[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]
THE CONSEQUENCES OF PERJURY AND
RELATED CRIMES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
THE CONSEQUENCES OF PERJURY AND RELATED CRIMES
__________
DECEMBER 1, 1998
__________
Serial No. 67
Printed for the use of the Committee on the Judiciary
--------
U.S. GOVERNMENT PRINTING OFFICE
53-247 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 S. 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 M. 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., 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
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 1, 1998................................................. 1
OPENING STATEMENT
Hyde, Hon. Henry J., a Representative in Congress from the State
of Illinois, and Chairman, Committee on the Judiciary.......... 2
WITNESSES
Battalino, Barbara, Los Osos, California......................... 7
Carney, Thomas P., Lieutenant General, USA (Ret.)................ 81
Dershowitz, Alan M., Felix Frankfurter Professor of Law, Harvard
Law School..................................................... 84
Edney, Leon A., Admiral, USN (Ret.).............................. 76
Higginbotham, Hon. A. Leon Jr., Paul, Weiss, Rifkind, Wharton &
Garrison, Washington, DC....................................... 66
Parsons, Pam, Atlanta, Georgia................................... 6
Richardson, Hon. Elliot L., Milbank, Tweed, Hadley & McCloy,
Washington, DC................................................. 74
Rosen, Jeffrey, Associate Professor of Law, George Washington
University Law School.......................................... 97
Saltzburg, Stephen A., Howrey Professor of Trial Advocacy,
Litigation, and Professional Responsibility, George Washington
University Law School.......................................... 90
Tjoflat, Hon. Gerald B., U.S. Circuit Judge, U.S. Court of
Appeals for the Eleventh Circuit, Jacksonville, FL............. 60
Wiggins, Hon. Charles E., Senior U.S. Circuit Judge, U.S. Court
of Appeals for the Ninth Circuit, Las Vegas, NV................ 62
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Battalino, Barbara, Los Osos, California: Prepared statement 9
Carney, Thomas P., Lieutenant General, USA (Ret.): Prepared
statement...................................................... 83
Dershowitz, Alan M., Felix Frankfurter Professor of Law, Harvard
Law School: Prepared statement................................. 87
Edney, Leon A., Admiral, USN (Ret.): Prepared statement.......... 78
Goodlatte, Hon. Bob, A Representative in Congress from the State
of Virginia: Article from The New York Times dated Nov. 17,
1998........................................................... 36
Higginbotham, Hon. A. Leon Jr., Paul, Weiss, Rifkind, Wharton &
Garrison, Washington, DC: Prepared statement................... 69
Hyde, Hon. Henry J., a Representative in Congress from the State
of Illinois, and Chairman, Committee on the Judiciary: Prepared
statement...................................................... 3
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas: Prepared statement............................. 173
Moorer, Thomas H., Admiral, USN (Ret.), Former Chairman of the
Joint Chiefs of Staff: Prepared statement...................... 149
Richardson, Hon. Elliot L., Milbank, Tweed, Hadley & McCloy,
Washington, DC: Prepared statement............................. 75
Rosen, Jeffrey, Associate Professor of Law, George Washington
University Law School: Prepared statement...................... 98
Saltzburg, Stephen A., Howrey Professor of Trial Advocacy,
Litigation, and Professional Responsibility, George Washington
University Law School: Prepared statement...................... 93
Scott, Hon. Robert C., a Representative in Congress from the
State of Virginia:
Rule 6(c) of the Rules of Criminal Procedure................. 119
United States v. Hvass....................................... 123
United States v. Debrow...................................... 128
Weinburg, Robert L., The Fatal Flaw in Starr's Case for Grand
Jury Perjury: An Essential Element is Missing.............. 119
Starr, Hon. Kenneth W., Office of the Independent Counsel,
Responses to Questions Posed by Members of the Committee on the
Judiciary...................................................... 176
Wiggins, Hon. Charles E., Senior U.S. Circuit Judge, U.S. Court
of Appeals for the Ninth Circuit, Las Vegas, NV: Prepared
statement...................................................... 63
APPENDIX
Material submitted for the hearing............................... 173
THE CONSEQUENCES OF PERJURY AND RELATED CRIMES
----------
TUESDAY, DECEMBER 1, 1998
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 9:45 a.m., in
room 2141, Rayburn House Office Building, Hon. Henry J. Hyde
[chairman of the committee] presiding.
Present: Representatives Henry J. Hyde, 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. 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,
office 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; 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; Steven F. Reich,
investigative counsel; Sampak P. Garg, investigative counsel;
and Maria Reddick, minority clerk.
OPENING STATEMENT OF CHAIRMAN HYDE
Mr. Hyde. The committee will come to order. Today the
committee holds an oversight hearing on the consequences of
perjury and related crimes like subornation of perjury,
obstruction of justice, witness tampering, misprision, and
criminal contempt. All of these crimes thwart the proper
workings of the justice system.
We hold this hearing because Rule X of the House of
Representatives requires us to exercise continuing oversight
over the ``application, administration, execution and
effectiveness'' of the laws under our jurisdiction. Of
particular relevance here, we have jurisdiction over the
judicial system and the criminal code.
Commentators of all types have fiercely debated the gravity
of these crimes in recent months. Otherwise responsible and
thoughtful people have argued they are not so serious,
particularly when they occur in civil cases or when they relate
to hiding private sexual matters. Indeed, some have even
suggested that being a gentleman requires one to lie under oath
about sex.
By their very nature, these kinds of crimes attack the
integrity of the judicial system. Indeed, that is why they are
crimes. To argue that in certain instances these crimes mean
little is to say that our judicial system means little. I
reject that notion.
Remember the fundamentals. We have a judicial system
because it is fairer and more civilized to settle disputes
through judicial means rather than to settle them through brute
force--trial by combat. When brute force prevails, the strong
win and the weak lose--an efficient method but hardly a just
one. It is particularly disturbing that many who generally
claim to represent the weak now argue that the powerful should
be allowed a pass when they break the rules.
There is nothing just or fair in a double standard. We make
perjury, subornation of perjury, obstruction of justice, and
witness tampering crimes because a judicial system can only
succeed if its procedures expose the truth. If citizens are
allowed to lie with impunity or encourage others to tell false
stories or hide evidence, judges and juries cannot reach just
results. At that point, the courtroom becomes an arena for
artful liars and the jury a mere focus group choosing between
alternative fictions.
So for my friends who think that perjury, lying, and deceit
are in some circumstances acceptable and undeserving of
punishment, I respectfully disagree. Every citizen is entitled
to her day in court, to have her claims considered under the
rule of law and free from these abhorrent acts. That applies no
matter how small or unpopular or unimportant that person is and
no matter how great or popular or powerful her opponent is.
Chief Justice Burger resoundingly affirmed the seriousness
of perjury when he wrote in United States v. Mandujano, 425
U.S. 564, 1976:
In the constitutional process of securing a witness's
testimony, perjury simply has no place whatever. Perjured
testimony is an obvious and flagrant affront to the basic
concepts of judicial proceedings. Effective restraints against
this type of egregious offense are therefore imperative. The
power of subpoena, broad as it is, and the power of contempt
for refusing to answer, drastic as that is, and even the
solemnity of the oath, cannot ensure truthful answers. Hence,
Congress has made the giving of false answers a criminal act
punishable by severe penalties. In no other way can criminal
conduct be flushed into the open where the law can deal with
it.
Similarly, our cases have consistently, indeed without
exception, allowed sanctions for false statement or perjury.
They have done so even in instances where the perjurer
complained that the government exceeded its constitutional
powers in making the inquiry.
Even when the weak dare to confront the strong, the truth
is not trivial. Playing by the rules is not trivial. The whole
history of our civilization tells us that justice is not
trivial. Lying poisons justice. If we are to defend justice and
the rule of law, lying must have consequences. We will explore
the impact of lying on the rule of law and the implications of
the double standard from our distinguished panel, whom I am
pleased to welcome.
With that, I will recognize Mr. Conyers for an opening
statement, and after Mr. Conyers we will go to our witnesses
who are at the table. And all other members, if they have an
opening statement, without objection it will be included in the
record at this point.
[The prepared statement of Mr. Hyde follows:]
Prepared Statement of Hon. Henry J. Hyde, Chairman, Committee on the
Judiciary, and a Representative in Congress From the State of Illinois
Today, the Committee holds an oversight hearing on the consequences
of perjury and related crimes like subornation of perjury, obstruction
of justice, witness tampering, misprision, and criminal contempt. All
of these crimes thwart the proper workings of the justice system.
We hold this hearing because Rule X of the House of Representatives
requires us to exercise continuing oversight over the ``application,
administration, execution, and effectiveness'' of the laws under our
jurisdiction. Of particular relevance here, we have jurisdiction over
the judicial system and the criminal code.
Commentators of all stripes have fiercely debated the gravity of
these crimes in recent months. Otherwise responsible and thoughtful
people have argued that they are not so serious, particularly when they
occur in civil cases or when they relate to hiding ``private'' sexual
matters. Indeed, some have even suggested that being a gentleman
requires one to lie under oath about sex. By their very nature, these
kinds of crime attack the integrity of the judicial system. Indeed,
that is why they are crimes.
To argue that, in certain instances, these crimes mean little is to
say that our judicial system means little. I emphatically reject that
notion.
Remember the fundamentals. We have a judicial system because it is
fairer and more civilized to settle disputes through judicial means
than to settle them through brute force. When brute force prevails, the
strong win and the weak lose--an efficient method, but hardly a just
one. It is particularly disturbing, and indeed shameful, that many who
generally claim to represent the weak now argue that the powerful
should be allowed a pass when they break the rules. There is nothing
just or fair in a double standard.
We make perjury, subornation of perjury, obstruction of justice,
and witness tampering crimes because a judicial system can only succeed
if its procedures expose the truth. If citizens are allowed to lie with
impunity--or encourage others to tell false stories--or hide evidence--
judges and juries cannot reach just results. At that point, the
courtroom becomes an arena for artful liars and the jury a mere focus
group choosing between alternative fictions.
So, for my friends who think that perjury, lying, and deceit are in
some circumstances acceptable and undeserving of punishment, I
respectfully disagree. Every citizen is entitled to her day in court--
to have her claims considered under the rule of law and free from these
abhorrent acts. That applies no matter how small, or unpopular, or
unimportant, that person is--and no matter how great, or popular, or
powerful, her opponent is.
Chief Justice Burger resoundingly affirmed the seriousness of
perjury when he wrote:
In [the] constitutional process of securing a witness'
testimony, perjury simply has no place whatever. Perjured
testimony is an obvious and flagrant affront to the basic
concepts of judicial proceedings. Effective restraints against
the type of egregious offense are therefore imperative. The
power of subpoena, broad as it is, and the power of contempt
for refusing to answer, drastic as that is--and even the
solemnity of the oath--cannot insure truthful answers. Hence
Congress has made the giving of false answers a criminal act
punishable by severe penalties; in no other way can criminal
conduct be flushed into the open where the law can deal with
it.
Similarly, our cases have consistently--indeed without
exception--allowed sanctions for false statement or perjury;
they have done so even in instances where the perjurer
complained that the Government exceeded its constitutional
powers in making the inquiry.
United States v. Mandujano, 425 U.S. 564, 576-77 (1976) (plurality
opinion) (footnote and citations omitted).
Even when the weak dare to confront the strong, the truth is not
trivial--playing by the rules is not trivial. The whole history of our
civilization tells us that justice is not trivial.
Lying poisons justice. If we are to defend justice and the rule of
law, lying must have consequences. We will explore the impact of lying
on the rule of law and the implications of the double standard from our
distinguished panel whom I again welcome.
With that, I will recognize Mr. Conyers for an opening statement.
Mr. Hyde. Mr. Conyers.
Mr. Conyers. Good morning, Mr. Chairman and members of the
committee, and the distinguished judges, professors and lawyers
who are our primary witnesses today. Now that we are 3 months
into the third impeachment inquiry in the Nation's history, I
believe we ought to take stock of what this committee has done
and where we are going.
During the first 2 months, all the committee did was to
dump salacious grand jury material onto the Internet. The third
month was spent hearing an incredibly one-sided presentation
from the prosecutor, having no firsthand knowledge of the
facts, and deposing two witnesses that have a peripheral
relationship at best to the Independent Counsel's referral.
Now once again the committee is floundering into another
unrelated area. Last evening we were informed that the
committee would now widen its investigation into campaign
finance matters. With that announcement, this committee now
amazingly proposes to transform itself into the discredited
Burton committee. Campaign finance has no relationship to the
Starr referral. And, amazingly, this committee is now
subpoenaing both the President of the United States and the
Attorney General of the United States to provide documents that
they don't have authority to provide without a court order,
whose criteria this committee is yet to even satisfy.
Now, there are other flaws with our process at this time,
perhaps fatal flaws. Ten days away from a proposed vote on
articles of impeachment, and the American people and the
President still don't know what the charges are. Neither do we.
Well, Mr. Chairman, we cannot play hide and seek when you
propose to overturn a national election. This close to such a
monumental vote in the committee, you should be laying your
cards on the table for ourselves and the American people.
And whether you like it or not, 1 week away from such a
monumental vote is no time to commence an entirely new area of
investigation into campaign finance and to transform this
committee into the Burton committee. The American people and
Democrats and others believe that the President's conduct was
bad, but not impeachable.
Now, for today's hearings. I believe that there is some
important discussion on perjury to be gleaned from some of our
experienced witnesses here. But don't we all know that perjury
is serious regardless of the underlying matter? We know that
people go to jail when they perjure themselves, including civil
proceedings. You learn that in first year criminal procedure.
But we are not teaching a criminal procedure course.
