inability to lead falls, but 
if you don't ask the question, you don't ever start getting 
into the right constitutional debate.
    Mr. Sensenbrenner [presiding]. The gentlemen yields back.
    The gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you.
    Mr. Ruff, you testified today that the President did 
mislead the Nation. Some of my colleagues, and I think 
particularly the last one, said that they felt that the 
President had actually lied under oath.
    Mr. Ruff. I'm sorry, I missed that last----
    Mr. Smith. Some of my colleagues, and I think particularly 
my colleague from California, said that he thought the 
President lied under oath. You have testified that the 
President misled the American people, probably on numerous 
instances. Don't you think that those public statements and 
don't you think the President's actions were designed to thwart 
or impede the investigation of the Independent Counsel?
    Mr. Ruff. I really don't, Congressman, and let me tell you 
why.
    Mr. Smith. That seems incredible that you don't think that 
the President's motive was to do just that.
    Mr. Ruff. The reason that I want to address your question 
is if you ask would everything have been simpler for the 
Independent Counsel if the President had come out on January 21 
and said, yes, everything they say about me is absolutely true, 
yes, that would have indeed eased the path. I guarantee you one 
thing, it would not have brought us here.
    Mr. Smith. I am not just talking about that one instance, 
but the repeated instances of admitted misleading, evasive 
answers, perhaps lying under oath.
    Let me just say to you, if there is 1 percent of the 
American people who don't think that he was trying to--and 
intentionally trying to mislead or impede the investigation, I 
would be surprised, but that is my opinion, and apparently you 
disagree with it.
    Mr. Ruff. I do.
    Mr. Smith. Let me go on to my next point and that is this. 
Yesterday, the White House brief that was delivered to us 
contained this statement which I assume that you are 
responsible for: ``The referral omitted evidence that 
exonerates the President.'' And then, interestingly enough, in 
many, many instances where you say, ``the referral omitted 
evidence that exonerated the President'', then you cite the 
appendix itself as the source for the facts that were omitted. 
By my count, 17 times you referred to the appendix for the 
facts that you said were omitted.
    So my question to you is, don't you consider the appendix 
to be part of the Independent Counsel's referral?
    Mr. Ruff. No. Congressman, I am glad you asked that 
question because I would have responded to Congressman Coble 
when he asked the same question.
    If there is one thing I think we all understand is that 
what the Independent Counsel chose out of this mass of material 
to put in the referral ought to have been as honest, as 
unbiased, as detached an assessment of the facts as he could 
manage.
    And let me say further that when the Independent Counsel 
himself came before this committee, in his own testimony he 
should have, if he had failed to bring to your attention this 
exculpatory information in the thin little document--excuse me, 
Congressman, you----
    Mr. Smith. You have answered my question to my 
satisfaction. Let me just respond to you. Is that not a prime 
example of splitting hairs and parsing of words and playing 
word games to say it should have been in the main body rather 
than in the appendix?
    Mr. Ruff. On the contrary----
    Mr. Smith. As long as it was there and people had access to 
it, I think arguably the facts were evident and available.
    Mr. Ruff. Let me ask you rhetorically, if it was just part 
of the referral, if it was there for all to see and all to 
know, why didn't the Independent Counsel talk about it when he 
testified to you? Why hasn't one word been said of it in all 
the debate?
    Mr. Smith. My time is up, Mr. Ruff. Let the record show 
that you really didn't respond to my question about whether you 
considered the appendix to be part of the referral.
    Let me ask--end on one other point. You have said and many 
others have argued that the actions of the President don't 
warrant overturning the mandate of the American people at the 
last election. But the point, the response to that is that the 
American people didn't know then what they know now. They 
didn't know in the 1996 election. They didn't know in the 1992 
election what they know now or their votes might well have been 
different.
    Mr. Chairman, I yield back. Thank you.
    Chairman Hyde. I thank the gentleman.
    The gentleman from Virginia, Mr. Boucher.
    Mr. Boucher. Thank you very much, Mr. Chairman.
    Mr. Ruff, I want to join with others today who have 
commended you on the quality of your presentation. I think that 
you have made significant strides in attempting to put this 
entire sad matter into a clearer context. I commend you for 
what you have said.
    I would like to take some time this afternoon to explore 
with you the allegation by the Independent Counsel that in 
asserting executive privilege and in asserting attorney-client 
privilege, the President, in the words of the Independent 
Counsel, has abused his office, and the Independent Counsel, 
therefore, suggests that the assertion by the President of 
these two privileges would be a ground for impeachment.
    My first question to you is, do you agree that the 
President, as the caretaker of the executive office, has a 
responsibility to tend and look after the privileges, including 
executive privilege and attorney-client privilege, that attend 
his executive function?
    Mr. Ruff. I do, and I so advised him, Congressman.
    Mr. Boucher. Isn't it also true that when the executive 
privilege was asserted in the U.S. district court that Judge 
Johnson, in passing on that privilege, ruled that presumptively 
the executive privilege did, in fact, cover many of the 
communications involving the President's assistants but that in 
the particular context in which they were raised those 
privileges had to yield to the need for information by the 
Independent Counsel?
    Mr. Ruff. That's correct.
    Mr. Boucher. And isn't it also true that upon that ruling 
the President decided not to appeal that decision by the Judge 
and basically dropped that claim of executive privilege at that 
time?
    Mr. Ruff. As to the nonlawyers, that's correct.
    Mr. Boucher. And then when the attorney-client privilege 
claim was appealed and reached the U.S. Supreme Court, isn't it 
true that two justices of the Supreme Court said that there was 
no clear legal answer to the question the President was raising 
to the claim of attorney-client privilege that he was putting 
forth and that there was, therefore, a clear basis for the 
Supreme Court to pass on that question?
    Mr. Ruff. That's correct.
    Mr. Boucher. And so would you not conclude that there was a 
plausible basis for the assertion by the President of the 
claims of both executive privilege and attorney-client 
privilege, the same claims that now, in the view of the 
Independent Counsel, are being suggested as possible bases for 
impeaching and removing the President from office?
    Mr. Ruff. Without taking the matter too personally, 
Congressman, I would look not only to the opinion of the two 
Supreme Court judges, but I like to believe that my own 
assessment and my own advice to the President set a level of 
plausibility for the claim of privilege that would defeat any 
suggestion of abuse of power.
    Mr. Boucher. Mr. Ruff, I also would like to explore with 
you question of statements made under oath. During the process 
of these hearings, many of our colleagues on the other side of 
the aisle have tried to equate the standards for impeaching a 
president with those applicable to the impeachment of Federal 
judges. I would like to ask you if you believe that that is a 
fair comparison and ask you also what differences you perceive 
in the standards that should be applicable to the impeachment 
of a president on the one hand and the impeachment of Federal 
judges on the other?
    Mr. Ruff. Congressman, I think it is fair to say that there 
is agreement that the pure constitutional test is the same. The 
difference ought to be in the assessment of the House as to 
what the impact on our system of government is if you speak 
about a judge with a lifetime appointment engaging, as Judge 
Nixon did, in the commission of perjury, and the impact on our 
system of government if you think about removing the President, who has 
to stand for reelection at least once and as to whose status the public 
can speak in many different ways.
    The President is the single head of the executive branch of 
government. To remove him from office, it seems to me, cannot 
be compared with the seriousness, however important it is, of 
removing a single judge of 900 or so with a lifetime 
appointment.
    Mr. Boucher. Thank you very much, Mr. Ruff.
    Thank you, Mr. Chairman.
    Chairman Hyde. The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. Thank you, Mr. Chairman.
    Mr. Ruff, thank you for being here. I know this isn't an 
easy duty for you. It certainly has not been a simple duty for 
us either.
    Mr. Ruff. I understand.
    Mr. Gallegly. Yesterday, Mr. Craig appeared before us and 
was asked about the President's candor before the Federal grand 
jury. He said, while the President was evasive, incomplete, 
misleading, even maddening, that he did not believe the 
President had lied under oath.
    With all due respect to Mr. Craig, and I have great respect 
for his legal ability, I think he is a fine lawyer, that might 
sell to a Georgetown law grad but to the average citizen across 
this country, it is a pretty tough sell.
    Mr. Ruff. Can I just comment on one thing, Congressman? I 
won't be long.
    I think Mr. Craig, when he described the President's 
testimony as evasive, misleading, maddening was not talking 
about the grand jury. He was talking about the civil 
deposition.
    Mr. Gallegly. In other words, it was testimony under oath, 
though.
    Mr. Ruff. That is true.
    Mr. Gallegly. Very well.
    In the panel following Mr. Craig's panel, Mr. Wayne Owens, 
former Member of this House, in an unsolicited comment stated 
that the President clearly did lie under oath. Who do you most 
associate your position with, either Mr. Craig or Mr. Owens?
    Mr. Ruff. Well, I suppose I could say that Congressman--
former Congressman Owens' statement to you reflects our efforts 
to put together a panel with no preconceptions about the issues 
before you. But without being flippant about it, and it is too 
important to be flippant about, I associate myself not 
surprisingly with my colleague, Mr. Craig, not just because he 
is my colleague but because, indeed, as I have indicated 
earlier, as misleading and evasive as the President's testimony 
in his deposition was, in my view, it represented, albeit 
perhaps an abortive effort, to stay within some very narrow, 
strange boundaries and yet not to help--to be evasive. There is 
no question about that.
    Mr. Gallegly. Thank you, Mr. Ruff.
    Mr. Ruff, you stated earlier that the President did not 
help Ms. Lewinsky get a job. I think you further stated that 
Vernon Jordan did help Monica Lewinsky to get a job and that he 
helps many people in Washington get a job; is that correct?
    Mr. Ruff. I did not say that the President did not help. I 
said he provided very little assistance.
    Mr. Gallegly. But you have said that Vernon Jordan did help 
Ms. Lewinsky get a job and had helped others get a job.
    Mr. Ruff. Yes.
    Mr. Gallegly. Do you know if it is common practice for Mr. 
Jordan to call the President's secretary and report, ``mission 
accomplished, ``or report, ``business has been taken care of'' 
every time he helps someone get a job?
    Mr. Ruff. I don't know on how many occasions he has helped 
someone get a job who was a friend and acquaintance of Betty 
Currie's. But there is nothing evil in any connotation about 
that telephone call.
    Mr. Gallegly. Thank you, Mr. Ruff.
    Ms. Lewinsky testified that she spoke to the President 
three times about her testimony in the Jones case. All three 
conversations were within a one-month period prior to the 
President's deposition. Vernon Jordan also told the President 
Ms. Lewinsky had been subpoenaed. President Clinton was asked 
at his deposition if anyone told him that Ms. Lewinsky had been 
served with a subpoena. He answered, ``I don't think so.''
    Mr. Sullivan, on a previous panel, stated that this is not 
perjury only if the President genuinely forgot these 
conversations. Do you think it is really reasonable for us to 
believe that the President completely forgot about those three 
conversations with Ms. Lewinsky about her testimony?
    Mr. Ruff. I have to quarrel with your premise, Congressman. 
Because if you read the President's testimony I think you will 
see that he acknowledges knowing that Ms. Lewinsky had been 
subpoenaed. He questions whether it was Mr. Lindsey who first 
told him. The very fact that he frames it in terms of wondering 
who the first person who told him was suggests, it seems to me, 
that he was acknowledging----
    Mr. Gallegly. He just didn't remember whether Mr. Jordan--
--
    Mr. Ruff. I don't think you will find a question put to 
him, I will look at the record with you, if you would like, 
asking whether Mr. Jordan had advised him that Ms. Lewinsky had 
been subpoenaed.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler.
    Mr. Ruff. Mr. Chairman, can I take you up on your earlier 
offer?
    Chairman Hyde. You surely may. A 10-minute recess. The 
committee stands in recess for 10 minutes.
    [Recess.]
    Chairman Hyde. The committee will come to order. Having 
finished with Mr. Nadler--I thought I could get away with that.
    Mr. Nadler. I don't think so.
    Mr. Ruff. I will chat with him later.
    Chairman Hyde. The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you. Nice try, Mr. Chairman.
    Mr. Ruff, I want to join my colleagues in thanking you for 
your presentation, and I hope this lays to rest any further 
declarations that the President and his supporters have avoided 
addressing the factual allegations in the Starr report.
    I am, however, disturbed by the suggestion that the 
President's accusers have no obligation to prove their case 
with direct evidence or that the President must prove his 
innocence. I think you have done an outstanding job of showing 
that the Starr referral is, especially in view of the facts 
that he omitted and the including contradictory statements by some 
witnesses and omitting exculpatory statements by those witnesses, I 
think you have done a good job of demonstrating the referral is 
incomplete and misleading.
    Now, some of the members of this committee and various 
newspaper editorials and other people have denounced the 
President's and the President's defenders' use of legalisms and 
hair-splitting when you and others have pointed out that what 
the President said did not meet the legal definition of perjury 
because his answers were either--his statements were either not 
material because they were literally true even if perhaps 
somewhat misleading.
    I would point out that nearly every member of this 
committee is a lawyer, so their disdain for the law is a bit 
disconcerting. But, more importantly, my question to you is, 
why are these legalisms important? Why not just forget about 
these legalisms and the hair-splitting and just admit to 
perjury or to lying under oath if that is necessary to make 
some editorial writers less hostile or to get a few more votes 
against impeachment? Why not just say, even if it is not really 
perjury or lying under oath, why is enforcing a precise legal 
definition of perjury important for all of our liberties?
    Mr. Ruff. Thank you for the question, Congressman Nadler. 
As I indicated in my opening statement, we didn't just dream up 
the elements of perjury. They didn't spring full grown from the 
forehead of some legislator, judge or lawyer. They come to us 
from a jurisprudence that is very carefully designed to ensure 
that when there is a charge that a human being committed 
perjury, that is, knowingly lied, it can be distinguished from 
testimony that may be actually truthful, evasive, misleading 
but nonetheless the product of human frailty. We don't put 
people in jail for that, and we certainly don't impeach them.
    So I think the legalisms that we are legitimately accused 
of using, we use them, no question about it, because that is 
what we believe best reflects the seriousness and the gravity 
of the offense that the Independent Counsel has charged the 
President with committing. No one is defending the morality of 
the underlying conduct. The President himself has said he was 
evasive and misleading, didn't want to help the Jones lawyers. 
But to get from there to a charge of perjury, even though I 
believe at the end of the day perjury itself in this setting 
would not warrant impeachment, requires a leap through hundreds 
of years of law and protection that has grown up around that 
particular charge.
    Mr. Nadler. So, in other words, when we hear people saying, 
forget about these legalisms, forget about this hair-splitting, 
implying that even if the President didn't commit perjury under 
oath or meet the legal definition of lying under oath, forget 
about that, just say you did and then it will make some people 
happy, happier about voting against impeachment for the 
President, to do that would be--that would be a betrayal of his 
oath, would it not?
    Mr. Ruff. Indeed, indeed.
    Mr. Nadler. Thank you.
    Let me ask you--let me also point out that it is 
interesting for members of this committee to advocate that 
since it is this committee that recommends to the House the 
legal definitions of things like perjury and other elements of 
the criminal code; and if they are too strict, it should be 
this committee that should change them.
    I would also ask that some people have said that the 
President is incapable of fulfilling his duties.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Florida, Mr. Canady.
    Mr. Canady. Thank you, Mr. Chairman.
    Mr. Ruff, I want to thank you for your presentation here 
today. The President chose well when he chose you as his White 
House counsel.
    Let me say also that I agree with some of the arguments 
that you have made both in your presentation here today and in 
the written submission to the committee. I agree with your 
conclusion that this committee should have clear and convincing 
evidence before we proceed with an article or articles of 
impeachment. And I agree with you that this committee should 
not rely on the referral's account of the evidence. I believe 
that we have an independent duty to look at the evidence.
    I would quarrel with your contention that we have decided 
to rely on the referral. I don't think that is accurate. I 
think we all understand that we have to go behind the referral 
to look at the independent evidence that is before us. And your 
presentation has helped point us to the portions of that record 
before us that you believe are relevant to your client's 
defense, and that has been helpful to us.
    But let me say that I am still frustrated by what I 
consider to be legal arguments that don't really meet the test 
of common sense and human experience. And we have heard about 
legalisms and I understand, I am a lawyer, I understand making 
legal arguments and legalisms. But there is a point beyond 
which things just don't make sense. And the contention that has 
been made that when the President testified in his deposition 
that he had no specific recollection of ever being alone with 
Ms. Lewinsky, that that was truthful, I just don't think meets 
the test of common sense and experience.
    I understand that is your contention. But I have to 
respectfully submit, using that as an example, that it just 
does not stand up to analysis. I believe that when the 
President gave those answers he was lying, and I come to that 
conclusion reluctantly, but I think that viewing the evidence 
in context, one can only reach that conclusion.
    And I would say that the talk about legalisms and hair-
splitting, it isn't just coming from this side of the aisle. I 
quote Mr. Daschle, the Senate Democratic leader, who said he 
agreed with the people, this is in September, who have grown 
impatient with hair-splitting over legal technicalities. That 
is the Democratic leader in the Senate.
    Mr. Gephardt himself said that he believed that this matter 
was going to rise or fall not on the fine distinctions of a 
legal argument but on straight talk and the truth. I am 
concerned that we are still not getting straight talk and the 
truth.
    Now, let me also, as a legal matter, refer you to the 
DeZarn case which was decided just a few weeks ago by the 6th 
Circuit. This is a very interesting case dealing with perjury, 
and it has some comments which I think are directly pertinent 
to what we are considering here and which I candidly believe 
directly undermine some of your contentions. In that case, the 
court said----
    Mr. Ruff. Can you give me the name again? I am sorry.
    Mr. Canady. It is the DeZarn case, the United States versus 
DeZarn, decided by the 6th Circuit, opinion filed October 14, 1998.
    Mr. Ruff. Thank you.
    Mr. Canady. There the court said, a perjury inquiry which 
focuses only on the precision of the question, which you seem 
to be doing quite a bit, and ignores what the defendant knew 
about the subject matter of the question at the time it was 
asked misses the very point of perjury. That is, the 
defendant's intent to testify falsely and thereby mislead his 
interrogators. Such a limited inquiry would not only undermine 
the perjury laws, it would undermine the rule of law as a 
whole, as truth seeking is the critical component which allows 
us to determine if the laws are being followed. And it is only 
through the requirement that a witness testify truthfully that 
determination may be made as to whether the laws are being 
followed. Indeed, that is the entire purpose of the sworn oath, 
to impress upon the testifier the need under penalty of 
punishment to testify truthfully.
    I have to candidly submit that when the President was 
asked, ``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,'' and he 
answered, ``yes, that's correct, it is possible that she, while 
working there, brought something to me, and at the time she 
brought it to me, she was the only person there, that is 
possible,'' the President was lying.
    Mr. Ruff. Congressman, may I have just a moment to respond?
    Chairman Hyde. Surely.
    Mr. Ruff. Obviously, I am not familiar with the case, and I 
will make myself familiar with it, and I don't know what 
setting it arose in. I don't think there is any difference of 
opinion, though, on the critical point that you seem to have 
been making. It is not that anybody gets to choose any little 
loophole in a question and slide through it and avoid 
prosecution. You have to look at the question, make a 
reasonable assessment of it, ask in a criminal case whether a 
jury would find it sufficiently precise or not, and then ask 
whether, in fact, the response to the question was such as 
would permit a perjury charge.
    I don't know what the questions were in DeZarn. I would be 
glad to address those with you independently. But I don't think 
there is an underlying concern.
    My position is that any reasonable reading of what happened 
in the Jones deposition would suggest that it, not to use a 
legal term of art, was a mess.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Ruff, were you given a list of the allegations that 