Rather, we are--more aptly, you, the Republican majority on
this committee--are proposing, if I hear you correctly, to
impeach a President. And even Republican witnesses at the
November 9 hearing said that the charges, if proven true, would
not amount to impeachable offenses. It has been stated
repeatedly on the record and in this hearing and in the
constitutional scholars community. That is the point that
really diminishes so much from this hearing.
Now, parenthetically, I for one think that while the
President misled the country and his family, the legal case of
perjury against him isn't particularly strong, and most likely
would never have been pursued had he not been a President
chased by a zealous prosecutor like Kenneth W. Starr. Why?
Because his answers regarding Monica Lewinsky in the context of
the Paula Jones litigation may not even meet the materiality
test, and were in fact later excluded from the Paula Jones
litigation entirely by a judge who referred to them as not
relevant.
Second, no one has proven that the President's statements
regarding Ms. Lewinsky at the Paula Jones deposition and grand
jury appearance were not technically true. If so, they cannot
possibly be grounds for perjury.
And, finally, I am concerned that the two judges appearing
here today on behalf of the Republican majority should be very
cautious, because they may violate the spirit if not the letter
of the judicial canons which I have right here by commenting on
an ongoing case. Please, members of the judiciary, be careful.
Mr. Chairman, Henry Hyde, I am deeply saddened by what this
process is becoming. Thank you.
Mr. Hyde. Thank you.
Our first witness is Ms. Pam Parsons of Atlanta, Georgia.
Ms. Parsons holds Bachelor's and Master's degrees from Brigham
Young University. In the late 1970's and early 1980's she was
one of the most successful women's basketball coaches in the
country, coaching at Old Dominion University and the University
of South Carolina. In 1984 Ms. Parsons pled guilty to a Federal
perjury charge based on her having given false testimony about
a sexual relationship during a civil case.
Our second witness is Dr. Barbara Battalino of Los Osos,
California. Dr. Battalino is a graduate of the College of Mount
St. Vincent, the Philadelphia College of Osteopathic Medicine,
Hahnemann University and La Salle University Law School. She is
a doctor of osteopathic medicine, a board certified
psychiatrist, and a lawyer. She has also been a high school
teacher.
In 1998 the Clinton Administration brought obstruction of
justice charges against Dr. Battalino based on her having given
false testimony about a sexual relationship during a civil
case. Dr. Battalino pled guilty to the charge and is currently
serving a sentence of 6 months home detention.
I would note for the record that the committee sought the
permission of Chief Judge Edward Lodge of the U.S. District
Court for the District of Idaho for Dr. Battalino to be excused
from the home detention for her to appear today. We appreciate
Chief Judge Lodge's cooperation in granting that permission and
allowing Dr. Battalino to appear this morning. Dr. Battalino is
accompanied by her attorney, Mr. Curtis Clark.
Ms. Parsons, if you have a statement, please feel free to
share it with us.
STATEMENT OF PAM PARSONS, ATLANTA, GEORGIA
Ms. Parsons. Thank God I could finally say ``I'm guilty.''
When you commit perjury, you are the only one that truly knows
you have done it. It may take some time for you to get clear
with yourself. Anything that I ever denied about myself was
what created a spiraling journey through hell, and that day
that I got slapped into recognizing that, yes, there are things
that you pay consequences for, my life had a chance to turn
around.
You know, I enjoyed creating the opportunity to say that I
was good at some things in my life. I loved trophies and medals
and winning. But to turn around and take a look at that other
side of me took more guts than it ever took to win a ball game.
Now, I truly know what it is like to be a part of a team, and
when that team can't trust you, you have lost it all. And I
would rather be who I am today than to have continued coaching
with a lie.
I didn't have to come here today. But in fact, some level
of destiny, yes, I did. Because when you are in a leadership
position, no matter what it is you must tell the truth about,
you have got to search your soul and recognize what it means if
you don't--you don't, no matter what the price.
The legal system was very kind to me. The judge didn't want
to send me to jail. The reduction to 4 months was a blessing. I
picked up cigarette butts for 4 months in Lexington, Kentucky,
and I did it every day with a smile on my face to pay back
humanity for my ignorance in the seriousness about the law. I
served 5 years' probation, and in 1990 I was released. That is
a long time to still be talking about your past, and here it is
1998 and I am with you and I can almost not cry anymore.
Yes, after my probation I started my personal work, and I
took a look at what created my inability to tell the truth. In
1996 I went back and apologized to everyone that I could, as I
had reached a point that I could start being myself and embrace
all parts of me, that bad girl side, and the good girl side,
too. And today is my final apology before the Federal system to
say yes, it is important that we recognize that our whole
structure is based on the ability to tell the truth.
And my inability to not be able to do it may have been my
personal journey about my emotional self and my mental
capacities. Incapability to tell the truth is not an excuse. It
is your personal journey to get in touch with yourself. It is
not a punishment to serve time. It is a consequence. And there
were times that it wasn't easy for a person who had also been
on a very enjoyable ride in life, in a leadership role, to be
in the position that I was in, but the character of self is
developed when you can look at both sides and be okay about it.
So I came today to say very strongly that from a personal
experience level, perjury is one of the most valuable parts of
our system, and may we never look over the importance of
teaching all of us, as we learn through this experience of
ourselves and what has happened around us, that it is important
to understand the code of the law. Thank you.
Mr. Hyde. Thank you very much, Ms. Parsons.
Dr. Battalino.
STATEMENT OF BARBARA BATTALINO, LOS OSOS, CALIFORNIA
Ms. Battalino. Thank you. Chairman Hyde----
Mr. Hyde. Can you pull that mike a little closer, please?
Ms. Battalino. Chairman Hyde, ladies and gentlemen, members
of the Judiciary Committee and my fellow Americans, let me
begin by expressing my gratitude to the Judiciary Committee for
inviting me here today to share with you some of my thoughts
and feelings about the consequences of perjury and related
crimes.
I am neither a historian nor a constitutional scholar. I am
an American who worked hard to complete both a medical and law
degree, and have practiced in public and government service for
over 20 years, until I became a convicted felon in April of
1998. I am presently fulfilling the consequences imposed upon
me as a result of this conviction.
I have spent many hours of prayer, a great deal of soul
searching, and much mental deliberation in preparing this
statement. I believe this is and ever will be one of the most
important actions I do in my life. So many historical hearings,
speeches and decisions have occurred in this room. It is with
humility, reverence and awe that I sit in this Chamber sharing
my simple impressions with you today.
Before April 1998, I was like most of you watching or
listening to these proceedings. That is, I was a good, loyal,
upstanding U.S. citizen. I worked, voted, paid my taxes with
honesty and was respected by my profession, church and family.
What changed that? One simple lie, misstatement of fact, one
falsehood before a Federal magistrate, that is what.
The falsehood centered around my reticence to acknowledge
the one act of consensual oral sex which occurred between
myself and an unmarried male adult on Veterans Affairs
premises. A civil suit was filed, complicated by the male party
having secretly recorded phone conversations he and I had
during the months an intimate relationship developed. These
very tapes were instrumental in having the civil suit dismissed
in September of 1998 with no monetary award or settlement being
made by myself or the Veterans Affairs Administration.
So, how is it that I am a convicted felon? In early 1998 my
attorney received word that the Department of Justice planned
to indict me for perjury based on an untruthful response I gave
to a question regarding whether anything of a sexual nature had
occurred between myself and that individual on June 27, 1991.
Understanding that I would be subjecting myself to unwarranted
civil exposure if I told the truth, I justified in my own mind
that this deception was warranted in order to protect my
personal and professional self-interest. In an attempt to save
myself and my family any further embarrassment and/or financial
loss, I agreed to accept a negotiated disposition of the
criminal case.
There are three main points I would like to address
regarding today's issue, the consequences of perjury and
related crimes. One, honesty is the best policy, and necessary
to the preservation of the rule of law. Two, there are adverse
consequences if this principle is not adhered to. Three, when a
failure to adhere to the principle of truth is admitted and the
consequences are assumed, healing and restoration can occur.
I was wrong to lie before Judge Mikel that July 1995 date.
I merit punishment for breaking a fundamental law of God and
society. Making false and/or misleading statements, especially
under oath, and regardless of the subject matter, is wrong for
me and anyone who accepts the U.S. Constitution, Declaration of
Independence, and the rule of law upon which this great land of
ours is founded and persists.
On that July 1995 date, I stepped over the fine line
between truth and falsehood, and I can assure you once it is
crossed, it is impossible to return to the state of
truthfulness without repercussion or consequences.
Consequences of wrongdoing undoubtedly affect the
individual. My sentence will not end on February 27, 1999, when
the electronic monitoring device is removed from my ankle, nor
will it end on July 19, 1999 when my formal probationary period
is completed. In a very real sense, I am condemned to a life
sentence. I have lost my professional standing, my life as it
had been, and my cherished privacy. These consequences are
irrevocable.
The consequences of wrongdoing also interfere with the
lives of those near and dear. Family members must be exposed to
the sneers and jeers of coworkers and to the embarrassment of
reading unkind and sordid misrepresentations of the facts often
published by journalists who are more interested in
sensationalism than journalistic integrity. Sometimes the
consequences extend beyond one's ordinary geographic
boundaries, as in what happened to me. Public notoriety also
has been thrust upon me.
Admitted wrongdoing and acceptance of consequences can,
however, become the cornerstone for restoration and healing. I
can assure you that the pain and embarrassment felt when I
publicly apologized to Judge Mikel Williams and the judicial
system I had violated was far surpassed by the sense of relief
and the spirit of peace it afforded me. I had already made
peace with God, but we are societal beings, so we must be at
peace with our neighbors as well in order to have true and
complete restoration and healing. Once this occurs, life,
liberty and the pursuit of happiness can take on a new
dimension. I pray that I and others experiencing similar
conditions will be afforded this blessing.
Unfortunately sometimes agents of the government also fail
to fully honor the truth. In my case, Assistant U.S. Attorney
Jonathan Mitchell stepped over the line when he failed to file
the motion for a two-point downward departure from the Federal
sentencing guidelines which was part of our plea bargain
agreement. Mr. Mitchell crossed the line, and he will in some
way, some time, pay the consequences.
Because a President is not a king, he or she must abide by
the same laws as the rest of us. Whether Mr. Clinton is
impeached or not is in the hands of this committee, of the
House of Representatives and the U.S. Senate. But even if
justice does not prevail, Mr. Clinton's consequences will be
reserved for God and history to determine.
We all make mistakes in life, but common frailty does not
relieve us from our responsibility to uphold the rule of law.
This Nation must never let any person or people undermine the
rule of law. Without it, atrocities like slavery, genocide,
potential nuclear and biological warfare and oppression are
sure to rear their ugly heads once again. If liberty and
justice for all does not reign, we, like great civilizations
before us, will surely perish from the face of the Earth.
Thank you.
[The prepared statement of Ms. Battalino follows:]
Prepared Statement of Barbara Battalino, Los Osos, CA
Chairman Hyde, Ladies and Gentlemen Members of the Judiciary
Committee, and my Fellow Americans: Let me begin by expressing my
gratitude to the Judiciary Committee for inviting me here today to
share with you some of my thoughts and feelings about The Consequences
of Perjury and Related Crimes.
I am neither a historian nor a Constitutional scholar. I am an
American who worked hard to complete both a medical and law degree, and
have practiced in public and government service for over 20 years until
I became a convicted felon in April of 1998. I am presently fulfilling
the consequences imposed on me as a result of this conviction.
I have spent many hours of prayer, a great deal of soul searching,
and much mental deliberation in preparing this statement. I believe
this is and ever will be one of the most important actions I do in my
life. So many historical hearings, speeches and decisions have occurred
in this room. It is with humility, reverence and awe that I sit in this
chamber sharing my simple impressions with you today.
Before April 1998, I was like most of you watching or listening to
these proceedings. That is, I was a loyal, good, upstanding U.S.
citizen. I worked, paid my taxes with honesty, and was respected by my
profession, church and family. What changed that? One simple lie,
misstatement of fact, one falsehood before a federal magistrate--that's
what.
The falsehood centered around my reticence to acknowledge the one
act of consensual oral sex which occurred between myself and an
unmarried male adult on Veterans Affairs premises. A civil suit was
filed, complicated by the male party having secretly recorded phone
conversations he and I had during the months an intimate relationship
between us developed. These very tapes were instrumental in having the
civil suit dismissed in September of 1998, with no monetary award or
settlement being made by myself or the Veterans Affairs Administration.
So how is it I am a convicted felon? In early 1998 my attorney
received word that the U.S. Department of Justice planned to indict me
for perjury based upon an untruthful response I gave to a question
regarding whether anything of a sexual nature had occurred between
myself and that individual on June 27, 1991. Understanding that I would
be subjecting myself to unwarranted civil exposure if I told the truth,
I justified in my own mind that this deception was warranted in order
to protect my personal and professional self-interest. In an attempt to
save myself and my family any further embarrassment and/or financial
loss, I agreed to accept a negotiated disposition of the criminal case.
There are three main points I would like to address regarding
today's issue, The Consequences of Perjury and Related Crimes:
1. Honesty is the best policy, and necessary to the
preservation of the Rule of Law.
2. There are adverse consequences if this principle is not
adhered to.
3. When a failure to adhere to the principle of truth is
admitted and the consequences are assumed, healing and
restoration can occur.
I was wrong to lie before Judge Mikel that July 1995 date; I merit
punishment for breaking a fundamental law of God and society. Making
false and/or misleading statements, especially under oath and
regardless of the subject matter, is wrong for me and anyone who
accepts the U.S. Constitution, Declaration of Independence and the Rule
of Law upon which this great land of ours is founded and persists.
On that July 1995 date I stepped over the fine line between truth
and falsehood, and I can assure you once it is crossed, it is
impossible to return to the state of truthfulness without repercussion
or consequences.
Consequences of wrongdoing undoubtedly affect the individual. My
sentence will not end on February 27, 1999, when the electronic
monitoring device is removed from my ankle, nor will it end on July 19,
1999, when my formal probationary period is completed. In a very real
sense, I am condemned to a life sentence. I have lost my professional
standing, my life as it had been, and my cherished privacy--these
consequences are irrevocable.
The consequences of wrongdoing also interfere with the lives of
those near and dear. Family members must be exposed to the sneers and
jeers of co-workers, and to the embarrassment of reading unkind and
sordid misrepresentations of the facts often published by journalists
who are more interested in sensationalism than journalistic integrity.
Sometimes the consequences extend beyond one's ordinary geographic
boundaries, as in what happened to me. Pubic notoriety also has been
thrust upon me.
Admitted wrongdoing and acceptance of consequences can however,
become the cornerstone for restoration and healing. I can assure you
that the pain and embarrassment felt when I publicly apologized to
Judge Mikel and the judicial system I had violated was far surpassed by
the sense of relief, and the spirit of peace it afforded me. I had
already made peace with God, but we are societal beings so we must be
at peace with our neighbors as well in order to have true and complete
restoration and healing. Once this occurs life, liberty and the pursuit
of happiness can take on a new dimension. I pray that I and others
experiencing similar conditions will be afforded this blessing.
Unfortunately, sometimes agents of the government also fail to
fully honor the truth. In my case, Assistant U.S. Attorney Jonathan
Mitchell stepped over the line when he failed to file the motion for a
two-point downward departure from the federal sentencing guidelines
which was part of our plea bargain agreement. Mr. Mitchell crossed that
line, and will in some way, some time, pay the consequences.
Because a president is not a king, he or she must abide by the same
laws as the rest of us. Whether Mr. Clinton is impeached or not is in
the hands of this Committee, the House of Representatives and the U.S.
Senate. But even if justice does not prevail, Mr. Clinton's
consequences will be reserved for God and history to determine.
We all make mistakes in life. But, common frailty does not relieve
us from our responsibility to uphold the Rule of Law. Regardless, this
nation must never let any person or people undermine the Rule of Law.
Without it, atrocities like slavery, genocide, potential nuclear and
biological warfare and oppression are sure to surface their ugly heads
once again.
If liberty and justice for all does not reign, we--like great
civilizations before us--will surely perish from the face of the earth.
Mr. Hyde. Thank you very much.
Mr. McCollum.
Mr. McCollum. Thank you, Mr. Chairman.
Ms. Parsons, am I correct that you were basketball coach at
the University of South Carolina when the occasion of this
perjury that you were convicted of arose? Am I right about
that?
Ms. Parsons. No, I had resigned.
Mr. McCollum. You had resigned. But you had been
previously.
Ms. Parsons. I had been previously.
Mr. McCollum. Am I correct that the subject of your perjury
was consensual sex?
Ms. Parsons. No.
Mr. McCollum. What was the subject of the perjury, then?
Please clarify that.
Ms. Parsons. Well, it is really kind of funny. There is a
gay bar called Puss and Boots in Salt Lake City, Utah. It
wasn't easy to say. I have been there. That occurrence was 2
years after, then, the things that I was suing Sports
Illustrated for. It wasn't a pretty picture for me. I thought I
had many reasons for why I could say no, but it was an out-and-
out lie. I had been there.
Mr. McCollum. And that is what the perjury was about, about
whether you had been to that bar or not?
Ms. Parsons. Yes. Now, I went to the FBI about that.
Mr. McCollum. Let me ask you this question. You mentioned
leadership and you mentioned the fact that it bears a heavy
responsibility, and that is the reason I raised the basketball
coach question with you. You were in a position at one time of
leadership.
Ms. Parsons. Absolutely. I was also an athletic director.
Mr. McCollum. There you go. The President of the United
States is the top leader in this country. What kind of a
message do you think it sends if we conclude that he committed
perjury and do not impeach him and he gets away scot free? What
kind of message would that send, considering what you have been
through and what ordinary Americans can expect to go through,
presuming that perjury is found to be the case in a civil case?
Ms. Parsons. Please let me give this answer. I am ready.
Mixed message. We cannot raise our young people with mixed
messages. There are no secrets, but the discretion of when to
tell them things is what maturity is about. But secrecy doesn't
cut it when we are raising young children.
Mr. McCollum. Dr. Battalino, what is your thought about the
double standard we might be creating if we conclude the
President committed perjury and we don't impeach him, with
respect to people such as yourself who are convicted and sent
to jail or put in house arrest for perjury regarding consensual
sex, in the Federal system? Is this fair?
Ms. Battalino. I believe that we as a people, as a country,
must not give the impression to our citizens, to our young
people, to the world that we are indeed a country that does not
take seriously the rule of law and liberty and justice for all.
Mr. McCollum. And is it wrong to have the President of the
United States, the highest ranking law enforcement officer of
this country, walk away from a situation which would be
presumably very similar to yours, if indeed we conclude that he
committed perjury involving consensual sex? Would that be wrong
and the wrong message?
Ms. Battalino. I think it would be a very wrong message,
and I would hope that that is not what indeed occurs. At the
same time, I do believe that history will ultimately determine
whether or not our country remains the country of justice and
liberty for all.
Mr. McCollum. Thank you very much. Thank you, Mr. Chairman.
Mr. Hyde. Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I will reserve my
time, please.
Mr. Hyde. Mr. Frank.
Mr. Frank. Mr. Chairman, I want to express my admiration
for the witnesses for coming forward. It is not easy to come
forward in a situation like this.
Ms. Parsons, I understand particularly your reticence over
time to talk about some aspects of your personal life. It is a
reticence I share, and I agree with you that dealing with it
and getting it over with is a very healthy thing.
What I want to talk about is not directly relevant to these
two witnesses, though, because I want to talk about the
difference between the accusations against President Clinton
and the cases of these witnesses. I note that the chairman
began by describing this as a general oversight hearing which
we just happen to be having at this time. I guess it is kind of
a dead time, early December, and oversight on perjury in
general just happened to fill an empty agenda.
But not everybody has stuck to the script that this was
simply an abstract exercise in discussing perjury. Clearly this
is part of--it is actually an interesting hearing. I have never
seen a hearing before that was part of the whip operation of
one of the two parties. This is an effort to increase votes on
the floor because they are in a little bit of trouble. But that
is okay. We have a lot of discretion.
But it does seem to me we ought to talk about the
difference. With regard to the accusations against the
President, the first go to the Paula Jones case, and there we
have a very real difference between the President's situation
and that of the two witnesses here.
In both cases they have very fairly acknowledged and in a
very admirable way, and I think they deserve a great deal of
credit for the openness and the straightforwardness with which
they discussed this. They were accused of perjury on matters
which were central to the case at issue, the question of
whether or not the patient had been mistreated, the question of
a sexual relationship for one of the coaches. They were really
quite central.
In the case of the Paula Jones situation, the questions
were entirely peripheral, ultimately ruled not to be directly
relevant, and this troubles me in this case where you are
talking about general principles. We have a situation in this
country where almost anybody can sue almost anybody else. My
Republican colleagues have tried to restrict that, and I have
joined with them more often than many of my Democratic
colleagues. I think we should rein in excessive litigiousness.
But we have this problem. People have said sometimes,
``Well, you've been sued. If you were wrong, why don't you just
resist it?'' Well, one of the reasons is that we have in this
country virtually unlimited discovery. Once you are sued, you
are then subject to a great deal of investigation. I am
troubled by a situation in which you can have people sued, even
if there is an expectation that the ultimate suit will not be
successful, and people then use the fact of the suit to use
broad discovery.
And here is the problem I have in the situation involving
the President in the Paula Jones case. I believe that the
clearly consensual relationship he had with Ms. Lewinsky,
initiated by Ms. Lewinsky, improper, wrong of the President to
engage in but clearly, indisputably consensual, was in fact
irrelevant in every way to the Jones situation. I think that
was what was ultimately decided.
If you say that once you are sued, no matter how
meritorious the lawsuit, you are then subject to unlimited
discovery even on subjects not relevant and material to the
case, and if you do not confess the most intimate details of
your life in that situation, even if they were not relevant to
the case, you are subject to perjury, we erode privacy.
That is why I think there is a great deal of reluctance on
the part even of some of my Republican colleagues to proceed
against the President in the Jones case, because the precedent
you set frankly goes contrary to what I think is a sensible
thrust on the part of many of the Republicans, namely to limit
the extent to which litigation can be used as a weapon, not to
solve a particular claim but as a weapon in general. And if you
say unlimited discovery and perjury for any aspect of those
questions asked, even if they are later ruled nonmaterial, you
are greatly broadening that.
Then we have the perjury before the grand jury. Now the
grand jury is a different story. Obviously it was somewhat
material, as that was the only reason they had it. The problem
here is that for--from the Republican standpoint, there is no
way that anybody has been able to prove that the President
committed perjury.
And my time is starting to run out. Let me give one example
of how absolutely insignificant those allegations are, as well
as being difficult to prove.
There are three charges in Mr. Starr's report that the
President perjured himself before the grand jury. The first is
that in August of 1998 he remembered the sexual activity as
having begun in February of 1996 and she said it was November
of 1995. That is, A, very easy to understand how someone 2-plus
years later might have forgotten which month it was. Two, it
seems to me very hard to prove.
And, three, the notion that you are going to impeach the
President because he said sexual activity which he acknowledged
happened and he acknowledged was improper began in February
rather than November is silly, especially since nothing turns
on it. She reached no magic age in between then.
Mr. Starr says, ``Oh, well, she stopped being an intern.
She was an intern in November and she was not an intern in
February. That's why the President lied.'' She did not go from
being an intern to being the Under Secretary of Health and
Human Services. She went from being a young intern to being a
young, fairly insignificant employee. Nothing turned on that.
The notion that you would impeach the President of the
United States because more than 2 years after a sexual
encounter which he admitted to the grand jury when he was
before the grand jury and no other target would have been--you
would impeach him in part because he said he remembered it as
having been 2 years and 3 months previous or 2 years and 6
months, and in fact it was 2 years and 8 months, there is a
very real difference between, it seems to me, that accusation
and the very central issues that these two witnesses have both
fairly decided.
Mr. Hyde. Mr. Frank, your time for questions has elapsed.
Mr. Gekas.
Mr. Gekas. I thank the Chair. The gentleman from
Massachusetts has articulated the problem that is before this
Judiciary Committee. He scoffs at and finds inconsequential
some of the items which have been recounted as possible
statements that would be perjurious, either before the grand
jury or before the Jones trial or deposition. What he is saying
is there are some, like him, believe they are so
inconsequential, even though they are lies before a grand jury,
under oath, that they should be discounted automatically.
There are some that feel perhaps a pattern has evolved from
all these, what he calls inconsequential, I am using a term
that he may not adopt but at least that is the impression I
get, that he feels that they are inconsequential, yet a pattern
has existed both in the Jones trial and in grand jury that
indicates to some that a finding could be made that perjury was
indeed committed. And that is what we have to decide, not
whether the President is guilty of perjury or innocent of
perjury, but whether or not there is enough evidence
cumulatively from which Barney could determine there was no
perjury committed, or someone of some other point of view could
find that yes, indeed, there is some evidence from which a jury
could find that perjury was committed.
Is there probable cause, in other words, on the part of
this committee to be able to make a finding that an article of
impeachment on perjury should lie? That is the question. And I
think that the gentleman from Massachusetts has confirmed what
our duty is here. He finds in drawing some conclusions that
nothing has occurred. Others, looking at it as a pattern and
looking at other questions that surround the testimony of the
President in the Paula Jones depositions and in grand jury,
could find otherwise.
And that is what our duty is, to determine whether there is
enough evidence, sufficient and credible, to be able to present
to the trier of fact. That is the only thing before us. And we
may differ on that in the final vote that may be taken on a
possible articles of impeachment.
I would like to ask the witness Battalino just one
question. You had a complaint about a prosecutor who may not
have fulfilled a plea bargain with you, et cetera. Do you
believe that his action in any way, as sour as you think it
was, do you think that that in any way mitigates the perjury
that you committed?
Ms. Battalino. No, sir, not at all.
Mr. Gekas. I have no further questions.
Ms. Battalino. The point I was trying to make, if I may
make it, the point I was trying to make is that truthfulness
must be in every action, in every contract that we make with
each other, as individuals and as a society.
Mr. Gekas. Thank you for the testimony.
Mr. Hyde. The gentleman from New York, the distinguished--
--
Mr. Gekas. I yield back the balance of my time.
Mr. Hyde. I just took it away from you.
Mr. Gekas. Well, I yield it.
Mr. Hyde. Thank you. It is a pleasure to recognize the
distinguished Senator-elect from the great State of New York,
Mr. Schumer.
Mr. Schumer. Thank you, Mr. Chairman.
Mr. Chairman, as I sit here today, I am convinced this
committee needs help. We have before us 11 witnesses who share
practically nothing in common. We are given 5 minutes to ask
them questions and glean insight into the most serious matter
our committee can consider, that of passing articles of
impeachment to remove a duly-elected President from office.
Later today we will issue new subpoenas on unrelated matters,
again to impeach the President.
We are hurtling headlong into a constitutional crisis which
the American people in their wisdom have begged us to rein in
and reject. All across the political spectrum, including
mainstream Republicans in your own caucus, people know that the
President's actions are not impeachable and that these
proceedings should end, yet here we are moving closer and
closer to impeachment.