we're actually pursuing? You are aware of the fact that Mr. 
Starr started off with 11 allegations with subparts. Two days 
ago, ABC News said that the Republicans were thinking of adding 
some new ones. Yesterday, Mr. Hutchinson added another 
statement of the grand jury that he thought might be added to 
the list. Mr. Graham this morning added another allegation. The 
scope of the inquiry has gone, has expanded and contracted to 
include the Willey matter and campaign finance committee 
matters and then not finance committee.
    Have you been given a definitive list with specificity of 
the allegations that we are actually pursuing?
    Mr. Ruff. No, I haven't, Congressman. The last list I saw 
was Mr. Schippers list of 15 points. It is an unusual 
experience for me to be making a closing argument without quite 
knowing what I am closing about, but----
    Mr. Scott. Well, you are doing well. So I guess we have to 
guess what the allegations are and, skipping through, I think 
you ignored some of the allegations. 11, Count 11, ``there is 
substantial and credible information that President Clinton's 
actions since January 17, 1998, regarding his relationship with 
Monica Lewinsky have been inconsistent with the President's 
constitutional duty to faithfully execute the laws.'' And he 
concludes, number 17, by saying, ``this represents substantial 
and credible information and may constitute grounds for 
impeachment.''
    I did not hear you comment on part B of that, which cites 
that ``Mrs. Clinton forcefully denied the allegations on 
January 17th, 1998, one day after the President's public 
denial'', and cites her appearance on the Today show. Did you 
ignore that because you can't believe that we would actually 
pursue that particular allegation?
    Mr. Ruff. Well, with limited time, Congressman, I wanted to 
touch on those points that I thought had the most weight. And 
whatever one might think about the allegation that the 
President himself misled the country, the notion that the First 
Lady misled the country and that that would lead to bringing a 
President down, putting him out of office did strike me as not 
worth devoting the small amount of time I had this afternoon.
    Mr. Scott. Do you have a comment on the presumption of 
guilt that has been pronounced that if you don't--whether the 
evidence is there or not, if you don't prove your innocence, 
that in fact you will be presumed guilty? If nobody produces a 
witness, if it is zero to zero at the end, then you will be 
presumed guilty?
    Mr. Ruff. Congressman, I truly do operate on the assumption 
in this body, made up as it is almost of all lawyers, that the 
basic principles are going to be enforced, which is, the burden 
is on those who favor impeachment to show by clear and 
convincing evidence that there are grounds for that. And I----
    Mr. Scott. Can you get to a clear and convincing standard 
with uncross-examined, contradictory statements?
    Mr. Ruff. I can't, as my opening statement reflects, 
conceive that, without some basis for assessing the credibility 
of particular testimony, you could achieve that result.
    Mr. Scott. Okay. So without knowing what the allegations 
are, let us try to get to one of the allegations.
    How do you conclude that Betty Currie--that the allegations 
involving Betty Currie, why she wasn't going to be a witness?
    Mr. Ruff. Well, I think you need to understand that as you 
came to the President's deposition in the Jones case on January 
17th you were essentially at the end of the pretrial process or 
almost at the end of pretrial process in that case. Ms. Currie, 
whose name was certainly not a secret to the Jones lawyers, 
given the amount of information they clearly had about these 
matters, had never put her on the list. She was very close to 
the President. That was no secret. They never subpoenaed her.
    Let me just make--give you a small anecdote. The President 
sometimes has a way about him. And I was the victim of one of 
those. If you look at the grand jury transcript, you will find 
a moment in which, I forget whichquestion he was asked, and he 
sort of looks at me across the room and says, I wish Mr. Ruff could 
answer that question. I was taken aback. We smiled at each other and 
went on about the President's testimony. I trust that that didn't make 
me a participant in the Independent Counsel's investigation any more 
than his reference to Betty Currie didn't make her a part of the Jones 
case.
    Chairman Hyde. The gentleman's time has expired.
    The gentleman from South Carolina, Mr. Inglis.
    Mr. Inglis. Thank you, Mr. Chairman.
    Mr. Ruff, if there were a trial involving the President for 
perjury, would anything that you have said here today be a fact 
in such a trial?
    Mr. Ruff. I believe that many of the facts to which I 
referred and which I included in my presentation would be 
essential elements.
    Mr. Inglis. Would anything that you have said be a fact?
    Mr. Ruff. No more than, with all due respect, Congressman, 
anything said by any member of this committee.
    Mr. Inglis. Right. The point is that you have not met the 
standard that Mr. Craig pointed out.
    And, by the way, earlier I was listening intently in the 
committee room to what you were saying. But in the course--as 
Mr. Craig said earlier, in the course of our presentation today 
and tomorrow, we will address the factual and evidentiary 
issues directly. The score is now zero to five. Five groups 
have come before us. No one yet has addressed evidentiary 
matters.
    Mr. Ruff----
    Mr. Ruff. I absolutely disagree with that.
    Mr. Inglis. I understand you do, but you have just agreed 
that there are no facts that you have testified to.
    Mr. Ruff. No, that is not at all what I said.
    Mr. Inglis. Let me ask you this, are there any witnesses 
that you would like to have called but have failed to call?
    Mr. Ruff. Congressman, I think that question, with all due 
respect, betrays to me an inappropriate view of the process. 
This----
    Mr. Inglis. I understand--excuse me, with limited time, I 
understand what you are going to say. You are going to say that 
the burden of proof is not on you, and I think you are correct 
in that.
    The point I am interested in making here is the normal 
White House spin operation is coming unglued under the light of 
accountability here, because here Mr. Craig raised a very high 
bar, and you are not meeting it. You are failing to meet what 
the White House spin put out at the beginning of this 
proceeding. And now that you have failed, you want to sort of 
split hairs again about what it is that you are doing here.
    Let me ask you this--I understand your response. Let me ask 
you something very different. When the President said on 
January 26, 1998, the famous finger-wagging experience, ``I did 
not have sexual relations with that woman, Ms. Lewinsky,'' was 
he lying?
    Mr. Ruff. I responded to that question earlier, I forget 
who put it to me, Congressman, and I will respond again. The 
President has said flat out, no question about it, he intended 
to mislead the American people, and he did mislead them because 
he spoke in that--on that occasion on the assumption in his own 
mind that sexual relations meant sexual intercourse. Just a 
moment, Congressman. And he knew that most of the people 
listening to him out there didn't understand the definition he 
was using and thus would be misled into believing that----
    Mr. Inglis. You see, I think that if you were consistent 
with your argument on page 72 of the 184-page submittal, I 
think your answer here today to the question I just put to you 
should be, no, he did not lie.
    Mr. Ruff. That is what I said. I said he misled 
intentionally.
    Mr. Inglis. So what is the difference been misleading and 
lying?
    Mr. Ruff. Because he believed, rightly so in his own mind, 
that he was telling the truth, that he used the word sexual 
relations to mean sexual intercourse and that he had not had 
sexual intercourse with Monica Lewinsky.
    Mr. Inglis. This is the heart of it then. That is not what 
he was saying. What he said subsequently is he lied when he 
said that with a finger wagging. But, you see, the finger 
wagging is the same as what he said earlier, that he didn't 
have sexual relations.
    Mr. Ruff. I fear that your recollection of the facts and 
the record is incorrect.
    Mr. Inglis. Well, please straighten me. What is wrong here?
    Mr. Ruff. You said the President admitted he lied. He 
didn't.
    Mr. Inglis. Well, leave aside the lying. Your word 
misleading--you like the word misleading better than lying. I 
understand that. For some reason, you like that better. But if 
it is not the truth, I don't think--under consistent theory 
with your submittal here, he was telling the truth when he said 
that he didn't have sexual relations with that woman, Monica 
Lewinsky. But he subsequently admitted to lying when he said 
that. I lied to you, the American people, when I said I did not 
have sexual relations with that woman.
    Mr. Ruff. What he said was that he misled the American 
people, and that is what he did. He did it wrongfully. He has 
apologized for it.
    And whatever your--Congressman, and I--look, I absolutely 
respect your right, however misguided I believe it to be, to 
have your own view of the record, but the fact is the President 
said that he misled the American people and he did it with 
malice of forethought because he wanted to hide this improper 
relationship.
    Chairman Hyde. The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Ruff, I followed Mr. Inglis in asking questions this 
morning, and this is the question that I asked immediately 
after he asked his question this morning, so I am going to open 
it up and ask you the exact same question that I asked 
following him this morning. Is there anything in the referral 
or in any of the information that was submitted by the 
Independent Counsel to this committee that could be admitted in 
that form in a criminal proceeding?
    Mr. Ruff. I suppose I might find a document or two in 
there, but the essential question is, could you simply dump 
that record in the laps of the Senate and say, go ahead and try 
the case? No.
    Mr. Watt. So I can ball that one back up now.
    Mr. Ruff. Well, I would put it in your pocket.
    Mr. Watt. Wait on the next round of questions then.
    I am struck by how my colleagues on the Republican sidekeep 
saying that this is not about sex, yet we have heard 2 hours worth of 
testimony from Mr. Starr and all of your testimony and none of the 
basic underlying charges that we started out with in this investigation 
were even mentioned or hardly mentioned, and so I would like to go 
through a series of questions which you, I think, can answer very 
quickly just yes or no.
    Mr. Ruff. I will do my best.
    Mr. Watt. Is it true that the Independent Counsel back in 
1994 was appointed to investigate matters related to 
Whitewater?
    Mr. Ruff. That is correct.
    Mr. Watt. And have we ever gotten a referral from the 
Independent Counsel on the Whitewater matter?
    Mr. Ruff. No, sir.
    Mr. Watt. And during his appearance before the committee on 
November 19, was that the first time that we were told that we 
would not be getting a referral on any Whitewater matter?
    Mr. Ruff. The first I learned of any of those matters and 
their status was on that date.
    Mr. Watt. And Mr. Starr, after that, investigated the 
alleged misuse of FBI files by the White House personnel; is 
that correct?
    Mr. Ruff. That's correct.
    Mr. Watt. And we found out last month that Mr. Starr--that 
was also a dry hole?
    Mr. Ruff. Yes, sir.
    Mr. Watt. And, next, Mr. Starr investigated firings of 
personnel from the White House travel office; is that right?
    Mr. Ruff. Yes.
    Mr. Watt. And we found out last month that that was a dry 
hole?
    Mr. Ruff. Yes.
    Mr. Watt. Do you recall the talk over the summer that the 
key to this whole case was the so-called talking points that 
were given by Ms. Lewinsky to Ms. Tripp?
    Mr. Ruff. Yes.
    Mr. Watt. Those are no longer an issue. We haven't heard a 
thing about those, have we?
    Mr. Ruff. I think we now learned where they came from, yes.
    Mr. Watt. Would you agree that only part of Mr. Starr's 
five-year investigation that hasn't been a bust is his 
investigation of the President's sex life?
    Mr. Ruff. Well, I am not sure I would buy into your 
description. It is the only one that has reached this House.
    Mr. Watt. It is the only one that is still going on that we 
are still talking about. And we got it over here, and then we 
start talking about investigating campaign finance matters. Do 
you remember that a week or so ago, a couple of weeks ago?
    Mr. Ruff. I do.
    Mr. Watt. And then we dropped that one, didn't we?
    Mr. Ruff. We did.
    Mr. Watt. And then the Republicans decided to expand the 
investigation into Kathleen Willey, you remember that?
    Mr. Ruff. I do.
    Mr. Watt. We dropped that one, too; right?
    Mr. Ruff. I believe so.
    Mr. Watt. And then the Republicans subpoenaed documents 
from Mr. Starr relating to John Huang, you remember that 
happening?
    Mr. Ruff. I read about it.
    Mr. Watt. And we withdrew that subpoena after a little 
while, in a couple of days; right?
    Mr. Ruff. So I understand.
    Mr. Watt. And then there was a point at which the Secret 
Service was going to get information about the President's 
dealings with other Arkansas women. You remember some 
discussion about that?
    Mr. Ruff. Uh-huh.
    Mr. Watt. They dropped that one, too.
    Mr. Ruff. As far as I know.
    Mr. Watt. So we are back to allegations about the 
President's sex life. That is basically what this is about, 
notwithstanding all the protestations to the contrary?
    Mr. Ruff. Yes, sir.
    Mr. Watt. Thank you, Mr. Ruff. I appreciate that.
    I yield back, Mr. Chairman.
    Chairman Hyde. Thank you, Mr. Watt.
    The gentleman from Virginia, Mr. Goodlatte.
    By the way, just parenthetically, a lot of things you just 
dropped ain't dropped. Just thought I would mention that.
    Mr. Watt. It would be nice to know when we are going to get 
them.
    Chairman Hyde. You will know in good time.
    Mr. Watt. I am sure it will be next year in the next 
Congress.
    Chairman Hyde. You got that right.
    Mr. Watt. After the election.
    Chairman Hyde. It is all after the election.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you Mr. Chairman.
    Mr. Ruff, I would like to follow up on a line of questions 
that the gentleman from Florida, Mr. McCollum, pursued with you 
earlier.
    You said to us in your statement that, with regard to the 
grand jury testimony of the President, that two of the 
instances cited by the Independent Counsel you explained with 
what I would call and I think we have been calling today 
legalisms or legal hair-splitting, but on the third one, your 
answer was interesting to me. That was this issue of the nature 
of the relationship between the President and Ms. Lewinsky.
    In that case you said to us, take the evidence in the light 
most favorable to Ms. Lewinsky, take the evidence as Ms. 
Lewinsky said it. Would that rise to being an impeachable 
offense?
    I took that to mean an acknowledgment that if we do take 
the evidence as provided by Ms. Lewinsky, which I think is very 
strong and which is corroborated by her previous statements to 
other people, long before anybody knew anything about the 
significance of this, that she said to friends, the computer 
printout on her computer of an apparently half-written letter 
that makes reference to her description of the relationship, 
all of that corroborating her testimony, I do take it as 
correct.
    And I would like you to explain to me why, if the committee 
does take that testimony as being the accurate testimony, and I 
believe that the vast majority of the American people on the 
issue of whether or not the President had any contact with her 
while this was going on would agree with her statement as well, 
as detailed as it is, why thatdoes not constitute perjury.
    Mr. Ruff. If, in fact, you were to believe Ms. Lewinsky's 
description of those particular events and conclude--in this 
setting by clear and convincing evidence or, since we are 
talking about perjury in a criminal case, beyond a reasonable 
doubt--that she was right and the President was wrong, then you 
could legitimately conclude that there was a basis for 
believing that a jury would find the President guilty of 
perjury.
    But I suggest two things: First, and I think you heard 
exactly this from the panel this morning and I base this partly 
as well on my own prosecutorial experience, I can't conceive of 
a case going forward to a petit jury on that basis. But even 
putting that aside, what you have, in essence, is Ms. 
Lewinsky's saying X and the President saying not X. And the 
corroboration that you look to and that, with all respect, that 
Congressman McCollum looked to, I think is not a legitimate 
basis of support----
    Mr. Goodlatte. Let me respectfully disagree, and let me go 
to another point, because you have and I have very limited time 
here.
    But you have also made the contention that this is simply 
about lying to cover up a personal embarrassment. But isn't it 
true, Mr. Ruff, that moments after the President completed that 
testimony before the grand jury he went before the American 
people and admitted an embarrassment, ``which he acknowledged 
his side of what took place there? Isn't that really the reason 
why he committed what I think is that perjurious statement? Not 
to avoid embarrassment, because he had already embarrassed and 
disgraced himself, but for the purpose of covering up a 
previous lie in the testimony before the civil--the deposition 
in the civil case because of the fact that if he acknowledged 
what Ms. Lewinsky says took place, he would be acknowledging 
that what he said earlier were falsehoods and that he knew they 
were falsehoods in that case.
    So his intent here was not to cover up an embarrassment but 
to avoid prosecution for a crime, that crime being perjury and 
obstruction of justice in the earlier case. And he compounded 
it 7 months later by continuing his perjurious activity by 
lying before the grand jury.
    And I think that you have accurately stated that if we 
believe what Ms. Lewinsky stated, not only in her deposition 
but what she stated to other people over a long period of time, 
before it was ever even known that this was an issue, if we 
believe that, then the President of the United States has 
indeed committed perjury before the grand jury.
    Mr. Sensenbrenner [presiding]. The time of the gentleman 
has expired.
    Mr. Ruff. May I have one moment?
    Mr. Sensenbrenner. Of course you can.
    Mr. Ruff. Thank you.
    Two points. One, the kind of ``corroboration'', that you 
refer to, statements to other people, for the reasons already 
addressed and addressed by Mr. Davis at length this morning, 
simply would not fit into any prosecutor's calculations in 
deciding whether or not perjury had occurred.
    Second, and this was the point I made in my opening 
statement, I believe, I am convinced and I think the weight of 
scholarly evidence would lead to the conclusion that, even if 
you reach that conclusion, that is your conclusion, not mine, 
about whether the President lied or not in that deposition, in 
that grand jury testimony, it still doesn't warrant removing 
him from office.
    Mr. Sensenbrenner. The gentlewoman from California, Ms. 
Lofgren.
    Ms. Lofgren. Mr. Ruff, thank you for being here today and 
for conducting yourself with such intelligence and clarity and 
dignity. I think that you have helped not just all of us but 
the American people to understand what some of these issues 
are.
    I was interested in your earlier exchange with Mr. Gekas 
about the phrase ``Treason, Bribery and other high Crimes and 
Misdemeanors?'' Thinking back to all of the reading that I have 
done in the notes of the Constitution and the Federalist papers 
and the like, it seems to me clear that what the Founding 
Fathers had in mind with treason and bribery was to protect the 
integrity of the chief executive's loyalty towards the United 
States. And all the discussion I can recall in those original 
documents had to do with a fear that a chief executive could be 
the recipient of bribes and, therefore, have his loyalty 
diverted from the new country, the new America. They were also 
very concerned about titles and other emoluments and that their 
newly elected executive might become nobility, which they were 
trying to escape.
    The other high crimes and misdemeanors had to do with the 
other acts that would subvert the Constitution that were not in 
the first two categories, and as we discussed throughout these 
proceedings, there are really two ways to look at that. One is 
in terms of conduct that is so egregious that it prevents the 
discharge of the constitutional duties of the President, and it 
occurs to me that that is not just a matter of an opinion. I'm 
interested in your comment on this.
    In a sense, that is the one area that is really subject to 
the judgment of the American people, whether or not the 
President's duties can be discharged, thinking ahead, if we 
were to have a trial in the Senate on these charges for the 
next six months to a year, wouldn't we have to go and prove up 
how many Mideast peace settlements have been established, how 
many Northern Ireland peace settlements, how is the economy as 
part of that whole system? Wouldn't that be part of the 
evidence that would need to be put on?
    Mr. Ruff. Thank God I've never had the opportunity to try 
an impeachment. There is no--first let me say that your 
analysis of the issue that Congressman Gekas and I were 
discussing was framed much more articulately than I did and I 
think is exactly correct.
    The issue of the President's capacity to govern, whether it 
be Mideast, economy, Ireland, what have you, is what has to 
underlie every Senator's vote and indeed the vote of every 
member in this committee and the House. I'm not sure whether we 
would introduce evidence or whether it would simply be taken as 
a matter of public knowledge as to what the President is doing 
and how he is doing it, and whether overturning the verdict of 
the election is going to damage our country.
    Ms. Lofgren. That's really the question we need to face, 
but I think there are other issues that obviously we are 
dealing with, which is what Professor Van Alstyne, Mr. Starr's 
former law professor, termed minor crimes, petty crimes.
    As I was listening to both Mr. Inglis and Mr. Gallegly ask 
how could something be misleading and not a lie, I was thinking 
about cross-examination and sort of the issue of ``did you 
spend $10 today'' and you answered ``ham sandwiches cost four 
bucks.'' It's the obligation of the questioner then to go back 
to the expenditure question. Do you feel that was done in this 
case vis-a-vis the President's testimony? Is that part of the 
problem why this misleading confusion has occurred?
    Mr. Ruff. That's certainly a large part of it, 
Congresswoman Lofgren. I think any amongst the many trial 
lawyers here who go back and look at that deposition will 
realize that for whatever reason, there were--there was never a 
follow-up, and the example you give is a good one. And I might 
just note that at the very beginning of the deposition, Mr. 
Bennett, the President's lawyer, urged Ms. Jones' lawyers to 
ask the most special detailed questions and they declined to do 
so. And I think maybe that set a process in motion that we're 
living with today.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    The gentleman from Indiana, Mr. Buyer.
    Mr. Buyer. I reserve my time.
    Mr. Sensenbrenner. The gentleman from Tennessee, Mr. 
Bryant.
    Mr. Bryant. Thank you, Mr. Chairman.
    Good afternoon, counselor. I just want to make a quick 
comment and ask you two or three questions. We're still having 
a problem in my district with some of your wording, and I say 
``you'' collectively meaning the White House, in terms of 
squaring with the oath to tell the whole truth. Your concept 
that he can give incomplete testimony that seems opposite when 
you talk about giving incomplete testimony and telling the 
entire truth; also, the other part of the oath about nothing 
but the truth with evasion. They just seem opposite, how you 
can evade a question and say nothing but the truth and how you 
can give incomplete answers and say the whole truth. Because we 
understand that both misleading answers and evasive answers are 
all--all tend to thwart the judicial system in its efforts to 
get at the truth.
    Let me ask you a couple of questions, if I could. I want 
you to--you put yourself in the President's mind today, and I 
want you to put yourself--this is a hypothetical--put yourself 
in the President's mind, his thinking process, and, using the 
Jones definition of sexual relations, could he agree that 
Monica Lewinsky had a sexual relationship with the President?
    Mr. Ruff. If I understand your question, it is using the 
Jones deposition definition, the conduct that he engaged in 
with Ms. Lewinsky----
    Mr. Bryant. No, did she have a sexual relationship with 
him, the conduct she engaged in?
    Mr. Ruff. I guess I would have to have the definition in 
front of me in the sense that she was the moving actor in 
whatever----
    Mr. Bryant. You haven't thought about this?
    Mr. Ruff. No, I really have not.
    Mr. Bryant. The reason I asked that is she would have had a 
sexual relationship.
    Mr. Ruff. Please don't hold me or my client to this, but I 
think that is probably correct.
    Mr. Bryant. Under his definition, he would not have had a 
sexual relationship with her?
    Mr. Ruff. That is correct.
    Mr. Bryant. He has brought forth the idea that one party 
can have a sexual relationship with another party, but that 
other party not have a sexual relationship with the first 
party. That's my understanding.
    Mr. Ruff. No, it isn't. It's not as though you and I were 
having this conversation in a vacuum. What he had in front of 
him is, I have to tell you, one of the strangest definitions I 
have ever seen, and in fact it was a one-sided definition and 
not a two-sided.
    Mr. Bryant. You've answered my question. She did and he 
didn't, so. Let me ask you also, you mentioned that the 
President--and you've made something of an apology today. The 
President has had two opportunities to give this committee, the 
House, testimony in these proceedings, the grand jury testimony 
to the Independent Counsel and his answers to the 81 questions. 
And you've indicated that, in your wording, his answers were 
evasive and misleading and even maddening. You left out 
incomplete, which Mr. Craig said yesterday.
    Mr. Ruff. He'll remind me of that.
    Mr. Bryant. But now, with all due respect, that apology 
seems somewhat hollow. In fact, you helped the President over 
the Thanksgiving holidays construct the answers to those 81 
questions, did you not?
    Mr. Ruff. I sure did, yes, indeed.
    Mr. Bryant. And surely in preparation for his deposition, 
Mr. Kendall and probably others and you helped him prepare on 
how to answer those questions?
    Mr. Ruff. No, only Mr. Bennett. I take no responsibility 
for it.
    Mr. Bryant. But your apology that boy, he's just a terrible 
client to work with, he's maddening, you folks are the ones 
helping him do that, and for you to come in today, it rings 
sort of hollow to apologize for that. You're responsible for 
this, too.
    Mr. Ruff. I will take whatever responsibility falls on me, 
but let me make this point because I'm glad you raised the 81 
questions. I know there's been a lot of discussion here and in 
the committee and the press about how somehow those 81 
questions were stiff-arming the committee. I have to tell you I 
disagree with that, not only because of the introduction to 
them in which the President reflects his continuing contrition 
but because--very honestly those questions were framed, for 
example, ``At 1:02 a.m. on February 18, did you have. . .  The 
fact is that neither you nor I expect the President to do 
anything other than to say ``I don't remember specifically, but 
I will tell you that in fact myrecords reflect I did have a 
conversation on that day.''
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentlewoman from Texas, Ms. Jackson-Lee.
    Ms. Jackson-Lee. Thank you very much, Mr. Chairman.
    Let me say to Mr. Ruff that your testimony has been both 
compelling, convincing, and understandable. And I just would 
like to take judicial note of the fact that you had already 
indicated to this committee if you thought that you were being 
asked to do something other than what an officer of the court 
should do, you would not be here or be still in the White 
House, and that's an understanding that you have made on the 
record.
    But I do want to start from your premise, ``Did the 
President do something so wrong deserving of impeachment?'' 
Frankly, I have in my mind here a letter that I wrote to the 
President extending to him my concerns about issues in my 
district, particularly the energy industry with the enormous 
number of mergers and loss of jobs, and frankly have called 
upon his good services for us to begin to look at how to solve 
this portending crisis. I'd much rather be dealing with the 
needs of my constituents, but I'm obligated to be here.
    And frankly we have to do the very best job that we 
possibly can. And so I want to just put in the record, because 
there seems to be again a lack of clarity about perjury, the 
words of Jim Cole, a public integrity lawyer here, and I think 
he says it in a way a layman can understand: ``Perjury, it 
seems, comes down to what the person said, what they understood 
themselves to be saying, and what they understood the question 
to be.''
    And we've gone over and over this. I think we can't be any 
clearer. So let me say this. Let me change the score. Let me 
come into the game and change it. Five for the defense and zero 
for those who don't understand what we've been doing here these 
past two days.
    But I would like to go straight to the question of this 
number 11 in the referral by the OIC, that says there is 
substantial and credible information that President Clinton's 
actions since January 17, 1998, regarding his relationship with 
Monica Lewinsky has been inconsistent with the President's 
constitutional duty to faithfully execute the laws. Included in 
that, subsets B and C, and he says the First Lady--can I say it 
again--``The First Lady, the Cabinet, the President's staff and 
the President's associates relied on and publicly emphasized 
the President's denial.'' I am speechless. The First Lady? 
Constituting abuse.
    Can I ask you a question? Abuse of power requires use of 
power. Did President Clinton in any way ask any of the members 
of his Cabinet to use the powers of their office to help cover 
up his affair with Monica Lewinsky?
    Mr. Ruff. No, Congresswoman. I think the point that's been 
made there in our submission that I think really goes to the 
heart of it is the President had already, and he's admitted it 
and we all have, misled the American people in public 
statements. It's a little difficult to contemplate a setting in 
which persons who listen to him make those public statements go 
out and say ``I believe the President'' and then he finds 
himself accused of misusing his power.
    Ms. Jackson-Lee. So he did not actively engage in meetings 
and conversations to devise strategy for them to go out and 
perform what has now been alleged to be abuse of power by their 
statements?
    Mr. Ruff. Obviously I can't speak to all the discussions he 
had with Cabinet members and others, but the point that the 
referral makes, which is that they listened to the President 
say ``I didn't do it'' and then went out and said ``I believe 
the President,'' struck me when I read it, particularly against 
the backdrop of the events of 1974, as an odd proposition to 
have constituted an abuse of power.
    Ms. Jackson-Lee. Let me go immediately to this other more 
chilling example, and that is the question of executive 
privilege and the use of the Africa statement. I cannot believe 
in the referral that--the distortion of what was actually said. 
Can you just comment on that? The question was about the First 
Lady's being covered by executive privilege, and this is now 
being cited as an answer to the question of executive privilege 
for everyone.
    How did you find this, and did you find this stunning to 
have this left out, the entire transcript of the actual words 
of the President that would have said to us that he did not in 
fact lie by saying ``I know nothing about it, I didn't talk to 
the lawyer.'' Could you just give me that again? It is 
chilling, it is pernicious. I cannot believe it.
    Mr. Ruff. I'm going to surprise everybody by being kind to 
the Independent Counsel. What I believe happened is--forgive 
me, Washington Post, if you're here--they read the ``Washington 
Post'' story for that day, which carried only part of the 
dialogue and had relied on the very limited line they used as 
though the President was referring to executive privilege. So I 
don't attribute evil motive but I do attribute error, and 
that's what I wanted to bring to the attention of the 
committee.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. I thank the Chairman.
    Mr. Ruff, you were asked earlier whether you believed the 
President lied under oath, and you replied that you would like 
to associate yourself with Mr. Craig, another lawyer of the 
President who believes the President did not lie under oath, 
rather than with one of the witnesses the other day, another 
witness presented by your side, Mr. Owens, who believed that 
the President did lie under oath; and that's correct, right?
    Mr. Ruff. Mm-hmm.
    Mr. Chabot. Let me associate myself with Mr. Berman and 
with Mr. Schumer, both Democrats on this committee, who after 
looking at all the evidence in this case have concluded that 
the President did indeed lie under oath. Now, we may disagree 
as to what the consequences of that lie under oath might be but 
nonetheless, we've reached a conclusion that this President did 
lie under oath.
    Let me turn to something else. You also said in your 
statement, and I quote, ``It's clear that many in the majority 
have already reached their conclusion.'' Have you heard 
anything from the minority which leads you to believe that they 
haven't reached a conclusion or reached one quite some time 
ago?
    Mr. Ruff. Congressman, I'm here with no, pretense. to 
represent the President of the United States in this 
proceeding. Obviously I would hope that we have convinced 
members of the minority and members of the majority that we are 
in the right here. My goal as an advocate, which is what I am 
today, is to reach the people whose minds I want to change, and 
that's what I was trying to do today.
    Mr. Chabot. Thank you. Also in your statement, you saidthat 
you were not going to, and I quote, drag us through the salacious muck 
that fills the referral. And I thank you for not doing that, but let's 
not forget that it was the President's own conduct which caused the 
subject matter of this hearing to be what it is.
    Now, if he had lied about bribery, it would have been about 
that. If he had lied about a bank robbery, it would have been 
about that. In this case, he apparently lied under oath about a 
sexual harassment lawsuit, so that's what it's about, whether 
we like it or not.
    Let me ask you this. Why do you think the President called 
Ms. Lewinsky, somebody he obviously knew quite well, ``that 
woman''?
    Mr. Ruff. You know, I don't know, Congressman. I think at 
that moment as he was standing there in the Roosevelt Room 
trying to be as forceful in his denial as he could be, those 
words came out. But I wouldn't begin to try to explain to you 
what caused that to happen.
    Mr. Chabot. He obviously knew her quite a bit better than 
referring to her as ``that woman''.
    Mr. Ruff. Absolutely, and there's no question about it.
    Mr. Chabot. You stated in the preface to your written 
submission that you made to this committee that nothing the 
President has done justifies criminal conduct, correct?
    Mr. Ruff. That's correct.
    Mr. Chabot. In that case, I assume that there's no reason 
for the President to grant himself a pardon before he would 
leave office for any criminal acts that he might have 
committed. Can you assure us that President Clinton will not 
pardon himself or that he will not accept a pardon from any 
presidential successor?
    Mr. Ruff. Absolutely.
    Mr. Chabot. Thank you. Let me conclude by asking you this. 
In this written defense that you submitted to us, you again 
went into this legalese thing, which I really think is a 
mistake that you all do, and you talk about ``alone'' and you 
told this committee that the term ``alone'' is vague unless a 
particular geographic space is identified. I would strongly 
encourage you to drop that line of defense. I think if this 
President and his advocates would come forward and tell the 
truth, if they'd done that a long time ago, I don't think the 
President would be in the jeopardy he is in right now, and I 
would just strongly suggest that he come forward, come clean, 
tell the American people the truth, and let the chips fall 
where they may.
    Mr. Ruff. I appreciate that.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from California, Ms. Waters.
    Ms. Waters. Thank you very much. I too must join my 
colleagues in complimenting you on the job that you've done 
here this afternoon. I think you did a fantastic job of further 
taking apart really the allegations that we've been presented 
with and you just--you were able to build on what was said by 
the witnesses who were--who this morning were discussing 
prosecutorial standards for obstruction of justice and perjury. 
They, too, did a fine job. I don't know what else can be done 
with these issues.
    You've made it clear what the legal definitions of perjury 
are. We've discussed in detail obstruction of justice and 
bribery. The other side of the aisle, my colleagues cannot 
overcome the factual information that's been presented to us. 
As a matter of fact, the more we get into these allegations, 
the flimsier they are. I mean, in essence they're rather 
lightweight.
    They would have some believe that we on this side of the 
aisle are simply some kind of liberals and that we're not 
paying attention and they don't know why this turns out to be a 
rather partisan effort. Well, let me just say this. We have 
members on this side of the aisle that I disagree with all the 
time. This turns out to be a partisan effort simply because the 
allegations are lightweight, they're flimsy, they can't prove 
the point, and the tactics that have been used by Ken Starr are 
tactics that many of us and I in particular have real problems 
with.
    It is central to the civil rights movement of which I'm a 
part of, which my life's history is all about, that we pay 
special attention to the justice system, and we are absolutely 
focused on abusive tactics by prosecutors around this country. 
We are not happy about what happened to Monica Lewinsky. We're 
not happy about what happened to Julia Still. We're not happy 
about what happened to Rob Hill's son in the subpoena that was 
issued at the school. We're not happy about intimidation. So we 
cannot trust an investigation where these kind of tactics have 
been used.
    And I want to just add to this. That we believe that Mr. 
Starr came with a bias. When Mr. Lowell, our attorney, 
questioned him here in this committee and asked him about 
connections of his law firm, about Mr. Richard Porter, about 
his contacts with Paula Jones' lawyer, he answered by saying 
things like ``Well, to my best recollection'' and ``I'm not so 
sure I had those conversations with them,'' and then he said 
``I'm not sure'' so many times until he finally ended up saying 
``Well, you can fault my judgment if you will, but just frankly 
it did not occur to me, as I think it happens to a lot of us in 
life.'' At the same time, we have colleagues from the other 
side of the aisle who claim any representations about the 
President that he did not recall is somehow lying.
    I just want to get away from the flimsy allegations. They 
don't mean anything. I don't want to talk about the abusive 
tactics anymore. But I do want to talk about this bias that Mr. 
Ken Starr comes with.
    Do you have information about contacts with Paula Jones' 
lawyers and/or information about the connection of his law firm 
with that case at all?
    Mr. Ruff. I think what we know has been set out in our 
submission. It emerged during Mr. Kendall's cross-examination 
of Mr. Starr, and it certainly suggests that there were 
contacts and involvement with the Independent Counsel's law 
firm and the Jones' lawyers that in our view should have given 
serious pause to anyone who was undertaking this particular 
prosecutorial task.
    Ms. Waters. Did he tell Attorney General Reno about those 
tactics when he sought to expand his jurisdiction?
    Mr. Ruff. Not to my knowledge, Congresswoman.
    Ms. Waters. Thank you very much.
    Chairman Hyde. The gentlelady's time has expired.
    Mr. Barr of Georgia.
    Mr. Barr. Thank you, Mr. Chairman. Mr. Chairman, let me 
state for the record a couple of important items for those who 
believe perjury may not be a serious offense whether it is 
looked at in the context of a constitutional issue involving 
impeachment or in the context of criminal prosecutions.
    I know that our learned witness is very, very familiarwith 
the Federal sentencing guidelines which provide that perjury is even a 
more serious offense than offering, giving, soliciting, receiving a 
bribe. I know also he's very familiar, as the other attorneys are on 
this panel, that there are enhancements for sentencing under Federal 
criminal procedures for those in a position of trust, which I would 
presume all of us would believe includes the President of the United 
States of America. And I know that the witness is also intimately 
familiar with the U.S. Attorneys' manual that provides, quote, because 
false declarations affect the integrity of the judicial fact-finding 
process, all offenders should be vigorously prosecuted, closed quote.
    So for any who believe that these are not serious offenses 
that we are looking at here, the procedures under the 
Department of Justice for United States Attorneys as well as 
for Federal judges in sentencing those convicted of the 
offenses of obstruction, bribery, or perjury, understand that 
they are indeed very serious.
    With regard, Professor Ruff, to the procedures----
    Mr. Ruff. You're taking me back too many years, 
Congressman.
    Mr. Barr. More than we'd like to think.
    Professor, with regard to some of the provisions of Title 
18, I understand your reticence to go into great depth about 
perjury. I believe that the elements of perjury are here.
    But let's put aside that for a moment and focus on some 
other provisions of Title 18 that I really believe are much 
more problematic for the President, and that is Section 1505, 
obstruction; Section 1512, tampering with witnesses; and of 
course for both of those you have to look at the definitions, 
which I'll come back to in a moment; as well as Section 1623, 
false declarations before a grand jury, which as you know does 
not contain the additional element of willful, just that a 
person makes false declarations knowing that they contain false 
material.
    The problem is that when you look at these provisions of 
Title 18, as you know, one doesn't look at them just in a 
vacuum. One has to look at the definitions, and when one looks 
at the definition for misleading conduct, it means knowingly 
making a false statement. So, for example, if somebody walks 
into a room and makes a statement to somebody that either is or 
reasonably could be presumed to be a witness in an existing 
proceeding, and makes a false statement to them, they have 
engaged in misleading conduct which is--falls within--is the 
definition which applies to tampering with a witness.
    So I think the President has a very serious problem when 
one looks at the statements that he made to Betty Currie the 
day after he gave his deposition in which he referred to her 
many times. So certainly he could presume--we've already 
established this morning that he was not acting as her attorney 
and she was not contemplating hiring him as her attorney, in 
which case it might make sense for him to talk with her about 
certain testimony that she might be giving, so I think one is 
left with the very clear inescapable conclusion that this was 
misleading conduct within the definition applicable to Section 
1512, tampering with witnesses.
    One also I think has to conclude that the President has 
other serious problems with regard to these provisions of Title 
18 with regard to the definition of sexual relations. The 
definition of sexual relations, while you have correctly 
pointed out it does not include a specific reference to oral 
sex, it does include a very, very wide and expansive variety of 
activity that clearly falls within the definition--within the 
activity unrebutted by the President as late as today that 
Monica Lewinsky testified to under oath.
    When you look at the fact that there were false statements, 
when you look even at the fact that even if we presumed they 
were not technically perjurious, I think clearly they fall 
within the ambit of these other provisions of Title 18, and 
notwithstanding that we all agree that you do not need to 
establish a criminal offense to impeach, I think clearly they 
do.
    So I respect your arguments. They are indeed argument, 
eloquent as they are, but I think the President has a very 
serious problem in violating these provisions of Title 18.
    Chairman Hyde. The gentleman's time has expired. The 
gentleman from Massachusetts, Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman.
    Mr. Ruff, in looking over pages 207 and 208 of the referral 
relative to the President's statements while he was in Africa, 
while you may view your comments as defending the Independent 
Counsel, I don't know. Where I come from, if you make a 
submission to any court of law and you're a prosecutor and you 
say to the judge, ``Sorry, we've got that wrong, Your Honor, 
but we relied on the Washington Post'' or any other newspaper, 
that generally would be the basis of admonishment from the 
judge, and I'm being kind. Prosecutorial misconduct 
potentially. But I think with that bit of misinformation, the 
report is consistent with a lot of information that is in this 
report.
    Again, where I come from, a failure to provide exculpatory 
evidence or all of the evidence is the basis upon which in 
Massachusetts, that's what prosecutorial misconduct is all 
about, the failure to provide evidence which tends to show the 
innocence of the target of an investigation.
    But let me go to the record. Mr. Ruff, in arguing that the 
President lied in his civil deposition about whether he had 
talked to Vernon Jordan about Ms. Lewinsky's involvement in the 
Jones case, the referral cites the following exchange:

    Question. Did anyone other than your attorneys ever tell 
you that Monica Lewinsky had been served with a subpoena in 
this case?
    President Clinton. I don't think so.

    Now, that might be a false statement by the President, 
except there's one problem. The referral failed to cite the 
entire exchange on this subject. The entire exchange was as 
follows:

    Question. Did anyone other than your attorneys ever tell 
you that Monica Lewinsky had been served with a subpoena in 
this case?
    President Clinton. I don't think so.
    Question. Did you ever talk with Monica Lewinsky about the 
possibility that she might be asked to testify in this case?
    President Clinton. Bruce Lindsey. I think--Bruce Lindsey 
told me that she was--I think maybe that's the first person who 
told me she was.

    Now, the President's answer, ``Bruce Lindsey,'' clearly is 
an answer to the first question about whether anyone asked the 
other attorneys--any of his attorneys told him that Ms. 
Lewinsky had been served with a subpoena. Indeed, it doesn't 
make any sense as an answer to the second question. The 
referral fails to mention the Bruce Lindsey answer. Fails 
tomention it.
    Mr. Ruff, in light of this omission, is the referral's 
presentation on this subject fair or balanced?
    Mr. Ruff. Both your analysis and your imitations are 
exactly on the mark.
    Mr. Meehan. I don't mean to cut you off, but let me go to 
the obstruction of justice, the gifts. Mr. Ruff, the referral 
chose to accept Monica Lewinsky's claim that Betty Currie 
suggested the idea of picking up the gifts from Ms. Lewinsky's 
apartment rather than Ms. Currie's conflicting claim that Ms. 
Lewinsky initiated the transfer of the gifts. Now, in 
explaining why it believed Ms. Lewinsky's testimony, quote, 
made more sense than Ms. Currie's testimony, the referral noted 
that Ms. Currie drove to Ms. Lewinsky's house to pick up the 
gifts and then claimed, quote, the person making the extra 
effort-in this case, Ms. Currie is ordinarily the person 
requesting the favor, end quote. Now, that's incredible.
    Let me repeat the rationale used by the referral to resolve 
the differences in the testimony between two key witnesses on a 
critical point. Quote, the person making the extra effort is 
ordinarily the person requesting the favor.
    Mr. Ruff, do you think that that sort of speculation, and I 
guess you could call it pseudo-psychology, would ever be a 
legitimate or rational basis to draw this kind of a conclusion?
    Mr. Ruff. I surely do not.
    Mr. Meehan. Mr. Ruff, the referral claims the President 
encouraged Monica Lewinsky to file an affidavit which he 
allegedly knew would be false. This claim is based on the fact 
that during a December 17, 1998, conversation with Ms. Lewinsky 
about her filing an affidavit in the Jones case, the President 
allegedly repeated a cover story that he and Ms. Lewinsky had 
formulated early on in their relationship.
    Now the President testified before the grand jury that he 
did not recall repeating that cover story on that date. So we 
have a case where the President's account conflicts with Ms. 
Lewinsky, and of course the referral believed Ms. Lewinsky.
    But later on when the grand juror asked Ms. Lewinsky on 
August 20, 1998 whether she had any discussions about cover 
stories with the President after she learned she was a witness 
in the Paula Jones case, Ms. Lewinsky responded, ``No, I don't 
believe so. No.'' Not in the referral.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Meehan. Thank you.
    Chairman Hyde. The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Mr. Chairman, I would like to reserve my time.
    Mr. Hyde. The gentleman reserves his time.
    The gentleman from Arkansas, Mr. Hutchinson.
    Mr. Hutchinson. Thank you, Mr. Chairman.
    Mr. Ruff, I want to make sure I characterize this 
appropriately. The President has apologized for his personal 
conduct or misconduct, but he has denied any legal wrongdoing.
    Mr. Ruff. That's correct.
    Mr. Hutchinson. So if there's any violation of the law, it 
is fair to say that he has not accepted responsibility for 
that?
    Mr. Ruff. He's accepted responsibility for his conduct. If 
someone determines--you described it, Congressman. Let me just 
try to be responsive. I want to be as responsive as I can be. 
He has taken responsibility for his conduct. We believe and I 
believe the better answer to the question is it was not 
criminal.
    Mr. Hutchinson. Well, all right. I think that could have 
called for a simple yes or no. I will accept what you said.
    Mr. Ruff. I apologize for that.
    Mr. Hutchinson. Now, in your presentation of the defense, 
and I think you had as much time today as you wanted, and you 
did an excellent job, by the way, Mr. Ruff.
    Mr. Ruff. Thank you.
    Mr. Hutchinson. I was listening. You covered the 
allegations of perjury before the grand jury. You covered the 
abuse of office, and you covered the obstruction of justice 
charges. I did not hear any discussion from you on the 
allegations of perjury from the deposition testimony.
    Mr. Ruff. I did cover it in this fashion. I said, I 
believe, in my opening statement that I think if you look back 
at the colloquies that occurred during that deposition, you'll 
be struck by the President's admitted, evasive, misleading 
answers which I do not believe were lies. But you will also be 
struck by the absolute mess the deposition was in terms of the 
questions that were put.
    Mr. Hutchinson. I did spend some time last night looking 
over the President's response prepared by his lawyers to the 
charges, and if you have that, if you would refer to page 79 
and 80, particularly page 80, I just wanted to ask you some 
questions about the civil deposition. The question deals with 
the charge that the President was not truthful when he was 
asked about his conversations with Monica Lewinsky and 
particularly whether she told him that she had been served with 
a subpoena in this case. And I would underline, ``Did she tell 
you that?'' And the answer was, ``No.''
    The essence of the question is the conversation with Monica 
Lewinsky and whether the President learned from her that she 
had been served with a subpoena in the case.
    Now, earlier, you said once again that the charge of false 
testimony--I'm at the top of the page on the right--is based on 
a wholly inaccurate reading of the President's deposition. The 
President acknowledged that he knew that Ms. Lewinsky had been 
subpoenaed.
    Now, to me, that's not the issue addressed by the question, 
whenever you say the President acknowledged that he knew Ms. 
Lewinsky had been subpoenaed. The question was, did Ms. 
Lewinsky tell you that she had been subpoenaed?
    Mr. Ruff. And if you actually will go back and look at the 
context in which--I'm now looking at page 80. If you look at 
the context in which the Q and the A that are cited here and 
that you referred to occurred, there was a long series of 
questions about when was the last time that you saw Ms. 
Lewinsky, and it was in that setting that this question arose. 
In the broader setting of all the questions that were going 
back and forth with the President on this subject, the point 
we're making is--because this is the point that the Jones 
people were getting at--was did you know that she had been 
subpoenaed and, if so, at what time?
    The critical issue I think you'll find in that 
context,Congressman, was not, was it she who told you? It was, in the 
setting of those meetings and conversations, did you know that she had 
been subpoenaed?
    Mr. Hutchinson. Let me say, because I'm going to run out of 
time, that I would like to develop this factually for a long 
time with you, but it appears from reading your defense, that 
you set up a false charge and then you respond to the false 
charge. You're not responding to the charge of the perjury on 
the question ``Did she tell you that she had been served a 
subpoena in this case?''
    And on the next page, on page 81, there is a lengthy 
question and answer and you're critical of Mr. Starr, but here 
there is not a complete recitation of the Q and A in the 
deposition. There's a lot more that transpires in the 
deposition.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Ruff. Indeed, I grant you that.
    Chairman Hyde. The gentleman's time has expired.
    The distinguished gentleman from Massachusetts, Mr. 
Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman.
    I'll be very brief. Mr. Ruff, would you care to further 
elaborate on your answer to Mr. Hutchinson?
    Mr. Ruff. I think the point I was trying to make, in no 
sense would we ever want to do what we indeed have accused 
Independent Counsel of doing and that is to skew the record 
here. But the point that I think needs to be made in response 
to Congressman Hutchinson's concerns is that the context in 
which this dialogue occurred was a dialogue over at what point 
did the President know that Ms. Lewinsky had been subpoenaed.
    The issue, I think it's fair to say, and my colleagues 
behind me will elbow me if I don't have it right, was when the 
President last talked to Ms. Lewinsky, did he at that time know 
that she was--she'd been subpoenaed. In that setting, what is 
being done here, I think, in the Independent Counsel's analysis 
is to focus in on that one Q and A without grasping the full 
universe of questions and answers that were on that subject.
    Mr. Delahunt. Thank you, Mr. Ruff.
    Let me just say I generally want to extend my appreciation 
because you definitely have provided context and texture to the 
referral from the Office of Independent Counsel. And I hope the 
American people are listening.
    You know, the President and the administration have been 
accused of hair-splitting, semantic gymnastics, and we're 
talking a lot of conversation. Part of the dialogue today has 
been about the definition of sexual relations. And I really 
want to be clear, but it was not the President that suggested a 
definition of sexual relations in terms of the Paula Jones 
deposition. Is that a correct statement?
    Mr. Ruff. That couldn't be more true, Congressman.
    Mr. Delahunt. So it wasn't the President that insisted on a 
definition. In fact, it was counsel for Paula Jones?
    Mr. Ruff. That's correct.
    Mr. Delahunt. Do you remember--I remember seeing, I think 
it was on Fox-TV, Mr. Camarata who, when asked by a reporter or 
journalist, acknowledged that the definition was very confusing 
and convoluted. Do you have any memory of----
    Mr. Ruff. I don't remember seeing that, but I will accept 
the----
    Mr. Delahunt. You will accept that, though. Thank you.
    In fact, my memory of the transcript is that, in a 
conversation with Linda Tripp, Monica Lewinsky herself said 
words to the effect that we're not really having sex unless you 
have sexual intercourse. Is my memory correct on that?
    Mr. Ruff. Your memory is correct.
    Mr. Delahunt. So, again, I'm going to repeat it because I 
think it's important to repeat. It was not the President that 
insisted on that particular convoluted, confusing definition of 
what constitutes sexual relations?
    Mr. Ruff. That's correct.
    Mr. Delahunt. Am I correct when I state that it was the 
judge that ruled that oral sex would not be considered within 
the concept of that definition?
    Mr. Ruff. What she did was to strike those portions of the 
definition that would encompass that form of activity.
    Mr. Delahunt. So it was the court that struck that 
particular aspect of the definition?
    Mr. Ruff. That's correct.
    Mr. Delahunt. Thank you. I yield back.
    Chairman Hyde. The distinguished gentleman from Indiana, 
Mr. Pease.
    Mr. Pease. Thank you, Mr. Chairman.
    Mr. Ruff, I, too, want to thank you for your time and your 
presence and for your demeanor before this committee. You're a 
very effective advocate.
    I would like for you to address what appears to me to be an 
inconsistency between your strong assertion that the committee 
should not consider--when we review perjury, we must look at 
the underlying behavior, but when we look at executive 
privilege, we cannot look at the underlying behavior, in both 
cases it being the personal behavior of the President.
    Mr. Ruff. No. I appreciate the opportunity to clarify that, 
because I don't believe there's any inconsistency at all. Let 
me describe for you what happened in the executive privilege 
setting so that I think that will make it clear.
    Initially, the Independent Counsel took the position that 
no conversation that had anything to do with Monica Lewinsky 
could be covered by executive privilege because it all arose 
out of the President's personal conduct. It was that issue that 
we litigated before Judge Johnson.
    The position we took was not that we were entitled to 
assert executive privilege over matters involving the 
President's personal responsibility, his personal liability, 
whatever it may have been, but that only to the extent that we 
were advising the President in the conduct of his official 
business. For example, what to do with the State of the Union 
address, which as you know came up six days after all of this 
broke, or how to deal with press questions in the setting in 
which he was meeting with Prime Minister Benjamin Netanyahu or 
Chairman Arafat, and his meeting thereafter with Prime Minister 
Blair.
    It was in those official areas of conduct that we were 
saying you may not inquire, and it's that--that's the 
distinction that I think is the difference between those two.
    Mr. Pease. Thank you.
    I don't want to misstate what I think I concluded from your 
presentations about the difference between misleading and 
lying, that you admit in many ways that the President misled 
the public but he did not lie because in his mind he 
technically was telling the truth on whatever the point might 
be at the time. Is that a fair assessment?
    Mr. Ruff. That's fair.
    Mr. Pease. Do I understand that to mean, then, an assertion 
that that there is no objective standard for truth, that it is 
merely the subjective analysis of what one believes to be true 
at a moment in time?
    Mr. Ruff. Absolutely not. The case law--if I were in a 
courtroom now instead of in this hearing room, we would be 
talking about what the case law establishes, and it is case law 
I think that we can all accept which is you have to make an 
assessment: Is the person who tells you that's what's in his 
mind telling you the truth? You make that assessment--of 
whether you believe the person who is telling you that--by 
asking whether there is corroboration for it, whether under the 
circumstances that is, in fact, a plausible, believable 
explanation of what was in his mind. And, most importantly, and 
this is really the crux of it, is what he is telling you was in 
his mind a reasonable interpretation of the facts? That's the 
test.
    Mr. Pease. Fair enough. Thank you very much.
    I yield the balance of my time to Mr. Canady.
    Mr. Canady. Thank you.
    Mr. Chairman, I ask unanimous consent to place in the 
record a letter from Donald Alexander, the former Commissioner 
of the I.R.S., and other materials relating to some of the 
argument that's been made concerning the action of the 1974 
inquiry on the tax fraud article of impeachment against 
President Nixon.
    Mr. Hyde. Without objection, so ordered.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.038
    
    [GRAPHIC] [TIFF OMITTED] T3321.039
    
    [GRAPHIC] [TIFF OMITTED] T3321.040
    
    [GRAPHIC] [TIFF OMITTED] T3321.041
    
    [GRAPHIC] [TIFF OMITTED] T3321.042
    
    [GRAPHIC] [TIFF OMITTED] T3321.043
    
    [GRAPHIC] [TIFF OMITTED] T3321.044
    
    Mr. Canady. Having put that in the record I want to say, 
Mr. Ruff, you quarreled with the Independent Counsel's 
presentation of facts, and I have to quarrel with your 
presentation of the facts relating to the committee's dealing 
with the tax fraud article against President Nixon.
    In your submission to the committee, I believe you really 
misrepresent the facts there. You quote four members who--one 
of whom you quote totally out of context for the proposition 
that the committee decided that tax fraud was not an 
impeachable offense, when the fact of the matter is and the 
record shows that 12 members of the committee, the vast 
majority of those who expressed an opinion on this subject in 
the debate, based their decision on the conclusion that there 
was simply insufficient evidence that tax fraud had been 
proven. And I think that's a significant omission in your 
report.
    Mr. Ruff. Can I just respond briefly, Mr. Chairman?
    Chairman Hyde. Yes.
    Mr. Ruff. If in fact our description of those events is in 
any fashion misleading, I will see to it that it is corrected 
and resubmitted to the committee. And I will go back and look 
at it, and I will respond directly to you.
    But I believe, and I don't--I haven't flipped through it, 
but I believe what you'll find, in essence, is that we 
acknowledge that there were many different opinions as to why 
no tax count ought to be returned.
    Mr. Canady. I suggest you read it.
    Mr. Ruff. But that there were three or four, including 
Congressman Railsback, Congressman Hogan, and I forget who the 
others were, who said specifically I don't think tax evasion 
rises to the level of an impeachment.
    Mr. Canady. That's not what it says.
    Mr. Ruff. I will see to it that it is corrected if it 
doesn't.
    Mr. McCollum. I would like to ask unanimous consent, Mr. 
Chairman.
    Chairman Hyde. The gentleman from Florida is recognized for 
a unanimous consent request.
    Mr. McCollum. I would like to ask unanimous consent to put 
in the record at this point in time the Congressional Research 
Service report to you on the compilation of presidential claims 
of executive privilege from the Kennedy through the Clinton 
administrations.
    Chairman Hyde. Without objection, so ordered.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.045
    