Why? Because, in my judgment, there is one small segment on
the far right who have lost all objectivity and are determined
to impeach the President at all costs. Their hatred of the
President exceeds their caring about this country and its
people. And that small segment, which would represent a
minority view anywhere else in America, dominates this
committee. That is why we need help.
We have a new Speaker of the House. This is his first
crucial test. I guess I am making a plea here, and that is to
Mr. Livingston, to step in and take control of this runaway
train before we go over a cliff. The new Speaker-elect should
put an end to the hearings. He should put an end to secret
depositions. He should allow a motion to censure or a motion to
rebuke to be debated and voted on on the floor of the House. In
my judgment, at least, he should join with Democrats and other
Republicans to sponsor that notion. He should lead the House
back to the sensible middle.
Mr. Chairman, I believe you have tried to be fair and I
don't envy your task. But these new hearings, these new
subpoenas wave a red flag that common sense and common wisdom
are not welcome here. Mr. Livingston, this may be the first and
most important test you will ever face as Speaker. Lead us out
of this abyss.
I yield back my time.
Mr. Hyde. The gentleman from North Carolina, Mr. Coble.
Mr. Coble. I thank the chairman. Good to have all of you
with us this morning. Thank you for being here.
Dr. Battalino, you indicated that the person with whom you
had your sexual involvement was unmarried.
Ms. Battalino. Yes.
Mr. Coble. You did not divulge your marital status at the
time.
Ms. Battalino. I was unmarried also, sir.
Mr. Coble. So you were both unmarried?
Ms. Battalino. Yes.
Mr. Coble. Dr. Battalino and Ms. Parsons, did either of you
lose your jobs or positions as a result of your convictions?
Ms. Parsons. No.
Ms. Battalino. I did.
Mr. Coble. You did, doctor. And Ms. Parsons, you had
previously resigned, is that the----
Ms. Parsons. Yes.
Ms. Battalino. Not only did I lose my job, sir, but I also
have lost my professional standing as a physician and I can no
longer pursue my legal profession, either.
Mr. Coble. You are reading my mind. My next question was
going to be if either of you have been forced to surrender your
respective licenses.
Ms. Battalino. Yes, sir, I have.
Mr. Coble. Both medical and law?
Ms. Battalino. Yes.
Mr. Coble. How about you, Ms. Parsons?
Ms. Parsons. I have never tried to use them. I don't know.
Mr. Coble. Folks, we were visited some days ago by the
country's best constitutional and historical and legal
scholars, the best in the land, and for the most part that was
a good day, I think, Mr. Chairman. One or two of those
witnesses laced his testimony with a good deal of arrogance,
but I guess scholars and outstanding people have that latitude.
But I think that notwithstanding the fact that--on balance it
was a good day.
But that notwithstanding, ladies, I believe that your
testimony today describes the issue at hand more succinctly and
with more gravity than did the illuminating information that we
received from that battery of scholars several days ago, and I
thank you for being here.
Mr. Chairman, I have no further questions.
Mr. Hyde. The gentleman from Virginia, Mr. Boucher.
Mr. Boucher. Thank you, Mr. Chairman. In the interest of
time, I am going to reserve my questions for the subsequent
panels.
Mr. Hyde. Thank you.
The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman. I, too, would like to
thank the witnesses for their testimony this morning. Quite
frankly, I am not sure that we have heard more candid, more
heartfelt, more trenchant testimony than what we have heard
from you all today, and I appreciate the courage that it took
to be here and the humility that it took to admit that you were
wrong.
It seems to me that there are similar points that you both
made, and you also have some similarity in that you were both
government employees, for example, and that you both have
suffered severe consequences.
Dr. Battalino, in your testimony you said, ``I was wrong to
lie. I merit punishment for breaking a fundamental law of God
and society. Making false and/or misleading statements,
especially under oath, and regardless of the subject matter, is
wrong for me and anyone who accepts the U.S. Constitution,
Declaration of Independence, and the rule of law upon which
this great land of ours is founded.''
And Ms. Parsons, you mentioned the consequences for your
actions, and I think you said in so many words it was a lot
tougher to tell the truth than it was to win a ball game.
And Dr. Battalino, you also mentioned that common frailty
does not relieve us from our responsibility to uphold the rule
of law. This Nation must never let any person or people
undermine the rule of law.
And Ms. Parsons, you spoke, I think very persuasively,
about the danger of undermining what you called a code of law,
which I think is the same thing, and reinforces I think the
importance of it.
So let me address questions to both of you, if I may, and
the first one is, do you think that we should have different
standards that apply to high level government officials, and
apply different standards to them than we have seen applied to
yourself? In effect, should we have exceptions to the rule of
law or should we not? And Dr. Battalino, if you want to reply
first.
Ms. Battalino. I think we should not. I think that this
country was grounded on liberty and justice for all, and
therefore no citizens of the United States, regardless of rank,
financial status, any reasons, should be treated differently or
separately from other citizens.
Mr. Smith. Ms. Parsons, if you want to follow up on that,
and also maybe address the larger question that if we should
mistakenly apply different standards to different individuals
depending on their level of employment, what does that do as
far as the American people's respect for our judicial or for
our justice system?
Ms. Parsons. This is a toughie. With more responsibility,
and the more you are in the eye of the public and taking
responsibility for this huge circle that you are creating, how
much does it affect all of them when you lie? I know this. I
can't get past all the ripples of what I created yet, and I was
just a coach in a small State. I have some feeling that the
level of position you hold makes, at least in my heart, a
feeling that there is more responsibility to make sure that you
do tell the truth.
Mr. Smith. So you think there is perhaps even a higher
standard to be applied if one holds a high-level office?
Ms. Parsons. I hope so. If we have picked him out to be a
leader.
Mr. Smith. And you agree with that, Dr. Battalino?
Ms. Battalino. Absolutely.
Mr. Smith. The last question is this, that if we do apply
the same standards or perhaps even higher standards, which
should the solution be for this committee that is perhaps
dealing with the highest level of individual? Should the
individual----
Ms. Parsons. Isn't this incredible, that we are in this
position, first of all? Because I remember when I was in that
position of hearsay or whatever happening around and about me.
When our President travels to Japan and we hear from the stands
things about what is happening related to those things, it is
not cool.
And I think that the one thing is that there are certain
things that, though, need to be found out behind closed doors,
just like we have certain military secrets we don't want out to
the rest of the world. Because of the way that it makes us
look, you don't give things out. I don't know if those words
are correct, treason or whatever you do when you give things
you shouldn't.
There is a time to find out certain information quickly and
as expediently as possible, so that you can get on with the
rest of the business of life. But if there is something that is
decaying away, that is corrosive to the morale of the whole
environment, then something does have to be done, and all I can
say is as expediently as possible.
Mr. Smith. Dr. Battalino, real quickly, would you apply the
same sanctions to the President that have been applied to you?
Ms. Battalino. Absolutely.
Mr. Smith. Thank you both. Thank you, Mr. Chairman.
Mr. Hyde. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you.
Ms. Parsons, were you tried, or were you tried and did you
have a verdict, or did you plead guilty?
Ms. Parsons. I pleaded guilty.
Mr. Nadler. Okay. But before that, you were aware that you
had the option of going to trial?
Ms. Parsons. Yes.
Mr. Nadler. And were you given to understand that if you
went to trial, your attorney could cross-examine the witnesses
against you?
Ms. Parsons. It never went that far. It wasn't necessary.
Mr. Nadler. No, but did you understand that if you went to
trial, that that is what would happen?
Ms. Parsons. Back then did I understand that, or today?
Let's see. I don't remember about then, but what you are
telling me now is they could. I don't know.
Mr. Nadler. Okay. Mr. Chairman, the point I want to make is
several-fold, and I am not going to ask any further questions.
Number one, Ms. Parsons, Dr. Battalino, had they gone to
trial, would of course have had the rights any defendant has;
namely, that the witnesses against them would have had to come
forward and testify; they would have had the opportunity to
cross-examine those witnesses and to call witnesses on their
own behalf.
That is not what is happening in this committee. There has
been no witness called in front of this committee against the
President. Mr. Starr is not a witness. He has no personal
knowledge of anything that happened. He wasn't there, he didn't
see anything, he didn't even depose the actual witnesses. Those
witnesses haven't been called, and it is elementary in this
country that if you are going to charge someone with something,
you produce the witnesses to testify against them. And it is a
failure of the Chairman of this committee that we are going to
consider voting impeachment, having heard no witnesses
whatsoever against the President, and nothing, nothing can
eliminate that failure, unless those witnesses are called.
Now, I do not want to say that I want those witnesses
called. I don't want them called. This entire thing should be
dismissed, because nothing that was alleged, even if true, is
impeachable. But if you want to prosecute the President to an
impeachment, it is the responsibility of the prosecution to
prove the guilt of the accused, not the responsibility of the
accused to prove his innocence. And those 81 questions which
were an attempt to convict, have the President convict himself
out of his own mouth to avoid the necessity of bringing
witnesses, were frankly unworthy of the committee, unworthy of
the Congress, and failed in its purpose.
The second point I want to make is in response to something
the distinguished gentleman from Pennsylvania said, when he
said that it is our job to determine whether there is enough
evidence to send to trial, to send the case to the trier of
fact, that we have to see whether there is probable cause. The
analogy obviously is that our role is similar to the role of
the grand jury. Well, the fact is, it is not.
That is an analogy often made, simply because impeachment
under our system is a two-step process. But the fact is there
is a great difference between an indictment and a vote of
impeachment. The former Chief Judge of the Court of Appeals of
the State of New York, in his famous statement, said any good
prosecutor can get a grand jury to indict a ham sandwich
because probable cause is not much of a requirement, it is a
low threshold.
For us to send, for the House of Representatives to impeach
a President and subject the country to the trauma of a 4- or 6-
or 7-month trial in the Senate is one heck of a thing, is one
heck of a thing to do, and we should not do it simply on
probable cause. We should use the same standard that I believe
they used in the Nixon case; namely, clear and convincing
evidence, not guilt beyond a reasonable doubt but at least
clear and convincing evidence, and that has not been shown. It
has not been shown that the President committed perjury by
clear and convincing evidence or any persuasive evidence at
all.
To adopt a contrary view, to adopt Mr. Gekas's view, would
be to say that the role of this committee of the House is a
mere transmission belt or rubber stamp for the special
prosecutor. The special prosecutor laid out evidence of the
President committing an impeachable offense. If all we need is
probable cause, what do we need the House for? We have his
referral; send it over to the Senate. What do we need hearings
for?
Well, of course we haven't had hearings, not hearings of
witnesses, not real hearings, we have only had shams. So maybe
that is the belief of this committee, that this is a sham
proceeding, that all we need is to act as a transmission belt
for the special prosecutor and needn't establish anything on
our own.
As of today, we have had no witnesses. To repeat, we have
had no witnesses, no opportunity to cross-examine those
witnesses. Fundamental fairness, elementary due process, we
have all paid lip service to. At least since the Magna Carta,
we demand that before we vote on impeachment, we at least
follow the normal processes, and that we find clear and
convincing evidence before we send anything to the Senate.
Unlike what would have been afforded, the right that would have
been afforded to these two witnesses or to any other criminal
defendants in this country, these rights have not been afforded
in this case, these procedures have not been followed, and it
is shameful.
I yield back the balance of my time.
Mr. Hyde. Thank you.
The gentleman from California, Mr. Gallegly.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Dr. Battalino and Ms. Parsons, thank you for being here
today. During this whole process, I have thought so many times
what a difficult job we have sitting up on this side of the
dais. This is certainly without question the most uncomfortable
series of hearings that I have had to sit through in my years
sitting on this Judiciary Committee. But looking at the two of
you out there today, I certainly don't envy you sitting on the
other side, and I just want to thank you very much for coming
forward to this committee today and baring your soul and
expressing things that I know are difficult. You must be here
for a reason that you think is for the betterment of this
Nation moving ahead.
Dr. Battalino and Ms. Parsons, during the time that you
were going through your cases, did anyone at the Department of
Justice or anyone else, for that matter, ever suggest to you
that you could not or would not be prosecuted because you
testified falsely in a civil case as opposed to a criminal
case? Dr. Battalino.
Ms. Battalino. No, sir.
Mr. Gallegly. Ms. Parsons.
Ms. Parsons. No one said that to me directly.
Mr. Gallegly. Dr. Battalino, I understand that your
prosecution by the Department of Justice took place just in
1998, is that correct?
Ms. Battalino. Yes, uh-huh, correct.
Mr. Gallegly. And that would also be during the time that
President Clinton was in charge of the Justice Department; is
that also correct?
Ms. Battalino. Yes, that is correct.
Mr. Gallegly. Ms. Parsons, maybe we could focus just for a
second on the issue which you touched on in your testimony. In
your position of leadership when you were a former college
basketball coach, what do you feel, personally feel, is the
impact of lack of honesty or lack of integrity by persons in
leadership roles on the young people that you are so familiar
with as a coach?
Ms. Parsons. You affect them for the rest of your life. No
one ever gets over what you have done. It gets easier. They are
looking to you, in how you are experiencing life, as they are
stepping along too. It is a masterful position and requires
tremendous maturity.
Mr. Gallegly. Ms. Parsons, Dr. Battalino, thank you for
being here.
I yield back, Mr. Chairman.
Mr. Hyde. I thank the gentleman.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, the question before us is not whether or not
perjury is a crime or whether it applies to sex or whether it
applies in civil cases; the question before us is whether or
not we should vote to impeach the President. That question
should be resolved in a fair and orderly process, but our
process has not been fair or orderly. We have not followed the
orderly process that was outlined in the Democratic alternative
where we said we should first determine which allegations, even
if true, could constitute impeachable offenses.