    [GRAPHIC] [TIFF OMITTED] T3321.046
    
    [GRAPHIC] [TIFF OMITTED] T3321.047
    
    Chairman Hyde. Mr. Wexler.
    Mr. Wexler. Mr. Ruff, I think the American people owe you a 
debt of gratitude for today, I hope, finally putting to rest 
the argument that the President's lawyers, that the President's 
side, has not responded to the factual allegations against the 
President by presenting facts. It is undeniable that your 180-
page submission--yours, Mr. Kendall's, Mr. Craig's--is replete 
with dozens and dozens of pages of factual rebuttal to the 
claims against the President; and certainly your talk here 
today enunciates many of those factual rebuttals.
    I would like to talk to the issue of executive privilege, 
because Mr. Starr had some pretty strong condemnations of what 
I guess is your legal work or your legal advice.
    On page 207 of the report, Mr. Starr claims that some of 
the executive privilege claims were patently groundless. Later 
on, on page 207, he refers to other assertions of executive 
privilege as frivolous.
    If we turn to page 208, right after Mr. Starr either 
negligently misrepresented the quote to the President or just 
downright took it out of context, we don't know, he then cites 
the deception of, I guess, your legal advice and how it 
continued.
    On page 209, he then seems to, I guess, get himself into 
your head, because he asserts to this committee that the 
executive privilege was not, and I quote, the executive 
privilege was not the only claim of privilege interposed to 
prevent the grand jury from gathering relevant information.
    Mr. Ruff, please take the remainder of my time. Tell us why 
you recommended to the President to assert executive privilege. 
Tell us, was your advice to assert a frivolous claim a patently 
groundless claim?
    Mr. Ruff. Thank you for the opportunity, Congressman.
    I would like to think that I don't give advice to advance 
frivolous claims in any setting, much less with the President 
of the United States exercising a constitutional privilege.
    The law in the District of Columbia circuit most recently 
embodied in a case called Inre Sealed Case which dealt with 
assertions of executive privilege in the Espy investigation, 
makes it absolutely clear exactly what the rules are and how 
broadly the presidential communication privilege extends and 
what the legitimate boundaries are for that privilege. And it 
was within the rules set down by that case that we advanced our 
claims here.
    Indeed, we advanced them substantially more narrowly than 
we might otherwise have done if we were in a different setting, 
because we certainly realized the importance and the gravity of 
the investigation that was being conducted. Executive privilege 
was advanced, other than for the lawyers for whom it was 
wrapped under the attorney/client privilege, for only two 
individuals who by the middle of March had either had the claim 
withdrawn without a court ruling because we believed there was 
no need for it or the court had ruled against us and we did not 
pursue it.
    So that whatever the Independent Counsel sees as the 
purpose, and I certainly would deny any intention improperly to 
withhold information from the grand jury, there can be no claim 
that it had even a measurable impact on the conduct of his 
investigation.
    Mr. Wexler. Thank you.
    Chairman Hyde. The gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    Mr. Ruff, I'm going to hand you or have handed to you a 
couple of documents. If I could have staff do that. And while 
that's happening, I thought I would ask you a first question.
    Yesterday, I asked Mr. Craig if he thought Judge Wright 
should deal with any wrongdoing by the President in the Jones 
suit, and he said yes. Mr. Ruff, if Judge Wright does take 
action against the President for his conduct in the Jones suit 
and the options run from mere admonishment to jail time, are 
you willing to commit on behalf of the President and the White 
House that he will be subject to Judge Wright's discipline, if 
any, and pledge not to invoke the defense that the President is 
not subject to jurisdiction because impeachment proceedings 
under the Constitution are the only method of disciplining a 
sitting President?
    Mr. Ruff. I will say this, Congressman, and you pose a 
question to me I have not really had time to think about. I'll 
say this, that the President has stated through me, and he was 
very specific this morning, that he, like any other citizen, is 
subject to the law, and that would certainly include, because 
he has already been subjected to this civil proceeding, being 
subjected to the orders of the court, the question of whether 
while he is still in office a court could impose a sanction----
    Mr. Cannon. Let me just shorten it and say that--you may 
argue that during his tenure in office but after he leaves 
office.
    Mr. Ruff. After he leaves the office, just as I said----
    Mr. Cannon. The reason I'm asking, is that it would seem 
terribly inconsistent to use such a defense when the White 
House is now seeking the extra constitutional measure of a 
censure.
    You said earlier that the First Lady was found to be 
covered by the executive privilege. Does that mean that Judge 
Johnson agreed with the assertion that information could be 
withheld or only that in the proper context the President could 
assert privilege as to the First Lady's discussion?
    Mr. Ruff. The latter.
    Mr. Cannon. Because, in fact, the document or the 
information that was being sought was given to----
    Mr. Ruff. That's true of all claims of executive privilege 
in this matter. The judge ruled that the showing finally made 
by the Independent Counsel overcame our interest in 
confidentiality.
    Mr. Cannon. Certainly I had wanted to see how you were 
coming across on television when you invoked my name earlier. I 
was in the room watching out there. I was riveted by your 
description. Let me just say that you are coming across quite 
well, and I think that the way the information is coming 
forward I think will be helpful to people like Mr. Berman who 
has made up his mind that he disagrees with you. But that's not 
because of your demeanor, I will say.
    On the other hand, you were quite rough with the 
Independent Counsel who you said misstated and misquoted the 
issues that I had dealt with earlier. Looking at the documents, 
let me have you look at the document labeled number one, and 
there's a yellow tab there that will show the part that's 
relevant. That's a declaration filed by you which you referred 
to this morning under the seal with the D.C. District Court on 
March 17, 1998, in which you were attempting to assert 
executive privilege for Mr. Lindsey and Mr. Blumenthal.
    On the very last page, under penalty of perjury, you 
assert, quote, I have discussed with the President these areas. 
Of course, you have many areas in there. But these areas of 
inquiry and the privileged nature of the information sought. 
The President has directed me to invoke formally the privileges 
applicable to these communications, unquote.
    Now, a week later, while the first document was still under 
seal, the President was asked by the Washington Post in Africa 
about rumors that executive privilege was being asserted. Let 
me direct you to the document number two which is that article. 
Now, this is at a time when there was a great deal of public 
interest in the issue of executive privilege, and the President 
did not want to deal with that.
    So let me read you the characterization by the Post in that 
case, which is Clinton, who has not yet acknowledged publicly 
even that he is asserting executive privilege, was pressed by 
reporters to explain why he is trying to block testimony. His 
voice curt and his expression cold--that's the Post reporter 
saying that, not me--the President responded as though he were 
a bystander in a controversy rather than its central character. 
All I know is I saw an article about it in the paper today, 
said Clinton, referring to the packet of news clippings faxed 
each morning to him on the road. I haven't discussed that with 
my lawyers. I don't know. You should ask someone who knows.
    My question is, did you discuss with President Clinton 
asserting executive privilege on behalf of the First Lady in 
that document, in the document which you referred to?
    Before you answer, let me just point out on page----
    Mr. Hyde. Let me point out your time has elapsed. I don't 
want to foreclose Mr. Ruff----
    Mr. Ruff. I would be happy to respond. I will be very 
brief.
    Mr. Cannon. Would you do that in the context of paragraph 
44 in which you specifically refer to the First Lady?
    Mr. Ruff. The situation--and this is fully set out in 
pleadings subsequent to this, Congressman, which I would be 
happy to point you to so you will have a full record. This 
issue was litigated. Independent Counsel made the argument that 
somehow the claim as to the conversations between Mr. 
Blumenthal and the First Lady wasn't covered because it hadn't 
been adequately focused on by the President.
    Now, in fact what I said in that subsequent litigation was 
quite consistent with my declaration and with normal process. 
We had to--because the Independent Counsel refused to provide 
any accommodation and tell us what he wanted--what areas he 
wanted to talk about, we had to go to the President and say 
they're inquiring about communications between Mr. Blumenthal 
and others and senior advisors to you, among whom is the First 
Lady. We don't know what they're going to ask. We need your 
authorization where an appropriate, protected communication 
among senior advisors is sought to be able to seek appropriate 
protection for it.
    The President authorized that. Obviously, we could not, and 
I don't think anybody would have expected us to go back to the 
President when a witness was in the grand jury and say, Mr. 
President, they just asked Mr. Blumenthal about a conversation 
he had with Rahm Emanuel, the First Lady, whoever it might be. 
Would you specifically authorize us to assert the privilege? 
And the court accepted that position.
    Chairman Hyde. I want to say to the gentleman from Utah 
that as your time is expiring, asking a complicated question 
prolongs, and I want to be fair to the witness. No, it isn't 
fair to you.
    Mr. Cannon. Mr. Chairman, my question was very simple. It 
was only had he talked to the President about asserting the 
privilege as to the First Lady and I didn't hear the answer to 
that question.
    Chairman Hyde. Well, okay. Well, we will just move on. Mr. 
Rothman from New Jersey.
    Mr. Rothman. Thank you, Mr. Chairman, and thank you, Mr. 
Ruff. I would like to make some observations. In my opinion, 
those at this point in our inquiry who are advocating the 
impeachment of President Clinton based on the charges raised by 
Judge Starr are going to do two very dangerous things. One is 
to expand the Constitution's definition or standard for 
impeachment without getting a vote of the people of the States, 
and, second, to turn traditional notions of fairness in 
American due process on their heads.
    Let me explain. We were told by experts over the past 
several weeks that the original standard was treason, bribery 
and high crimes and misdemeanors against the State and that the 
words ``against the State'' meant against the three branches of 
government, interferring with the President's ability to carry 
on his affairs of State. The words ``against the State,'' high 
crimes and misdemeanors against the State, that phrase 
``against the State'' was taken out by the committee on style, 
without the intention of changing the meaning. Those on the 
other side of the aisle and those who wish to have the 
President impeached at this stage of the proceedings say, 
``Well, forget about the words ``against the State,'' it is not 
there, so let's talk about personal conduct. It's got to be 
``if it's high crimes and misdemeanors, that's enough.''
    We heard from the panel today of Republican and Democratic 
prosecutors that no responsible prosecutor would raise the 
charges by Mr. Starr as crimes and would not indict on them. So 
then the folks on the other side of the aisle say, ``Well, 
okay, it does not have to be a crime, it can just be a 
violation of the civil rule of law, and lying in a civil 
deposition is something that's bad and we have to tell our 
children that it's bad.'' And when we tell them that there are 
penalties by a civil court judge against lying under oath in a 
civil deposition and that as a matter of fact maybe that was 
one of the reasons the President settled that civil case for 
$850,000, they say, ``Well, maybe that's not enough.'' What 
they want to do is add a new standard to the Constitution, 
treason, bribery, highcrimes and misdemeanors and wrongful 
noncriminal behavior.
    Well, I daresay that we can discuss the merits of that, but 
it is not presently in the Constitution. Then they want to say 
that Judge Starr presents evidence in his referral, which 
everyone agrees would be not admissible. Then yourself, Mr. 
Ruff, and Mr. Kendall present your rebuttal to his referral 
which is also not admissible, so we have not one single fact 
witness, and they say, ``Okay, but it's the President's 
obligation to prove his innocence,'' violating the long-
standing notion in American justice that the accused does not 
have to raise a defense, because it is up to the prosecution 
first to bear the burden of proof here, a clear and convincing 
standard of proof. They say it can be accomplished without one 
single fact witness. I daresay that as I read history, the 
framers of the Constitution would have recoiled in horror and 
shock at the notion that we as a Congress must accept the word 
of a government official, here the prosecutor, the Independent 
Counsel, without a single corroborating fact witness, not only 
to convict someone of a crime but to impeach the President of 
the United States. They would say it is preposterous. Maybe 
they will present some fact witnesses. If you accept their 
notion that what has occurred requires impeachment of the 
President, then you must say that the constitutional definition 
of impeachable offenses has been expanded and amended without 
the people's say-so and without the States voting on it and 
that we are going to turn the presumption of innocence and the 
burden of proof on the prosecution on its head and make it a 
presumption of guilt and put the burden of proving one's 
innocence on the accused.
    Chairman Hyde. I thank the gentleman. The gentleman from 
Utah has a unanimous consent request.
    Mr. Cannon. Mr. Chairman, I request that the two documents 
I referred to earlier be inserted into the record.
    Chairman Hyde. Without objection, so ordered.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.048
    