If we followed the directions that we have had from many
constitutional scholars, of course we would have concluded that
none of the allegations before us constitute impeachable
offenses. But if any do, then we should get the facts on those
allegations and determine whether or not the allegations were
true, and if any of those allegations were true, we would vote
to decide--we would have a vote to determine whether or not
those impeachable offenses that we determined that the
President committed were substantial enough to warrant his
removal from office.
Instead of that orderly process, Mr. Chairman, we received
a referral and released it without even reading it. Mr. Starr
has now said that it was not his responsibility, that he is not
responsible for the release, and absolved himself of blame for
the fact that sexually explicit material was placed on the
Internet. We followed that by weeks of determination of what
other sexually explicit material should get on the Internet. We
followed an arbitrary process where we would make up the rules
as we went along.
The President was sent questions. That was without
consultation or notice. Most of us found out that the questions
had been sent when the media notified us. We were at the same
time denied the opportunity to take depositions of witnesses
that we wanted.
Mr. Chairman, without consultation, a deadline was set for
the President to respond to those questions. We then had the
spectacle of watching the prosecutor try to testify as a fact
witness, and the last time we were here, the chairman
admonished me for calling him a prosecutor. The chairman said
that Mr. Starr was an independent, independent counsel, and not
a prosecutor. Of course, the very next day his ethics advisor
quit because he was being too much of an advocate.
Mr. Chairman, there is a pronouncement without consultation
that all of the hearsay, rumor and innuendo would be presumed
to be true unless the President came up with proof that it was
not true. That is without even a statement of what the
allegations have been, and is a virtual presumption of guilt,
and it is in the midst of an expansion of our scope, without
notice, again.
Mr. Chairman, I think just in closing that we should focus
on our constitutional responsibility, determine whether or not
we have impeachable offenses before us, even if they are true,
and then determine what to do if they are impeachable offenses
after we determine that they be true, if we ignore the advice
that we received from many constitutional scholars who have
told us that none of these allegations are impeachable
offenses. That process can be completed in a swift matter of
time. It should not take long.
But here we are, we don't even have the allegations before
us that we are going to be pursuing, and the referral came in
early September. When we have the allegations, then we can go
into fact-finding and can bring this to a conclusion. I don't
believe that thus far the proceeding has been helpful in
helping us resolve that question. Thank you.
Mr. Smith [presiding]. The gentleman from Florida, Mr.
Canady.
Mr. Canady. Thank you, Mr. Chairman.
I want to thank both witnesses for being with us here
today. I know it is not easy to appear in a proceeding such as
this with these circumstances, and we are very grateful for
your testimony. I think your testimony is quite relevant to the
core issue that the committee confronts, and as I have listened
to your testimony, it has reminded me of statements that
various Members of the Judiciary Committee made during the
course of the committee's consideration of impeachment articles
with respect to Richard Nixon.
I was struck particularly by the parallel with comments
that Mr. Brooks made at that time. Now, Mr. Brooks wasn't
chairman of the committee then, of course, Mr. Rodino was. Mr.
Brooks subsequently served as chairman of this committee during
my first term as a Member of the Congress and a member of this
committee, and Mr. Brooks, the gentleman from Texas, was our
chairman.
In the Nixon matter, he said this: ``No man in America can
be above the law. It is our duty to establish now that evidence
of specific statutory crimes and constitutional violations by
the President of the United States will subject all Presidents
now and in the future to punishment.''
Mr. Brooks went on to say, ``No President is exempt under
our U.S. Constitution and the laws of the United States from
accountability for personal misdeeds, any more than he is for
official misdeeds.''
I think that we on this committee, in our effort to fairly
evaluate the President's activities, must show the American
people that all men are treated equally under the law.
I would like to ask you, both the witnesses, to tell us
whether you would agree with the sentiments expressed by Mr.
Brooks during the Nixon inquiry. Dr. Battalino.
Ms. Battalino. I was an adult during the Nixon impeachment
hearings, and I was very impressed with the manner in which the
committee conducted the proceedings, so I would certainly agree
with the statements that you have made that Mr. Brooks made. I
would hope that this committee will have the same unbiased
approach to dealing with the justice and fairness for all
issue.
Mr. Canady. Ms. Parsons.
Ms. Parsons. It is another one of these questions that--I
remember when I was serving time, people would ask me, ``Do you
feel like you should have served time if President Nixon
didn't?'' I couldn't necessarily relate, because I don't
compare oranges and apples, but I know this: that we have
certain basic things that must be addressed with all of us, no
matter what position we are in at any given time. It is
unfortunate if you are in a high position of authority and in
the public eye, but it might come up at that time, and it still
has to be dealt with.
Mr. Canady. Thank you. I would like to now respond to some
of the points that have been made which I think are totally
without merit.
The contention has been made that essentially this
committee has the responsibility to conduct a proceeding in the
nature of a criminal court trial. That couldn't be further from
the truth. The Constitution gives the sole power to try
impeachment cases to the U.S. Senate. Now, we do have a
responsibility to make certain that we act on a solid basis. We
should not move forward with articles of impeachment on the
basis of insubstantial evidence. I think all of us agree on
that.
The fact of the matter is that we have a mountain of sworn
testimony that points to the conclusion that the President is
guilty of various offenses, including lying under oath. There
are those who believe that that evidence is unreliable, that
the witnesses were not telling the truth. They have an
opportunity to request that those key witnesses be called
before the committee. I don't sense that they are really
interested in doing that. I don't think they want to do that.
Because the real defense that is being waged here is not
that the facts are untrue but that it really doesn't matter. It
is what has been referred to as the ``so what'' defense. Even
if the President did all of these things, it doesn't really
matter. We have no real recourse to hold him accountable under
the Constitution.
Well, I have to say that I disagree with that perspective.
I think that is inconsistent with the precedents and the
history of the impeachment power, and I hope that that
viewpoint will not prevail.
I thank the witnesses again.
Mr. Hyde. The gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. I adopt as if it were my
own the statement of my colleague, Mr. Scott, from Virginia. I
have no questions of these two witnesses, and I yield back the
balance of my time.
Mr. Hyde. I thank the gentleman.
Mr. Inglis, the gentleman from South Carolina.
Mr. Inglis. Thank you, Mr. Chairman.
Congratulations to our two witnesses. You have done what
nobody else has been able to do. You have just thrown a wrench
in the White House spin machine. It is incredible. For the
first time since this whole thing began, you have single-
handedly done it. Have you noticed that nobody on the other
side has asked you a single question? And particularly, that
nobody has yet attacked you?
Now, there is time left. We will see. But the thing that
you have accomplished here that no one else has accomplished is
to stop the attack on the attacker. That is all the White House
has done in this whole proceeding. That is all our friends on
the other side have done, is attack the attacker. It goes along
with the defense that Mr. Canady just mentioned, the ``so
what'' defense, but the way that you lead into that ``so what''
defense is to begin by attacking the attacker. So
congratulations to both of you. You have shut them down for a
matter of minutes now. We do have time left, we will see.
But it occurs to me that what you have also done is you
have shifted the focus. You see, the White House spin machine
likes to talk about vast right-wing conspiracies, and they like
to talk about procedural fairness, and they are real big on
that. But the thing that eludes them is that there is another
aspect of fairness, and that is the equal application of the
law.
Dr. Battalino, I would like to ask you, you were in law
school as I was years ago; in fact, Dr. Steve Saltzburg may not
remember this, but I was one of his students in evidence. So I
will ask you to do what probably he asked Mr. Inglis to do at
UVA Law School: Distinguish the case, Dr. Battalino, between
your situation and President Clinton's.
Ms. Battalino. Well, unfortunately, I think there are very
many similarities, so in some respects I can empathize with Mr.
Clinton's position and his embarrassment and avoidance of
discussing a private sexual encounter, especially consensual,
and also the fact that there were tape recordings. Unlike Mr.
Clinton, the gentleman with whom I had a relationship did the
taping of the conversations that we had.
I think too the most important similarity is that initially
there is a hesitancy, and there appears to continue to be a
hesitancy on Mr. Clinton's part to assume the full
responsibility of the fact that lying, whether it be about sex
or about stealing or about anything, is wrong, and we cannot
permit the concept that certain lies are okay and other lies
are not acceptable. That is destructive to our youth, it is
destructive to our Nation as a whole, and I believe that in the
depths of my soul. If there was anything that I could change,
it would be that day never to have lied.
Mr. Inglis. Let me ask you this. Do you see any
distinguishing facts between your case and the President's?
Ms. Battalino. Well, certainly I was not able to have the
great availability of great legal minds that the President has.
In addition, I did not have the financial backing or ability to
pursue going to a trial, and that is the main reason why I plea
bargained.
Mr. Inglis. So in other words, other than the circumstances
of your own situation of lacking the power of the presidency,
the wealth of the presidency in terms of the ability to have
lawyers, you don't see any distinguishing facts between your
situation and his?
Ms. Battalino. Well, I certainly see the other distinction
being that I was in a sense able to acknowledge that I must
assume full responsibility for my actions; that it is not right
to tell a lie. And by simply suggesting that once you apologize
for the lie, it just should go away and we should move on, that
is not the way our country is based. That is not the way our
society is based. There do have to be consequences.
And I would not in any way attempt to describe what those
consequences should be. That is way beyond my level of
expertise or condition. But I do say that there should be
consequences, and that the consequences have to be significant
and serious consequences.
Mr. Hyde. The gentleman's time has expired.
The gentlewoman from California, Ms. Lofgren.
Ms. Lofgren. Mr. Chairman, I think my colleague, Mr. Scott,
spoke well and really articulated what is on my mind. When last
the committee met, I mentioned that the entire issue before us
was one of the most embarrassing segments of American history,
and this hearing certainly does not change that. In fact, I
wish that I had followed Mr. Berman's example and not come here
at all today.
It is not the fault of the witnesses, who I credit for
coming forward and being honest and going through their own
embarrassment. It is not their fault that we are sitting here
asking these two ladies questions that have nothing to do with
the constitutional issue that faces this committee and the
country.
I am not going to ask them any questions, because I don't
know that they have insight into whether the President's
behavior matches that envisioned by George Mason and James
Madison when they drafted the impeachment provision in the
Constitution. I have no questions for the witness. I have
questions for the committee on why we are sitting here when we
do actually have some judges waiting in the audience who may
actually have points of law to share with us, and I would yield
back the balance of my time.
Mr. Hyde. I thank the gentlelady. I think I will speak out
of turn to answer the gentlelady's question. Why are we sitting
here?
Well, I can give you some reasons why we are sitting here.
We are exploring the double standard. We are exploring whether
there is one rule of law for the powerful, for the rulers, and
another one for the ruled. We still believe this is a country
and a nation governed by laws and not men, and we are exploring
whether there are different consequences for different people
in our government. That may be a sterile inquiry for the
gentlelady, but I think it is important.
Now, we have been criticized by the distinguished gentleman
from New York for not producing witnesses to cross-examine, as
though this is where the adjudicatory function is, and I guess
the Senate is left for the accusatory function. It is the other
way around. We accuse; they adjudicate.
But I will say this. We have not called a lot of witnesses
because you have pled nolo contendere. I have a quote here from
the distinguished gentleman, he is not here now, Mr. Schumer:
``It is clear that the President lied when he testified before
the grand jury, not to cover a crime, but to cover embarrassing
personal behavior. To me, Mr. Chairman, it is clear the
President lied when he testified before the grand jury.''
Another ember of this committee, not here: ``The President
had an affair. He lied about it. He didn't want anybody to know
about it. Does anyone reasonably believe that amounts to
subversion of government?''
Well, that is what we are here to discuss.
So you have conceded on the facts; you never produced
witnesses to question the facts. It is all process and
procedure, and personal attacks on the chairman. I just think
that is interesting.
But the one person in this country that is sworn, as the
chief law enforcement officer, who is sworn to take care that
the laws are faithfully executed, if he perjures himself, what
are the consequences of that perjury? You would say none. Maybe
a rebuke not provided for in the Constitution or anywhere else.
Some of us think it should be stronger than that. That is what
we are discussing here.
Mr. Nadler. Mr. Chairman, point of personal privilege.
Mr. Hyde. No, sir. I let you wander on----
Mr. Nadler. Mr. Chairman, it is a point of personal
privilege.
Mr. Hyde. All right. What is your point?
Mr. Nadler. My point, Mr. Chairman, is that--it is twofold.
One, some members of this committee on both sides of the aisle
may have concluded the President lied; some may even have
concluded he lied under oath. Some have not so concluded, and
we have not pleaded nolo contendere. I have not concluded that
he committed perjury. I have seen no proof that he committed
perjury, and that is very much at issue.
Mr. Hyde. Well, have lunch with Mr. Schumer. Maybe he will
inform you.
Mr. Nadler. The second point, he is entitled to his opinion
and I am entitled to mine, and the President is entitled to the
same due process as everybody else. It has been repeatedly
stated, and you just said, that what we are saying or what some
of us are saying is that it doesn't matter, that perjury isn't
very important. I think what some of us are saying is that
perjury, even though not impeachable, is prosecutable, and that
is what upholds the rule of law.
Mr. Hyde. Well, thank you for informing me of that. That
comes as a surprise to me that that is your position.
The fact is, the referral from Judge Starr has a lot of
information under oath, grand jury testimony, sworn statements,
depositions, and you have yet to provide a witness to
contradict the factual assertions in the referral. We wait with
baited breath for that to happen. We give you a full day or
more. If you have any exculpatory witnesses, where are they?
You don't question about it, you don't--all you do is browbeat
the chairman and this side of the aisle for trying to do its
job, and it is not an easy one.
Yes, I yield to my friend from Massachusetts.
Mr. Frank. Thank you, Mr. Chairman. I promise not to
browbeat you in my response, and I apologize for the stress
that you----
Mr. Hyde. Oh, go ahead. Why should you be different?