    [GRAPHIC] [TIFF OMITTED] T3321.049
    
    [GRAPHIC] [TIFF OMITTED] T3321.050
    
    [GRAPHIC] [TIFF OMITTED] T3321.051
    
    [GRAPHIC] [TIFF OMITTED] T3321.052
    
    [GRAPHIC] [TIFF OMITTED] T3321.053
    
    [GRAPHIC] [TIFF OMITTED] T3321.054
    
    [GRAPHIC] [TIFF OMITTED] T3321.055
    
    [GRAPHIC] [TIFF OMITTED] T3321.056
    
    [GRAPHIC] [TIFF OMITTED] T3321.057
    
    [GRAPHIC] [TIFF OMITTED] T3321.058
    
    [GRAPHIC] [TIFF OMITTED] T3321.059
    
    [GRAPHIC] [TIFF OMITTED] T3321.060
    
    [GRAPHIC] [TIFF OMITTED] T3321.061
    
    [GRAPHIC] [TIFF OMITTED] T3321.062
    
    [GRAPHIC] [TIFF OMITTED] T3321.063
    
    [GRAPHIC] [TIFF OMITTED] T3321.064
    
    [GRAPHIC] [TIFF OMITTED] T3321.065
    
    [GRAPHIC] [TIFF OMITTED] T3321.066
    
    [GRAPHIC] [TIFF OMITTED] T3321.067
    
    [GRAPHIC] [TIFF OMITTED] T3321.068
    
    [GRAPHIC] [TIFF OMITTED] T3321.069
    
    [GRAPHIC] [TIFF OMITTED] T3321.070
    
    Mr. Ruff. Do you need them back, Congressman?
    Mr. Cannon. No, thank you. I have copies.
    Chairman Hyde. The gentleman from California, Mr. Rogan.
    Mr. Rogan. Thank you, Mr. Chairman. Mr. Ruff, good 
afternoon. I thank you for your very cogent and able 
presentation today. I am also going to say something that might 
surprise you. I think you are right when you express the idea 
that words are everything. When it comes to looking at perjury 
and lying under oath, definitions may be misleading, they may 
even be maddening, but that is what lawyers do. We are supposed 
to parse these statements and look at the hypertechnical 
definitions, and determine whether reasonable inferences may be 
drawn.
    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 the people with 
a different definition, and he was sending the same message 
both to the American people and the court. Is that a fair 
assessment?
    Mr. Ruff. I think that is fair, Congressman, yes.
    Mr. Rogan. 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?
    Mr. Ruff. Yes, I think that's correct.
    Mr. Rogan. 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.
    Mr. Ruff. Yes.
    Mr. Rogan. 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?
    Mr. Ruff. Yes.
    Mr. Rogan. That is, I think, a very fair analysis on a 
technical legal point, and I will say that I agree with you. If 
the record supports this technical parsing, I don't think this 
would be an appropriate avenue for us to go down by way of an 
impeachment resolution.
    Would you agree with me, however, if the record did not 
support that, and demonstrated the President was lying, that 
would be fair game for our committee to review?
    Mr. Ruff. If any Member of this committee in good 
conscience in weighing the evidence concludes that my 
assessment is wrong, of course you must take it up and 
determine what action is appropriate.
    Mr. Rogan. Well, let me share with you what troubles me in 
this area and see if it rises to that level.
    In his January 17 deposition, in the Paula Jones case, the 
President was asked if he ever had sexual relations with Monica 
Lewinsky. His answer was definitive. He said, ``I had never had 
sexual relations with Monica Lewinsky. I have never had an 
affair with her.''
    I take it that was the definition that he adopted that 
would protect him from being charged with lying.
    Mr. Ruff. I think there are two pieces to that: the sexual 
relations definition which is encompassed in the actual 
document put before him, and what he has already testified, 
that sexual affair or sexual relationship encompasses for him 
sexual intercourse.
    Mr. Rogan. That part I understand. Now, let's move on to 
four days later. He was being interviewed by Jim Lehrer. What 
he didn't say is interesting. He did not use that carefully 
crafted phrase to deny his conduct. He used a much broader 
phrase, and I am quoting now from the interview of January 21. 
He said, ``There is no improper relationship.''
    Mr. Lehrer asked, ``No improper relationship. Define what 
you mean by that.''
    The President responded, ``Well, I think you know what it 
means. It means there is not a sexual relationship, an improper 
sexual relationship or any other kind of improper 
relationship.''
    On that very same day the President sent hispress 
secretary, Michael McCurry, out to deny that he had no improper 
relationship, not a sexual relationship. When the press asked Mr. 
McCurry to define what an improper relationship meant, Mr. McCurry gave 
us the now-famous phrase, ``I don't want to parse the words.''
    Finally, the President gave an interview to Roll Call, when 
he was asked about his relationship. The President said, ``Let 
me say the relationship was not an improper one but let me 
answer, it is not an improper relationship and I know what the 
word means.''
    Question: ``Was it in any way sexual?''
    The President: ``The relationship was not sexual and I know 
what you mean and the answer is no.''
    Then we had the famous finger-wagging speech a few days 
after that, where he said, ``Everybody, listen to me, I did not 
have sexual relations with Monica Lewinsky.''
    Mr. Ruff, he used those phrases interchangeably. There was 
no distinction in his mind when he used those phrases.
    Chairman Hyde. The gentleman's time has expired. The 
distinguished gentleman from Wisconsin, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman. Mr. Ruff, I think you 
have done an excellent job this afternoon.
    Mr. Ruff. Thank you, Congressman.
    Mr. Barrett. I think you have presented yourself very well. 
I think you have presented the President's case very well and 
you can be proud. For the first time today in these 
proceedings, those who are watching these proceedings and the 
Members here are engaged because this is the first opportunity 
I think that really you have been able to take advantage of to 
present the President's side of the case. This proceeding has 
been marked by claims by the Democratic side that this has not 
been a fair proceeding. You have said several times that you 
feel somewhat hampered because you have not--you don't know 
what you are responding to. I have here the articles of 
impeachment, the four articles of impeachment that have just 
been released to us, so apparently out of the feeling of 
fairness, you have about four minutes to respond to the four 
articles of impeachment which you have not seen. The first 
article deals with----
    Mr. Conyers. Would the gentleman yield just briefly? We had 
agreed not to give them the articles until after they had 
finished so that it wouldn't disrupt the proceedings. They just 
came off the press and it was given to the Members and it 
wasn't meant to disrespect counsel for the President, so I was 
hoping that we didn't try to get into that at this point.
    Mr. Barrett. Well, then I will withhold that. But I will 
ask you, Mr. Ruff, because this is your last opportunity with a 
Democratic questioner in these proceedings: From here we will 
move to the stage where we have to make decisions. Clearly the 
grand jury charge is the most serious charge. I want you to 
make your argument again to this committee as to why the 
President should not be impeached for his statements before the 
grand jury.
    Mr. Ruff. Congressman, let me go right to what has been the 
heart of the debate on this subject today. It is very real and 
it needs to be addressed in two respects. One is the pure 
factual what-would-trial-lawyers-do issue, in a setting in 
which the President says he did not touch certain parts of Ms. 
Lewinsky's body and she says he did. I think it is fair to say, 
amongst all those here who are former prosecutors, that that 
kind of conflict between two witnesses simply would never be 
pursued in a court of law. Should it be pursued in this 
committee? I think for the same reasons, because you cannot 
reach the level of clear and convincing evidence, you ought not 
even to consider whether, or if you consider it, you cannot 
arrive at the conclusion that the President committed an act, 
which would take you to the determination as to whether or not 
he ought to be impeached and removed from office. But I want to 
pass over all of that and go to the heart of the issue. Even if 
you take, as some of the Members on the majority side have 
suggested they do, Ms. Lewinsky's testimony as the truthful 
version, I still am convinced, and I believe that it is the 
position most consistent with our Constitution and our history 
and our form of government, that you may criticize the 
President (he has criticized himself) if you believe he acted 
in this fashion--you ought to censure him in whatever fashion 
seems most appropriate, but you cannot overturn the will of the 
people even if you find that there is clear and convincing 
evidence, which I do not think you can, that the President was 
wrong and Monica Lewinsky was right on that point.
    Mr. Barrett. Thank you, and I would yield back the balance 
of my time.
    Chairman Hyde. I thank the gentleman. The distinguished 
gentleman from South Carolina, Mr. Graham.
    Mr. Graham. Thank you, Mr. Chairman. Mr. Ruff, I agree with 
you. If it comes down to who touched who, we are not going to 
overturn the will of the people. My quarrel is not with you, 
Mr. Ruff. I think you are a fine lawyer and have done a good 
job. My quarrel is with your client. My quarrel goes sort of 
like this. We are bastardizing the English language. I can only 
believe your defense if I check my common sense at the door and 
I forget the way the world really works. I am singularly 
unimpressed with this defense. This defense is a rehashing of 
facts already in our presence except the quote about ``in 
Africa.'' I do appreciate you reinterpreting the facts. The 
term ``alone'' is a get-out-of-jail-free card according to your 
client because when you ask him were you ever alone with a 
woman, he says, ``Well, no, I wasn't,'' and he meant there were 
other people in the building. When you try to prosecute him for 
perjury based on a different version of how they related to 
each other, the defense is, ``Well, you can't corroborate it 
because there were only two people there. There was nobody else 
there.'' The term ``alone'' seems to be used in many ways, in 
an inconsistent way and in an offensive way to me. And if 
people in America follow Bill-Clinton-speak, we are going to 
ruin the rule of law, and he is not worth that. No one person 
in America is worth trashing out the rule of law and creating a 
situation where you can't rely on your common sense.
    I am not through yet. The biggest problem I have got with 
your client is not about a consensual affair gone awry. Grand 
jury perjury, no excuse, anytime, anywhere. It is not about how 
they touched. I believe your client lied when he said he wasn't 
paying attention to the discussion that Mr. Bennett had with 
the judge. I have seen the videotaped deposition. He is 
following it very closely, nodding his head. He knew it was a 
false affidavit because he colluded, in my opinion, with Ms. 
Lewinsky to defraud Paula Jones from getting to a relevant, 
material fact. I believe that. Nothing has changed in my 
opinion there. But the most disturbing thing about your client 
to me goes like this. Do you know Sidney Blumenthal?
    Mr. Ruff. I do.
    Mr. Graham. Right after January 18, your client, for the 
first time in my opinion, got wind of the fact that there may 
have been something known about Ms. Lewinsky that his little 
collusion with her would not protect, that they knew something 
he didn't know. This is a statement he makes to Mr. Blumenthal 
after Dick Morris, who is a real character but a pretty smart 
guy, tells the President that if he would just come clean it 
may save him because it might have saved Richard Nixon, and 
here is Blumenthal's discussion according to Blumenthal's 
testimony. Are they close friends by the way?
    Mr. Ruff. Is who close friends?
    Mr. Graham. Blumenthal and the President.
    Mr. Ruff. I truly do not know the answer to that.
    Mr. Graham. We will find out about that later. ``I said to 
the President, `What have you done wrong?' and he said, 
`Nothing. I haven't done anything wrong.' I said, `Well, then 
that's one of the stupidest ideas I've ever heard, the idea 
being confessing. Why would you do that if you've done nothing 
wrong?' And it was at this point that he gave his account of 
what happened to me, and he said that Monica, and it came very 
fast.'' Listen, female members of this committee. ``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 me.' She said that she would tell people 
they had an affair and that she was known as the stalker among 
her peers and that she hated it and that 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's surrounded by an oppressive 
force that's creating a lie about me and I can't get the truth 
out. I feel like the character in the novel The Darkness At 
Noon.' ''.
    Do you agree with me that the President of the United 
States is telling an operative, for lack of a better word, that 
Monica Lewinsky was a sexual predator coming on to him?
    Mr. Ruff. I take it that the implication in your use of the 
word ``operative,'' Congressman----
    Mr. Graham. What ever relationship Blumenthal had with him, 
he was passing on a story about Monica Lewinsky, giving this 
individual an impression that he was having to fight Monica 
Lewinsky off. Is that true or not?
    Mr. Ruff. You read the language.
    Mr. Graham. Thank you.
    Mr. Ruff. And I take it we can all understand it. But the 
one thing I want to be absolutely certain of----
    Mr. Graham. I'm not certain.
    Mr. Ruff. Because I think your implication is that this was 
somehow a directive to go out and trash Ms. Lewinsky or 
otherwise to denigrate her. And if that is your implication, 
let me tell you from someone who was involved, I think from day 
one through today in what the White House was doing and not 
doing, it didn't happen, never was thought of.
    Chairman Hyde. The gentleman's time has expired. The 
gentlelady from California, Mrs. Bono.
    Mrs. Bono. Thank you, Mr. Chairman. I will be happy to 
yield to Congressman Graham for the amount of time that he 
needs.
    Mr. Graham. Let's continue that thought. Is it your 
testimony that no one in the White House has ever planted a 
story in the press that Monica Lewinsky is a stalker, 
unreliable, a troubled young lady, shouldn't be believed, is 
that your testimony?
    Mr. Ruff. Congressman, obviously I wouldn't know whether 
there was ever anybody in the White House, but I will tell you 
this----
    Mr. Graham. There was no organized effort.
    Mr. Ruff. There was no authorized effort.
    Mr. Graham. Authorized effort.
    Mr. Ruff. Because we thought long and hard about how to 
defend this President and how to deal with the very proceedings 
that are going on today.
    Mr. Graham. Thank you very much. You have answered my 
question.
    Mr. Ruff. No, I have not, Mr. Congressman.
    Mr. Graham. Please. Please let me continue. You are saying 
there is no organized effort. I have got a mountain of press 
stories. January 31, 1998. ``Should they paint her as a 
friendly fantasist or a malicious stalker? `That poor child has 
serious emotional problems,' Representative Charlie Rangel 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 other 
experiences.' '' One of the most respected members of this 
House who was passing along something told to him by somebody. 
Charlie Rangel is a good man, but he was of the belief that 
this is a disturbed young lady.
    I will read to you other press accounts shortly after. 
``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 they not be identified said she was 
known as a flirt who wore skirts too short and was a little bit 
weird.'' I can go on and on. The troubled-girl defense. ``The 
one White House aides have been quietly testing out on 
reporters is the troubled-girl defense. The great feeler of all 
pain who also bears the scars of a turbulent upbringing was 
just being kind to Lewinsky because she was a child of a 
difficult divorce, because Bernard Lewinsky's parents were 
German Jews who escaped to El Salvador. The White House even 
speculated about family Holocaust scars.'' I have tons of press 
reports linked back to the White House saying this girl is 
unreliable, that she is basically crazy and weird, and I am 
telling you I believe your client left that deposition, planted 
a story in Blumenthal's mind and tried to get Betty Currie to 
believe she wanted to have sex with me and I couldn't do that, 
he was trying to tell Betty Currie that she was coming on to 
him and that the President of the United States, his state of 
mind is established based on what he told two people close to 
him, and shortly after that, shortly after that, the press 
operation in the White House turns on this young lady, they 
were calling her unbelievably vile names, questioning her 
sanity, and if it had not been for that blue dress, they would 
have tore her to pieces.
    Mr. Conyers. Mr. Chairman, a point of order. Charlie 
Rangel's name has been mentioned as if he was working in 
connection with the White House.
    Mr. Graham. No, sir.
    Chairman Hyde. Let the gentleman finish speaking.
    Mr. Conyers. We should be more careful about the use of 
Members of integrity in the House and what their connection is 
with the narrative that my distinguished colleague has put 
forward.
    Chairman Hyde. Well, the Chair will say he heard Mr. Graham 
read from a newspaper account.
    Mr. Graham. Could I please make this correct. I have no 
higher opinion of anybody than Charlie Rangel. He is a Marine 
Corps veteran who served in Korea. Charlie Rangel was repeating 
something somebody told him. He had no reason to believe----
    Mr. Conyers. How do you know?
    Mr. Graham. I believe that is what the newspaper accounts 