Mr. Frank. Well, I don't know why I am different, Mr.
Chairman, but I just am.
Mr. Hyde. But why should you be?
Mr. Frank. The point I was making is that it is inaccurate
to assert that we have conceded the point. I do not believe
perjury has come close to being proven before the grand jury,
and I clearly believe that the witnesses themselves refute the
notion of an obstruction of justice. The obstruction of justice
presumably involved Monica Lewinsky, Vernon Jordan, Betty
Currie and Bill Clinton. There are four people who deny that an
obstruction of justice took place: Monica Lewinsky, Vernon
Jordan, Betty Currie and Bill Clinton. If it had been a
prosecution, they would be a witness on this one. So no, we
don't admit there has been an obstruction of justice. We argue
her volunteered statements that no one asked her to lie, no one
offered her a job, they refute that. So I just want to
differentiate myself from this view.
Also with regard to perjury before the grand jury, I don't
think anybody has proven that the sex began in November of
1995, not February of 1996, and that the President, in August
of 1998, consciously and deliberately misrepresented that. I
don't think anyone has proven perjury at all.
Mr. Hyde. I thank the gentleman for his contribution, but I
just want to say the reason we are here with these two
exceptionally productive witnesses is to illustrate the fact
that there are very serious consequences for perjury--for lying
under oath. They have borne those very serious consequences to
their detriment. They have been brave enough to come in and
tell us about it, and I just think it is important that we
understand that there are consequences for perjury,
notwithstanding the trivialization of lying under oath and
misstatements and misleading under oath. There are very serious
consequences that some people have to pay. It is a shame
everybody does not.
Mr. Frank. Mr. Chairman, one more question.
Mr. Watt. Mr. Chairman, parliamentary inquiry.
Mr. Hyde. The gentleman from Massachusetts.
Mr. Frank. Are you saying that if you were a prosecutor,
you would prosecute the President for having remembered that
the sexual activity began in February of 1996 rather than
November of 1995? That is one of the three counts of perjury to
the grand jury that Kenneth Starr has put forward. February of
'96 versus November of '95, more than 2 years after the fact.
Do you believe that that is something for which he should be
prosecuted?
Mr. Hyde. I would rather not answer that. It does not
strike me as a terribly serious count. I don't rank that up
with lying to the grand jury, saying he didn't have a sexual
relationship.
Mr. Frank. That is one of Mr. Starr's arguments in his
referral, one of his three points in his referral.
Mr. Hyde. Mr. Starr is Mr. Starr and I am myself.
Mr. Watt. Mr. Chairman, a parliamentary inquiry.
Mr. Hyde. The gentleman from North Carolina.
Mr. Watt. Could I inquire of the Chair what the regular
order is? Is the Chairman using his 5 minutes?
Mr. Hyde. Yes, I used my 5 minutes, although I yielded, as
you lawyers say----
Mr. Watt. I just wanted to be clear on what the regular
order is.
Mr. Hyde. I hope you don't think I was violating the
regular order.
Mr. Watt. It has been known to happen before, Mr. Chairman.
Mr. Hyde. Well, but I am very concerned about what you
think, so I want to make sure you think I wasn't violating.
Mr. Watt. It is quite obvious you are very concerned about
what I think, Mr. Chairman. Thank you, Mr. Chairman.
Mr. Hyde. I hope you notice I am recognizing you more and
more.
Mr. Goodlatte, the distinguished gentleman from Virginia.
We will get back on track.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Chairman, my understanding of the work of this
committee is to uphold the Constitution of the United States
and to see that the rule of law in this country is preserved,
and I think these witnesses are very fine contributing
panelists as we address that issue. Quite frankly, for months,
some on the other side in this committee have asked us to
address the issue of whether or not the actions taken by the
President were indeed impeachable offenses, and to point out
regarding the comments of the gentleman from Massachusetts, it
is far more than whether or not the President remembered the
date that some of these activities started, and I would like to
refresh his recollection.
On December 23, 1997, the President signed an affidavit in
which he swore to tell the truth, the whole truth and nothing
but the truth in answers to written questions asked in the
Jones v. Clinton case. Such written questions are necessary in
civil rights lawsuits in order for the court and the parties to
ascertain the true facts of the case. In those answers, the
President swore that he had not had sexual relations with any
Federal employees.
The evidence presently before this committee, unrebutted by
the President, indicates that he lied. The President told a
series of lies under oath, based upon the evidence before the
committee, after swearing to tell the truth in a deposition
given in the Jones v. Clinton case, in order to thwart that
Federal civil judicial proceeding.
On January 17, 1998, the President swore to tell the truth,
the whole truth and nothing but the truth in a deposition given
in the Jones case. The President swore that he did not know
that his personal friend Vernon Jordan had met with Monica
Lewinsky, a Federal employee and subordinate and a witness in
the Jones v. Clinton case in which the President was known as
the defendant, and talked about the case. The evidence before
the committee, unrebutted, indicates that he lied.
The President swore that he did not recall being alone with
Ms. Lewinsky. The evidence before the committee indicates that
he lied.
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 v. Clinton case. The
evidence before the committee indicates that he lied.
The President swore that the contents of an affidavit
executed by Monica Lewinsky in the Jones v. Clinton case, in
which she denied they had a sexual relationship, were
absolutely true. The evidence before this committee indicates
that he lied.
The President told a series of lies under oath, according
to the evidence before this committee, after swearing to tell
the truth, the whole truth and nothing but the truth before a
Federal grand jury that was investigating his alleged
misconduct.
On August 17, 1998, 7 months after his deposition in the
Jones v. Clinton case, the President swore to tell the truth
before the grand jury. The President swore that he did not want
Monica Lewinsky to execute a false affidavit in the Jones v.
Clinton case. The evidence before this committee indicates that
he lied.
The President swore that he did not allow his attorney to
refer to an affidavit before the judge in the Jones v. Clinton
case that he knew to be false. The evidence indicates that he
lied.
The President swore that he did not give false testimony in
his Jones v. Clinton deposition, and clearly the evidence
before this committee indicates that he lied.
The President has been afforded the opportunity, members of
this committee have been afforded the opportunity, the
President's counsel has been afforded the opportunity to come
forward and rebut this evidence. We have not even begun to talk
about subornation of perjury, obstruction of justice and abuse
of power.
So these witnesses are very pertinent because of their own
testimony regarding their own experiences and the consequences
they confronted.
Dr. Battalino, it is my understanding that in your
circumstances there were tape-recorded conversations with a
trusted person that were used in the prosecution of you in that
case; is that not correct?
Ms. Battalino. Yes, that is right.
Mr. Goodlatte. And it is my understanding that in that case
you were deprived of your employment as a result of this
prosecution; is that not correct?
Ms. Battalino. Yes.
Mr. Goodlatte. It seems to me that there are very
substantial similarities. Do you have any other similarities
that you would point out to the committee between the
circumstances I just described about allegations regarding the
President and the circumstances that you have very courageously
talked about today?
Ms. Battalino. I think since the issue has come up about
due process, that I plea bargained, I agreed to negotiate a
settlement. So in many respects I did not have the full due
process right that I would have had, had I had the opportunity
and the financial and other support of background to have a
full trial. I opted not to do that as a means to not subject my
family to any more financial loss, and myself, and/or any
further embarrassment.
Mr. Goodlatte. Let me interrupt and point out another
similarity that----
Mr. Hyde. The gentleman's time has expired.
Mr. Goodlatte. Mr. Chairman, if I might ask one additional
question that would point that out.
Mr. Hyde. Very well.
Mr. Goodlatte. Thank you, Mr. Chairman.
It is my understanding that the underlying civil suit that
you were a party to was dismissed; is that not correct?
Ms. Battalino. Yes, that is correct.
Mr. Goodlatte. So you nonetheless still were convicted of
perjury in that suit and lost your Federal Government job as a
result of that?
Ms. Battalino. I was prosecuted before the settlement of
the case, the final dismissal of the case, yes.
Mr. Goodlatte. Thank you, Dr. Battalino. I appreciate you
taking the time, and both of you having the courage to come
before us today and talk about equal justice under the law.
Mr. Hyde. The gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I too want to add certainly my respect and my appreciation
for the willingness of the two witnesses to come before us
today. I think it is difficult for you and for those of us who
have offered a different perspective, for our questions are not
directed personally at you or to in any way disrespect, as I
indicated, the courage you have offered today or what you have
gone through.
And I think your presence here today is a testament to your
leadership as an American. You were willing to accept the
invitation for, in some sense, what you might add to a very
important process. And so in this instance may I say, whatever
happened to you in the past, you are great Americans and we
should acknowledge that.
I do want to indicate to the chairman, however, where we
are today. And in the course of doing so, I will have one or
two questions for the witnesses.
We are here today as a result of a September 11th, 1998
referral from the Office of Independent Counsel dealing with
the question of impeachment of a President of the United States
of America. We are also here pursuant to a resolution passed on
the Floor of the House, drafted by Republicans to indicate that
the world was their oyster, whatever might come, they would
look at it. So we are here today.
As we have proceeded, I had hoped that as Chairman Rodino
in 1974, with the trust of the American people, with the eyes
of the world watching, on something so somber as removal of a
President, we would have proceeded possibly in executive
session, as did the Rodino committee; cross-examining and
examining vigorously, and I assume debating, which of course
those records are still somewhat in executive session; and
finally reaching a common consensus on the direction that we
should recommend to the full House. We only know the Rodino
result by way of that 1 day in August when Members of that
committee offered their thoughts. We ultimately know that
several of the members, of the Republican members of the
committee, voted in favor of articles of impeachment.
This time, today, however, December 1st, 1998, we have had
no fact witnesses; we have had a hearsay witness, we have had
Mr. Starr. He indicated that his world was a world of law, and
not of public opinion and television appearances, though he
took to appearing before us on November 19th in front of the
television cameras and proceeded to move to 20/20 to make his
advocacy even more heightened before the American people, and
possibly an attempt to as well make himself the darling of
those who would desire impeachment. We had no further calling
of witnesses.
We had articles of impeachment drafted and notice given to
those of us who are Democrats by the airwaves of the public
media. Frankly, we now are looking at further investigations,
pursuant to again the notice of the media, on campaign finance
issues that have been reviewed by several committees, one in
the Senate and in the House.
So I would simply say that it would be in order for you to
be here if we had proceeded uniformly, but we have ignored the
language of the Constitution, that impeachment is grounded on
treason, bribery and other high crimes and misdemeanors. This
is not to take away from what happened to you, the tragedy of
your life, and now you have, if you will, repented or
acknowledged and are now offering your insight. But we are here
to be guided by the constitutional standards of treason,
bribery, high crimes and misdemeanors.
What our Republican friends fail to tell America as they
divide over this very tense issue is that the President can be
prosecuted under these alleged crimes once leaving office. Our
job is not simply to abide by the public understanding of
lying. The President has apologized for misleading the American
people. I assume he was embarrassed; he has embarrassed his
family, he has embarrassed and tainted his legacy. But our
charge is simply to determine whether these are impeachable
offenses.
I would simply say to you, Ms. Parsons, that I thank you
for your presence. It is my understanding that your involvement
dealt with allegations dealing with another female, and I would
simply ask both of you at the time, not today, at the time that
you might have said an untruth, were you avoiding
embarrassment? Were you avoiding hurt to your family members,
or to yourself, or to your setting? Was it one where you
thought that, ``If I do this,'' putting aside what happened
later, that ``it would be an ultimate embarrassment to all who
love me and respected me in this private matter.'' Ms. Parsons,
not now today, but when it happened, were you embarrassed about
what you were charged or asked to answer the question on?
Ms. Parsons. No.
Ms. Jackson Lee. You were not embarrassed?
Ms. Parsons. No. What I was, was manipulating my way around
who wouldn't understand what I was doing.
Ms. Jackson Lee. And what a tragedy that a private matter
like that had to be considered, where you had to manipulate.
Dr. Battalino.
Ms. Battalino. I think, Ms. Jackson Lee, as I mentioned in
my statement, that yes, that was certainly one of the thoughts
and feelings that had crossed my mind; that I was, indeed,
embarrassed, and that I was making an attempt to justify that
because I was embarrassed and because it was something of a
personal nature, that adjudicated my not telling the truth, but
that was wrong, and I knew that it was wrong at the time. I
don't think that embarrassment or exposing a feeling and an
experience that is personal is acceptable to not tell the
truth, especially when it is under oath or it is a statement
directly to the American people.
Mr. Hyde. The gentlelady's time has expired.
Ms. Jackson Lee. In these instances, as the witnesses have
said, Mr. Chairman, I thank you for your indulgence, that they
had plead and that they had indicated their untruth themselves.
In this instance, we have none of that at this point, and we
simply need to analogize this to whether these are impeachable
offenses for the President of the United States.
I do thank you for appearing here and telling us of your
stories under your fact situations, which are so different from
that of the President.
Mr. Hyde. The time of the gentlelady has expired.
Ms. Jackson Lee. I thank the chairman very much for his
indulgence.
Mr. Hyde. You are welcome.
Mr. Buyer.
Mr. Buyer. I want to thank the chairman for having orderly
proceedings, because our function here under the Constitution
is like the grand jury function, the accusatory function, which
you have said before. So I want to thank you.
I also would say that I find perjury under the same
classification of bribery, meaning when it is said of treason,
bribery or other high crimes, I believe perjury constitutes
other high crimes. So I wanted to be instructive to my
colleague there that lacked that scope.