show, that Mr. Rangel was passing on a thought planted in his 
mind and he is a very innocent victim of the spin machine like 
maybe all of us are around here.
    Ms. Waters. Mr. Rangel is smart enough to speak his own 
words. He doesn't need to have anybody plant them.
    Chairman Hyde. The gentlelady is not recognized. The 
gentleman's time has almost expired.
    Mr. Graham. I yield back the balance of my time and I think 
I will introduce----
    Mr. Frank. Mr. Chairman, point of order. The witness was on 
the point of answering when the point of order came.
    Chairman Hyde. Oh, all right.
    Mr. Frank. Shouldn't the witness have a chance to answer?
    Chairman Hyde. He surely should. The gentleman may answer 
if he wishes.
    Mr. Ruff. I would only make two points, with all due 
respect, Congressman. Other than your speculation, you have no 
basis to suggest that the President of the United States ever 
directed any such----
    Mr. Graham. Mr. Ruff, how do you establish state of the 
mind of a witness?
    Chairman Hyde. Mr. Graham, please.
    Mr. Ruff. I think out of all due courtesy, I am entitled to 
30 seconds to respond to a 10-minute question. You have no 
basis for making that allegation, and I will tell you that to 
the extent I have any personal knowledge, I will represent to 
you that to the contrary, a very careful and well conceived 
decision was made to do our damnedest to ensure that in fact no 
such personal attack was ever made.
    Thank you, Mr. Chairman.
    Chairman Hyde. I thank the gentleman. Mr. Nadler.
    Mr. Nadler. I don't know if this is a point of order or 
what, but I would just ask if the Chair would suggest to the 
witness he speak more closely to the microphone.
    Mr. Ruff. I apologize. It has been a long afternoon, but I 
will try to stay close.
    Mr. Jenkins. Mr. Chairman.
    Chairman Hyde. Mr. Jenkins.
    Mr. Jenkins. Mr. Chairman, I have time remaining and I 
yield it to the gentleman from South Carolina.
    Mr. Graham. Mr. Ruff----
    Mr. Frank. Parliamentary inquiry.
    Chairman Hyde. The gentleman may state it. Just a moment. I 
am about to entertain a parliamentary inquiry. What is your 
inquiry?
    Mr. Frank. The question was, Mr. Jenkins hadn't been called 
on at all before?
    Chairman Hyde. He reserved his time. Mr. Graham has been 
yielded Mr. Jenkins' time.
    Mr. Graham. I suggest this solution to this problem. That I 
will get the press reports that I am referring to and I will 
introduce them into the record, and every committee member will 
have a chance to look and see what was going on toward Ms. 
Lewinsky, what was coming out of the White House, and they can 
make their own decisions about how this started.
    I also would like to point both--the committee members to 
the fact that we have statements from the President shortly 
after the deposition where he is planting in the mind of Mr. 
Blumenthal a story that is patently false, a story that if you 
believe he was having to defend himself from Monica Lewinsky, 
the stalker, a term he used. Shortly after the President used 
the term stalker, we see press accounts where White House 
sources are calling her a stalker. He goes to his secretary the 
day after the deposition and runs a passage by her basically 
saying, ``She wanted to have sex with me and I couldn't do 
that.'' I have always wondered what that was about. Now I 
believe it is not so much trying to influence her testimony as 
to plant into Ms. Currie's mind or thought pattern that Monica 
Lewinsky was coming on to him.
    Every Member needs to look at this. This is something that 
is more than consensual sex. This is something in my opinion, 
ladies and gentlemen, where a high public official is using the 
trappings of his office, the White House, to go after a 
potential witness who if that witness is called and gives 
testimony down the road in a sworn fashion, not just tapes, 
that what he is trying to do is set up a defense to make her 
not believable; that this witness possesses information that 
would hurt his political and legal interest. The President of 
the United States, I believe, planted stories that were false 
and shortly after those stories were planted, the White House 
operation went into effect, notifying the press that ``if you 
ever hear anything about this witness you need to know she's 
unreliable, she's a stalker, she's basically not a responsible 
person''. Bill Clinton did in fact, like with so many woman in 
the past, make sure that Monica Lewinsky was going to go 
through hell, and that the only thing that stopped this was it 
was just maybe one too many women to trash out or it became the 
blue dress. You can think what you want to about Linda Tripp 
but I can tell you right now, I believe from the bottom of my 
heart, ladies and gentlemen, if she didn't have that blue dress 
proving a relationship, they would have cut her up. I have got 
evidence in the press reports coming out from the White House 
sources after the President planted in the minds of two people 
close to him that she was coming on to him--that was a false 
story--and I do believe for a moment in time the President of 
the United States used the full power and force of the White 
House to go after a young lady so that it couldn't hurt him 
politically and legally, and that is far more like Watergate 
than Peyton Place and I am going to believe that probably till 
I die and I don't ask you to accept my rendition of the facts. 
I do ask every Member, especially the female Members here, if 
you have ever done a rape trial, you know what comes women's 
way sometimes, they wear their skirts too tight and they're 
flirtatious and you've got to watch out for these tight ladies, 
they even called her Elvira at one time in one of the press 
reports. That this is serious, and I do wish the President 
would reconcile himself with the law, Mr. Ruff. I do wish he 
would quit saying ``alone'' means one thing one time and it 
means something else another time. I do believe that the 
President of theUnited States was willing to use the weight of 
his office, take a consensual sex partner, a 22-year-old lady, and he 
was going to turn on her and they were going to unleash stuff on her 
that she would have never been able to handle, and that to me is far 
worse or as bad as anything that anybody has brought to my attention in 
this case. I need to reconcile this in my mind and I will try to keep 
an open heart so we can bring this country together. But I will give 
the Members of the committee the press reports and you can read for 
yourself what they were about to do and what they were calling this 
young lady and it was not going to be pretty. And I will yield back the 
balance of my time, and I will apologize to this committee for getting 
upset because this does upset me.
    Chairman Hyde. Mr. Buyer has time that he wants to use now.
    Mr. Frank. Mr. Chairman, I have a unanimous consent 
request.
    Chairman Hyde. But I would be happy to entertain motions. 
Mr. Frank has one.
    Mr. Frank. I would ask unanimous consent after that loaded, 
filibustered question that the gentleman be given a chance to 
respond. To put a question such as that, to use up the full 
five minutes deliberately so that there could be no chance to 
respond is inappropriate and I would ask unanimous consent that 
the witness be given a couple of minutes to respond.
    Chairman Hyde. I would join in that unanimous consent to 
give Mr. Ruff time.
    Mr. Graham. Absolutely.
    Chairman Hyde. But before we get to that, we have Ms. 
Waters to deal with. Ms. Waters.
    Ms. Waters. A point of personal privilege. I resent Mr. 
Lindsey's reference----
    Chairman Hyde. Ms. Waters, state your point of order.
    Ms. Waters. Yes. My point of personal privilege is the 
reference that he made to every woman on this committee.
    Chairman Hyde. That certainly includes you.
    Mr. Graham. Ma'am, I certainly didn't mean to do anything 
disparaging. All I am saying is I have been a prosecutor in 
rape cases----
    Ms. Waters. I know what you did not mean to do but I have a 
point of personal privilege.
    Chairman Hyde. Please state your point.
    Ms. Waters. My point is that he made a reference to what 
every woman on this committee should do and how we should feel 
about the spin that he just put on, wild allegations about the 
President of the United States. I think, as one of the women of 
this committee and every other woman should have an opportunity 
to respond, since he is talking for us and about us.
    Chairman Hyde. I think your point is you have taken offense 
and you have expressed your resentment.
    Ms. Waters. No, I have not. I am asking your permission to 
do such, Mr. Chairman.
    Mr. Goodlatte. Regular order, Mr. Chairman.
    Chairman Hyde. It really isn't a point of order. I want you 
to express yourself. I think you have. Could you do it in 
another minute maybe?
    Ms. Waters. Yes. I would like to say that every member of 
this committee should be offended by the spin that was just--
the wild spin that was just put on by Mr. Lindsey in attempting 
to somehow send a message to Monica Lewinsky that she has been 
undermined by the President of the United States and thus set 
her up to be angry at the President in case she is called as a 
witness. We are no fools.
    Chairman Hyde. Thank you very much. Now Mr. Buyer is 
recognized.
    Mr. Frank. Mr. Chairman, I had a unanimous consent request.
    Chairman Hyde. I am sorry, Mr. Ruff is recognized for 3 
minutes.
    Mr. Ruff. I will try not to use all of that time, Mr. 
Chairman. I appreciate your letting me respond. Congressman 
Graham, I have the greatest respect for you. I have to make two 
fundamental points: One, I absolutely reject the notion that 
the President of the United States either explicitly or 
implicitly authorized, directed, hinted at or caused any attack 
of the sort you describe. But second, I must say, even out of 
the greatest respect for members of this committee, that to be 
greeted at the end of a long day by the next to the last 
speaker with a litany of charges never heard before, not even I 
believe included in whatever document it was that I was handed 
a few minutes ago, does not give us any reasonable opportunity 
for fair response, and I would ask the Chair's permission that 
if this is to be in any respect a factor in the consideration 
of this committee's grave duties over the next few days that we 
be given an opportunity first to have clear and explicit 
statements by the Congressman with whatever supporting 
information he believes he has, and second a reasonable 
opportunity to respond.
    Chairman Hyde. Well, we have a schedule to which we are 
trying to adhere. Mr. Graham can put together a package of his 
documentation and get it to you immediately for your review and 
response. We are not going to be through with our business, I 
don't think, until Saturday at the earliest, and anything you 
want to add by way of rebuttal or amplification or commentary 
would be received by the committee. This is kind of a wild card 
situation, unanticipated, but----
    Mr. Graham. Mr. Chairman, since I was referred to, I will 
be glad to do that. In terms of the timing, as I have said, 
this became clear to me after trying to figure out what he was 
saying to Betty Currie and we will all have a chance to 
evaluate it if it makes any sense and I will gladly give you 
the----
    Ms. Waters. Regular order, Mr. Chairman.
    Chairman Hyde. We are trying to wind this up and I am 
trying to get Mr. Graham--and he seems to be agreeing--to 
present his information to Mr. Ruff, whereupon Mr. Ruff can 
analyze it and respond in some appropriate way. You just let me 
know how you want to do it, and if you want to come back. But 
we have a schedule.
    Mr. Ruff. I will be glad to do that. I appreciate it, Mr. 
Chairman. We will work within your time lines.
    Chairman Hyde. Very good.
    Mr. Conyers. Mr. Chairman, I was hoping that there would be 
a way to work out his return, that Mr. Ruff would need to be 
back if he so desired.
    Chairman Hyde. If Mr. Ruff so desires. But I would hope 
this can be handled through the U.S. mail.
    Mr. Ruff. If I could leave this open, Mr. Chairman, and Mr. 
Conyers, thank you for the opportunity, if I could get back to 
you and let you know how best we would like to be able to 
respond.
    Mr. Conyers. That is fair.
    Chairman Hyde. Sure. We will give you an opportunity to 
respond but we are on a schedule. We have to file our report 
next week, it has to lay over two days, Christmas is coming, 
and all of this enters into our calculus. But you are entitled 
to respond because those were serious charges.
    Mr. Ruff. Thank you, Mr. Chairman. We will do so.
    Chairman Hyde. Now Mr. Buyer is recognized for 5 minutes.
    Mr. Buyer. Thank you, Mr. Chairman. I was struck by Ms. 
Waters' comments that somehow Mr. Graham's statements here was 
an effort to anger Monica Lewinsky against the President. When 
I read Monica Lewinsky's deposition after the President's 
statement to the American people on August 17, there wasn't 
anybody that could have angered Monica Lewinsky more than that 
statement. There isn't anything anybody here can do. The 
President pretty well angered Monica Lewinsky and it really 
came out in that deposition that she gave to Ken Starr. One 
thing that is bothering me is that part of your defense here 
today, and Mr. Craig's of yesterday, is to come before the 
committee and to make an admission that the President's intent 
was to be evasive and incomplete, mislead, yet he was legally 
and technically accurate in anything and everything he did. Not 
only all of yesterday but today you were also very accurate, 
never ever to say the President lied. So you have done a good 
job. You stuck with the game plan. I agree with you, to prove 
perjury, the trier here must make an assessment: it must be a 
plausible and believable explanation with regard to the state 
of mind. Now, if in fact you have a witness who has perhaps a 
motive to lie, if in fact they are not helpful, they have an 
attitude to be misleading, to be evasive, to be incomplete, 
that all of that is relevant evidence to the trier of fact, is 
it not?
    Mr. Ruff. Absolutely. It is.
    Mr. Buyer. It is. Okay. Now, one thing that I am trying to 
reconcile, and Mr. Graham brought up the comment about, if I 
have to believe some of the defense, you are saying to leave 
our common sense out the door. I want to go back to the gifts 
for the moment, because of this question about feigned 
forgetfulness. Now, you worked with the President more than 
anyone else in this room perhaps, and Bruce Lindsey knows him 
much, much better. The President's memory is very good, is it 
not?
    Mr. Ruff. It is.
    Mr. Buyer. Now, I guess what is troubling to me is when I 
read the referral, in reference to the gifts, it says a day or 
two after Christmas. And I remember that, because I was with 
the President on Air Force One, we went to Bosnia, and when we 
came back from Bosnia a few days later, what happens? Ms. 
Currie lets Monica Lewinsky into the White House on a Sunday 
morning, December 28. She lets Ms. Lewinsky in there so she can 
give gifts to the President. But what is interesting is what 
happened later. The two of them, according to the referral 
which cites then the grand jury testimony, is that she wants to 
know how she ended up on the witness list. The President is not 
sure how she ended up on the witness list and said, well, it 
must have been Linda Tripp or maybe it was the Secret Service. 
But then she says, she mentioned with anxiety that she received 
a subpoena with regard to the hat pin, and he asked a specific 
question about the hat pin. Then three weeks later, three weeks 
later, the President was asked a specific question at the civil 
deposition with regard to what gifts he gave he said, ``I don't 
remember. Do you know what gifts?'' And then he comes back and 
says----
    Mr. Ruff. It's the last part that's important, Congressman.
    Mr. Buyer. But this feigned memory about I don't recall. 
There are a series--I don't have the time, I see that my yellow 
light is on, but I have a series of case law and I know you 
have seen it also, where individuals have been prosecuted for I 
don't recall, I don't know, I don't remember when in fact they 
know. I have difficulty reconciling, and I want you to give 
your explanation, isn't in fact the President feigning 
fogetfulness, asking the witness about the hat pin, then three 
weeks later testifies and says, ``I don't know. I don't 
recall.'' I would ask unanimous consent that Mr. Ruff be 
permitted to answer that question to reconcile.
    Mr. Ruff. Just very briefly, because you yourself pointed 
at the critical issue there and I commend you not only to the 
transcript of his testimony but, when we all get to see it, to 
the video as well. It is clear that what he is saying is, ``I 
don't recall, please remind me.'' It is virtually one sentence. 
Look, I don't know how many presents the President gets, but 
lots. What he said was not, ``I don't recall any, I don't 
recall ever getting gifts.'' What he said was, ``I don't 
recall, tell me which ones, remind me which ones they are.'' 
And that it seems to me is the natural human response under the 
circumstances.
    Chairman Hyde. The gentleman's time has expired.
    Mr. Goodlatte. Mr. Chairman, I have a unanimous consent 
request.
    Chairman Hyde. Please state it.
    Mr. Goodlatte. I would ask unanimous consent that a letter 
signed by about 80 scholars and former elected officials and 
Cabinet members, and so on, calling for the impeachment of the 
President, rebutting some of the information earlier submitted 
by other scholars be made a part of the record.
    Chairman Hyde. Without objection, so ordered.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.071
    