I also want to share with Ms. Parsons, when I was back home
during Thanksgiving, my daughter plays high school basketball,
and while I was in the stands, I couldn't help but my own
friends would talk to me about this case and the proceedings,
and what I found was very interesting. What some of my friends
who weren't focusing on the legal technicalities and the legal
side of this issue with the President, they are sitting in the
stands watching a high school basketball game, they remember
and they can't get out of their mind the President shaking his
finger into their face on television saying, I didn't have
sexual relations with that woman. And then they immediately
say, ``Well, don't impeach him because of an affair.''
See, I think that was highly representative of I think a
lot of people in America. They just remember that shaking the
finger and they think that somehow this impeachment is about
that affair.
So I have to agree with my colleague here, Mr. Inglis. He
put it very eloquently. You two have done something that no one
else could do, and that is to keep the extreme partisans quiet
here today. The extreme partisans are trying to play into what
my neighbors were then saying, ``Well, don't impeach him
because of a sexual affair.'' No, you went to jail over
perjury.
So let me just take a step back here, and what I would now
say to my neighbors at home and to the rest of you and to
America is that in May of 1994, Paula Jones, a citizen of the
United States, filed a civil rights lawsuit, a civil
proceeding, against the President, alleging that he sexually
harassed her and that he was, while he was Governor of Arkansas
in the Jones v. Clinton case. The Supreme Court unanimously
affirmed her right to bring that case and her right to have a
fair hearing and an orderly ruling as guaranteed by the
Constitution.
In that case the judge ruled that the President was
required to testify, as is common in harassment cases and in
any sexual relations--about any sexual relations he had or
sought to have with any State or Federal employees within a
relevant time frame. This information is often necessary for
plaintiffs who bring civil rights sexual harassment cases, for
to prove those cases, especially when those--when the harassing
conduct occurred in private and is the ``he-said, she-said''
situation. This information is used in court to lend
credibility to the plaintiff's case.
It is alleged that in relation to his duty to testify
truthfully in the Jones v. Clinton case, the President lied
under oath, encouraged others to lie under oath, tampered with
witnesses, obstructed justice. It is also alleged the President
committed the same offenses and abused the power of his office
in relation to Federal criminal proceedings that grew out of
his misconduct relating to the case of Jones v. Clinton.
So there are some that like to say this is only a political
proceeding. No, this is a legal proceeding that we are
conducting here because we do have a standard. It is given to
us in the Constitution.
Now, I couldn't help but think of both of you as you were
testifying, because I thought that--let me ask both of you. Dr.
Battalino and Ms. Parsons, was one of the reasons that you
testified falsely because you thought it would give you an
advantage in the civil case in which you were involved in, and
do you believe that the courts would work well if witnesses
were allowed to testify falsely without any punishment?
The other question I have for you would be, I also found it
quite interesting, as my colleague Mr. Goodlatte went through a
series of alleged perjuries the President may have committed,
doctor, you were sent to prison because you said no to a
specific question that said, ``Did anything of a sexual nature
take place in your office on June 27, 1991?'' And you answered
``no'' and you went to prison.
Ms. Battalino. Yes.
Mr. Buyer. On one ``no''?
Ms. Battalino. One ``no''.
Mr. Buyer. Mr. Goodlatte gave a whole series of lists
whereby the President sought to obstruct justice in a civil
proceeding where he stood to lose money out of his own wallet.
So I am interested in your answer to that.
The other thing I find quite interesting, Dr. Battalino,
when you were under a wire, your quote was, when this gentleman
revealed to authorities that you had had sex in your office,
you responded, quote, ``No, that is not what I told you to
do.''
So my question is, what did you tell him to do? And if that
doesn't sound like a cover story, did you have a cover story?
Because what I also find quite interesting, in all of my years
of criminal prosecution and defense, I have never heard
defendants ever say to each other, ``Okay, I tell you what, I
want you to lie.'' They don't say that. They say, ``Here is the
story,'' and then you have to prove by circumstantial evidence
about the obstruction, i.e., cover story.
So please answer the series of questions.
Ms. Battalino. May I start with the last question?
Mr. Buyer. Yes.
Ms. Battalino. To tell you the truth, I have never heard
the transcripts in full, nor have I--I mean I haven't heard the
recordings, nor have I read the transcripts. So I am at a
disadvantage in terms of exactly what I said and what the
intent of what I said was about.
As I recall, the discussion that you are relating to had to
do with telling my superiors at the VA hospital whether or not
we did, indeed, have a sexual encounter on the premises. As far
as a cover story goes, I think certainly that on some level
there was an intent to influence the civil case by the response
that I gave. I think it was a confused, unclear concept and
perception that I had, but I would not doubt that there was
some intent to influence the civil proceedings.
Mr. Hyde. The gentleman's time has expired.
Mr. Buyer. Mr. Chairman, would you permit the witnesses to
answer, Ms. Parsons?
Mr. Hyde. Certainly.
Ms. Parsons. I may have gotten caught in one lie, but there
was a definite pattern.
Mr. Buyer. Was one of the reasons you gave false testimony
because you thought it would give you an advantage in your
civil case?
Ms. Parsons. Because--I created the defense because I felt
that most of the things that were surrounding me could not be
understood by the general public or the people that were
involved. And it is a ridiculous reason, but my strategy was
very--the only thing I can say is, it is called incorrect
thinking.
Ms. Battalino. May I respond?
Mr. Buyer. Yes, ma'am.
Ms. Battalino. In my case also, I think that there was an
element whereby I was not so much attempting to influence the
results of the civil case, but that in my mind there was--that
that case--and in a sense maybe I can empathize with one of the
explanations that I have heard Mr. Clinton give, and that is
because I did not think that that lawsuit was a legitimate or
an honest civil case--that that caused me in my mind to justify
giving that inaccurate testimony, and there is no excuse for
that.
Mr. Buyer. Thank you, Mr. Chairman.
Mr. Hyde. The gentleman's time has expired.
The gentlelady from California, Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman.
I would like to declare myself in relationship to whether
or not I believe the President perjured himself, because of
statement that someone attempted to clarify. I am not convinced
that the President has perjured himself.
Having said that, I would like to raise a question I guess
to one of the lawyers on this side of the aisle: Are all cases
of perjury prosecuted? Mr. Nadler? Can you help me on that
question?
Mr. Nadler. No. Prosecutorial discretion is exercised. Some
are prosecuted and some aren't.
Ms. Waters. So there could be extenuating circumstances:
Intent, materiality, any of those things could possibly cause a
prosecutor not to pursue prosecuting someone who may have
perjured themselves?
Mr. Nadler. That is true. The prosecutor would have to
weigh two things: How strong a case he thinks he has in terms
of his ability to prove it, and how important he thinks it is
in terms of his other cases.
Ms. Waters. How many cases do you think that are out there
that are not prosecuted? Is this the exception rather than the
rule? Do we have many cases of perjury that are? Thank you. I
didn't think so, and I don't think any time has been spent
trying to find out whether or not that is the case.
Mr. Chairman and my Ranking Member, ever since the
Judiciary Committee dumped the Independent Counsel's salacious
referral into the public domain, I warned this body that
Americans were becoming increasingly more suspicious of their
government and our ability to be fair and sensible. The public
has told us time and time again that Americans want fairness
and they want us to get to the people's business.
In order to attend this hearing, I was forced to cancel at
the last minute a very important forum on women and AIDS that
was to be held in my district today as part of World AIDS Day.
World AIDS Day is held every December 1st to bring attention to
the global AIDS crisis. As you may know, the HIV/AIDS epidemic
has reached crisis proportions, both here and abroad, with half
of all new infections worldwide occurring among young people
age 15 to 24, and with 34 million people infected in sub-
Saharan Africa alone. Here in the United States, the HIV/AIDS
crisis continues to ravage our citizens, and it is devastating
in the African-American community.
By raising the critical issue of HIV/AIDS, I do not mean to
abdicate my constitutional duty. Far from it. As Chair of the
Congressional Black Caucus, I have argued that Members of
Congress must carry out their duty to uphold the Constitution
and ensure fair and judicious process. Is lying under oath a
serious matter? Yes. Should perjury be tolerated? No. We did
not need this panel of 11 witnesses to explain the obvious.
The larger question that looms is whether impeachment is a
proper tool to address the President's response to questions
about his private consensual sexual affair. I must admit, I am
not convinced that the President's answers regarding his
relationship with Monica Lewinsky are ``great and dangerous
offenses,'' ``attempts to subvert the Constitution,'' or ``the
most extensive injustice,'' as described by George Mason, the
man who proposed the high crimes and misdemeanors language
adopted by the framers of the Constitution.
By adopting a selective impeachment process, Republicans on
this committee have elevated President Clinton's responses
about whatever affair he may have had with Ms. Lewinsky to high
crimes and misdemeanors. In comparison, the lies that were told
by Presidents Reagan and Bush propagated regarding the illegal
sale of arms during the Iran-Contra diversions do not in their
mind constitute great and dangerous offenses to the country and
the Constitution.
Let's take a look at what we have here. In his deposition,
the President denied having sexual relations with Monica
Lewinsky and he denies touching specific parts of her body.
Although Ms. Lewinsky said the President did touch certain
parts of her body, she too stated she did not have sexual
relations with the President.
In contrast, President Reagan in his January 26, 1987
interview with Independent Counsel Lawrence Walsh, stated he
approved the shipment of arms to Iran. Three years later
President Reagan said he had no recollection of whether he
approved or had discussions about arms sales. President Bush,
who initially acknowledged he was regularly informed of the
Iran-Contra activities, later stated he was out of the loop of
the illegal Contra arms sales.
The same Members of Congress who defended the lies and
illegal actions of Presidents Reagan and Bush now want
President Clinton's head for what they consider lying about his
private sexual affair. This double standard would be laughable
if it were not a serious constitutional abuse. Where were the
cries for impeachment when Presidents Reagan and Bush
repeatedly lied to the office of independent counsel, Congress
and the American people?
Mr. Hyde. The gentlelady's time has expired.
Ms. Waters. May I have 30 more seconds?
Mr. Hyde. You surely may.
Ms. Waters. Where were the charges of perjury and
obstruction of justice when President Bush refused to submit to
a second interview with Independent Counsel Lawrence Walsh to
ascertain his knowledge of the diversion of arms sales proceeds
to the Contras? When I compare the Iran-Contra activities and
the lives lost, an evasive response about a private sexual
affair pales in comparison. The American people are not stupid.
They understand intuitively that the framers of the
Constitution reserved high crimes and misdemeanors for the
abuses practiced by Presidents Reagan and Bush and not for
President Clinton's misleading statements about an embarrassing
affair.
I will conclude at this point, Mr. Chairman.
Mr. Hyde. The gentleman from Virginia.
Mr. Goodlatte. I thank you, Mr. Chairman. I would ask that
a New York Times article, dated November 17, 1998, outlining
prosecutions for perjury and indicating that in the last 5
years there have been nearly 500 Federal court prosecutions for
perjury and in the State of California alone in 1997, there
were more than 4,300 prosecutions for perjury, and I would ask
this article be made a part of the record.
Mr. Hyde. Without objection, so ordered.
[The information follows:]
[From The New York Times, Nov. 17, 1998]
In Truth, Even Little Lies Are Sometimes Prosecuted
(By William Glaberson)
A Texas judge was convicted of perjury for declaring that he had
used political contributions to buy flowers for his staff when, in
fact, the flowers went to his wife.
A Florida postal supervisor is in prison for denying in a civil
deposition that she had a sexual relationship with a subordinate.
An Ohio youth who had been arrested for under-age drinking
testified that he had never been read his rights by the police. He was
convicted of perjury for lying and sent to jail for 60 days.
Defenders of President Clinton have argued that his accusers are
overzealous in saying he should be impeached or subject to criminal
charges on the grounds that he committed perjury when he denied in a
civil deposition that he had a sexual relationship with Monica S.
Lewinsky.
But a review of more than 100 perjury cases in state and Federal
courts and statistics on the number of perjury prosecutions brought
around the country show that people are prosecuted in America for what
might be called small lies more regularly than the Clinton defenders
have suggested:
THE RISKS OF LYING
----------------------------------------------------------------------------------------------------------------
Federal Prosecutions
---------------------------------------------------
Total Major
Perjury Prosecutions Prosecutions
----------------------------------------------------------------------------------------------------------------
1997........................................................ 87 49,655
1996........................................................ 99 47,146
1995........................................................ 85 45,053
1994........................................................ 93 44,678
1993........................................................ 111 45,902
----------------------------------------------------------------------------------------------------------------
California Prosecutions
---------------------------------------------------
Total Felony
Perjury Prosecutions Prosecutions
----------------------------------------------------------------------------------------------------------------
1997........................................................ 4,318 326,768
1996........................................................ 3,572 328,168
1995........................................................ 3,302 345,125
1994........................................................ 2,520 342,321
1993........................................................ 1,968 345,469
----------------------------------------------------------------------------------------------------------------
Sources: Administrative Office of the U.S. Courts; California Department of Justice.
With the House Judiciary Committee's hearings into the possible
impeachment of the President set to begin this week, the President's
defenders are expected to return to their theme. His lawyer, David
Kendall, has said that ``no prosecutor in the United States would bring
a perjury prosecution on the basis'' of the kinds of questions Mr.
Clinton was asked about his sexual harassment lawsuit.
But interviews with lawyers, legal experts and a woman who is
serving a sentence for lying about sex in a civil case show that, far
from being shrugged off, the threat of prosecution for perjury, even in
civil cases, is a crucial deterrent in the legal system.
``Symbolically, the sword of Damocles hangs over every perjurer's
head and no one can know whether they're the perjurer that's going to
be prosecuted,'' said Jeffrey Abramson, a former prosecutor and an
expert on jury trials who is a professor of legal studies and politics
at Brandeis University.