    [GRAPHIC] [TIFF OMITTED] T3321.072
    
    [GRAPHIC] [TIFF OMITTED] T3321.073
    
    [GRAPHIC] [TIFF OMITTED] T3321.074
    
    [GRAPHIC] [TIFF OMITTED] T3321.075
    
    [GRAPHIC] [TIFF OMITTED] T3321.076
    
    [GRAPHIC] [TIFF OMITTED] T3321.077
    
    Ms. Waters. I have a unanimous consent request, Mr. 
Chairman. I have a letter here that was sent by one of our 
colleagues, Mr. Alcee Hastings, talking about the way that 
information was received in his case, and asking that 
information be provided in ways that other Members of Congress 
would have easy access.
    Chairman Hyde. Without objection, it may be made a part of 
the record.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T3321.078
    
    [GRAPHIC] [TIFF OMITTED] T3321.079
    
    Chairman Hyde. We have reached the end of a stimulating 
day. I want to thank Mr. Ruff for his patience and for his 
superb presentation. We will convene at 9 a.m. tomorrow. These 
hearings, pursuant to House Resolution 581, are concluded, and 
the committee stands adjourned until 9 a.m. tomorrow.
    Mr. Ruff. Thank you, Mr. Chairman, for your courtesy. I 
appreciate it.
    Chairman Hyde. Thank you.
    [Whereupon, at 6:00 p.m., the committee was adjourned.]