One statistic on perjury prosecutions has been widely circulated
since the President's supporters began arguing that perjury was little
more than a technicality seized upon by the President's enemies: of
49,655 cases filed by Federal prosecutors last year, only 87 were for
perjury.
State courts, where statistics are harder to come by, are another
matter. Data supplied by court officials in two states, California and
New York, suggest that perjury prosecutions are not as rare as some
have suggested. In California alone last year, there were 4,318 felony
perjury cases. In New York there were 395 perjury cases last year. And
even in the Federal system, prison officials said in October that 115
people were serving sentences for perjury in Federal prisons alone.
The review of the cases offers some support for Mr. Clinton's
defenders. Perjury charges are brought in civil cases far less
frequently than in criminal cases. In addition, the law covering
perjury is highly technical, with courts sometimes ruling that some
obviously misleading statements like those Mr. Clinton acknowledges
making may not constitute perjury under the law.
But the cases also show that, even in civil cases, judges are
sometimes provoked by perjury more than by many of the evils they see
everyday. In the Florida case of the postal supervisor in July, the
judge, Lacey A. Collier, sentenced the supervisor, Diane Parker, to 13
months for falsely denying in a civil deposition that she had a sexual
relationship with a male subordinate.
``One of the most troubling things in our society today,'' Judge
Collier said, ``is people who raise their hands, take an oath to tell
the truth and then fail to do that. An analogy might be made to
termites that get inside your house. Nobody sees it, nobody knows about
it until the house collapses around you.''
Some courts have gone out of their way to say that perjury in civil
cases is as important as perjury in any other testimony.
In a 1988 civil suit in Georgia, for example, a founder of the
Southern White Knights of the Ku Klux Klan, David Wayne Holland, was
found liable for violating the rights of civil rights marchers.
Although perjury prosecutions make up a small percentage of total
cases, Federal and state officials do pursue them.
In 1990, Mr. Holland was convicted of perjury for lying about his
assets so the plaintiffs could not recover any of the $450,000 they had
won in the verdict. In the sentencing, a Federal judge in Georgia said
that because Mr. Holland had lied in a civil proceeding, the sentence
was to be less severe than it would have been had he lied in a criminal
case. The judge sentenced Mr. Holland to home detention and community
service.
But in 1994, a Federal appeals court criticized that ruling and
sent the case back for a sterner sentence. ``We categorically reject
any suggestion, implicit of otherwise,'' the appeals court judges said,
``that perjury is somehow less serious when made in a civil
proceeding.''
The review of perjury cases also shows that, although lies about
sex are rarely the subject of perjury prosecutions, there are
precedents that come quite close to the accusations against Mr.
Clinton.
In 1984, Pam Parsons, the former women's basketball coach at the
University of South Carolina, went to prison for 4 months after a
perjury conviction for her testimony in a civil libel lawsuit she had
filed against Sports Illustrated.
The magazine reported that she had had a lesbian relationship with
at least one team member and recruited players ``with sex in mind.''
Ms. Parsons and the player testified, denying, among other things, that
they had frequented a lesbian bar. The jury in the libel case decided
for the magazine. Then, the women were indicted for perjury. Both
pleaded guilty.
In a current case, Barbara Battalino, a former Veterans Affairs
psychiatrist at a medical center in Idaho, has become, perhaps, the
best known admitted perjurer in the United States. She now acknowledges
she performed oral sex in her Government office on a Vietnam veteran
who was seeking psychiatric help in 1991.
She says the man, Ed Arthur, was never formally her patient. But
she also admits that when he brought a civil suit for medical
malpractice and sexual harassment, she lied when his lawyer asked her
at a deposition whether ``anything of a sexual nature'' occurred in her
office when she was alone with Mr. Arthur.
Mr. Arthur provided the prosecutors with tapes he had secretly made
of her telling him to deny their affair. She was convicted of perjury.
She is serving 6 months under home confinement and says she has had to
give up her medical license because she was convicted of felony perjury
charges.
In an interview after one network television interview and before
another, Dr. Battalino, 53, said she was sorry she had told a lie, even
though it was to try to keep an embarrassing sexual relationship
private. But if Mr. Clinton escapes punishment, she said, she deserves
a pardon.
``I think he's getting special treatment because he's the
President. He has used his office to get his message across that what
he did was no big deal. That wasn't good enough for me. I apologized to
the judge that I lied to.''
Some supporters of Mr. Clinton have suggested that the independent
counsel, Kenneth W. Starr, was using the possibility of a perjury
charge as a way to damage Mr. Clinton because Mr. Starr opposed his
politics. They have said that was an abuse of Mr. Starr's powers as a
prosecutor, suggesting that if Mr. Clinton were a private person he
would never be charged with perjury for lying about private sexual
matters.
But whether it is an abuse of power or not, other prosecutors in
other high-profile cases have sometimes pushed for perjury charges--to
send a signal to the public that lying will be punished. In fact, there
is some evidence that the higher the profile of the case, the likelier
the perjury charge.
In a Kansas murder case that attracted wide local publicity, the
Geary County Attorney, Chris E. Biggs, won a perjury conviction of a
local minister who prosecutors said had played a role in the killing.
The prosecutors charged the minister had lied in a related civil case
about whether he had had a sexual relationship with one of the people
charged with him in the killing.
``It is important,'' Mr. Biggs said in an interview, ``to send a
message because the whole system depends on people telling the truth
under oath.''
Similarly, in Kentucky, a Federal appeals court last month affirmed
the perjury conviction of Robert DeZarn, who was the Adjutant General
of the Kentucky National Guard. He had been charged with perjury for
denying in an investigation that he had engaged in improper political
fund-raising from subordinates. At the time of the perjury charge, the
fund-raising investigation was the subject of extensive news reports in
Kentucky.
For many years, some scholars and many practicing lawyers have
suggested that lying under oath was epidemic in the courts. But some
legal experts say they are even more troubled by what they say is a
highly technical approach the courts often take in defining what
perjury is. In a 1973 case, Bronston v. United States, the U.S. Supreme
Court laid down a rule for perjury cases that is still the governing
law for courts across the country.
Some of Mr. Clinton's critics have said the fine distinctions set
forth in the Bronston case are at the heart of Mr. Clinton's assertion
that he did not commit perjury when he denied that the had ``sexual
relations'' as that term was defined in Ms. Jones's sexual harassment
lawsuit.
The man at the center of the 1973 case, Samuel Bronston, a movie
producer, filed for bankruptcy and was asked in testimony in his
bankruptcy case whether he had ever had Swiss bank accounts.
Mr. Bronston's answer was, ``The company had an account there for
about 6 months, in Zurich.'' In truth, he once had $180,000 in an
account in Geneva.
Mr. Bronston was later found guilty of perjury. The Supreme Court
reversed the conviction. The Court said that even if Mr. Bronston's
answers ``were shrewdly calculated to evade,'' it was the lawyer's
responsibility to bring the witness ``back to the mark, to flush out
the whole truth.''
Some critics of the ruling say it added momentum to the rampant
telling of half-truths in the courts. Robert Blecker, a professor at
New York Law School who has written about perjury law, said that judges
nationally have concluded that the Supreme Court Justices were
permitting what most people would consider lying under oath. ``They
sent a signal,'' Mr. Blecker said, ``that you can calculatingly mislead
by a statement that is carefully crafted to say one thing when you are
really saying something else.''
Mr. Hyde. The gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman. And I might add to
that. I think the gentlelady from California asked a very valid
question in terms of are all perjury offenses prosecuted?
Certainly that is not the case, and in most instances I suspect
it is because they are not detected. But I would be greatly
surprised if any of the distinguished members of the judiciary
who will testify, as well as our former Attorney General and
law professors from distinguished law schools, would say that
it is not unimportant to prosecute people who commit perjury in
a court. Truthful testimony underpins our judicial system; we
must keep that judicial system strong. We don't want to go back
to the point that whoever has the most guns wins the case. It
is important that we have honest, truthful testimony, complete
testimony. When someone raises their hands to tell the truth,
they also say to tell the whole truth and nothing but the truth
and not to hedge around.
One of my colleagues earlier had mentioned from the other
side that the President has admitted to misleading the American
people. I have a difficult time, when I listen to that oath,
squaring how someone can say I misled the American people, but
I told the truth when I said, I swear to tell the truth, the
whole truth and nothing but the truth. How can you mislead
somebody when you take that oath, without committing perjury?
And perhaps someone on the second panel who is legally
trained can educate me on that. But it seems to me that if you
mislead someone, you commit something less than telling the
truth, the whole truth and nothing but the truth, so help you
God.
I did want to point out to the gentlelady from California,
as my colleague from Virginia did, that in California, in her
home State, in 1993 there were 1,900 people, these were
estimates, 1,968 people actually prosecuted for perjury. It has
gone up every year; 2,500 in 1994, 3,300 in 1995, 3,500 in
1996, and 4,300 in 1997. Unfortunately, what this reflects is a
societal pattern of increased lying. You hear about it in kids
that are cheating on tests at school. Those numbers are going
up. We are becoming, I guess, more tolerant, and that is very
important in Washington these days, that we become tolerant.
Unfortunately, we are becoming tolerant of lying in this
country, as seen from these prosecutions in the State of
California increasing.
So what do we do as a Congress when we find that our
President has allegations against him, not just one time, but
over a period of several months of lying under oath? Can we
ignore that and say well, everybody does that. Well, maybe they
do. But not everybody gets caught. And we have the chief law
enforcement officer of this country, the man who appoints the
Attorney General, the man who appoints the U.S. Attorneys who
prosecute all the Federal laws out there in all the Federal
courts, this person is alleged to have lied.
Now, Ms. Battalino, I certainly--your testimony struck me
when you said that you at a point crossed the line, you made a
conscious choice. And I think we heard that in Mr. Starr's
testimony, that the President had several occasions when he
made a conscious decision, an educated decision, he weighed the
pluses and minuses. And I mentioned to Mr. Starr what struck me
was when the President talked to Dick Morris and said, ``I'm in
a quandary, what do I do here?'' And they decided to take a
poll on what to do, whether to tell the truth or not to tell
the truth, what would sell and what wouldn't sell. Mr. Morris
took an overnight poll and came back and said, ``Well, they'll
forgive you for adultery but not for perjury.'' At that point
it looks like he made a choice and, according to Mr. Morris,
made the statement that ``We'll just have to win.''
It was at that point, from that point forward, that the
President got other people involved. And, therefore, it may
have been just simply lies within the family, maybe it was
grounds for a divorce. In all honesty, I don't like what he
did, but I don't think he had violated any laws with Ms.
Lewinsky, but up to that point it may have been grounds for a
divorce. But once he made the decision, that choice, after
talking with Dick Morris to move forward, he became involved in
a legal process and had other people in his administration get
involved, from filing affidavits to telling stories that they
would repeat in grand juries.
I am concerned not so much about whether we are lowering
the expectation, the level for impeachment--because we hear
that a lot--I am more concerned with the Lindsey Graham test:
Will we be able to look back in 30 years and say that we did
the right thing, or are we going to look back and say did we
lower the standards for the presidency? Are we willing to say
we are going to accept perjury and these other things, if
proven true, by the chief law enforcement officer, Commander in
Chief of this country who sends our soldiers off? Are we going
to question that in 30 years? Or are we going to do the right
thing?
I hope, as a result of these hearings and your gracious
testimony today, that we will have all the information we need
to make that conscious choice for the American people.
I yield back the balance of my time.
Mr. Hyde. The gentleman's time has expired. The gentleman
from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
I want to welcome you to this hearing. I along with
everyone else appreciate the courage that you have displayed
here this morning. I wasn't going to pose any questions, but I
feel that I must; otherwise I might be labeled as an extreme
partisan. I thought that was the word that I heard from one of
my colleagues on the other side.
So just let me ask one question and then I would like to
make some observations. But has either one of you, and I
presume you haven't, have an opportunity to review the grand
jury testimony of Mr. Clinton, of any of the significant
witnesses, such as Ms. Lewinsky, prior to coming here this
morning?
Ms. Battalino. Could you repeat that?
Mr. Delahunt. Yes. Did you have a chance to review or read
the grand jury testimony or any of the documents that were
referred to the committee by Mr. Starr?
Ms. Battalino. Just those that were open to public
knowledge.
Mr. Delahunt. Well, let me ask you this. Did you have a
chance to sit down and actually read the grand jury testimony
of Mr. Clinton, or Ms. Lewinsky? Have you?
Ms. Battalino. I have read excerpts.
Mr. Delahunt. You have read excerpts. And you, Ms. Parsons?
Ms. Parsons. I have not. I did not want to be biased.
Mr. Delahunt. Thank you. You know, much has been stated
this morning about the rule of law. I think every member of
this committee is concerned about the rule of law, whether we
be Republican or whether we be Democrats. But I think it is
really important also to understand that you were prosecuted
under the criminal code of the United States. Every American
citizen--and I think it is important that the American people
understand this--every American citizen, including a President,
whether that President be President Clinton or, in the case of
the Watergate hearings some 24 years ago, President Nixon, is
subject to prosecution. And I think it has been made rather
clear in the record that any allegations that may be proven to
be true involving perjury or obstruction of justice pose no
problems in terms of criminal prosecution and statute of
limitation issues.
So I think it is important to remind ourselves that upon
the expiration of any President's term, the same process that
you both experienced applies to that President, again whether
it be President Clinton or President Nixon. I don't remember
President Nixon, when President Ford pardoned him for any
potential criminal prosecution saying, well, I don't need that
because I am above the rule of law. My memory is he accepted
that pardon readily and, I am sure, welcomed it. So when we
talk about the rule of law, we are talking about the criminal
code, and every single President of the United States is
subject to that.
However, let us understand very clearly that presidential
impeachment applies to only one American citizen, the President
of the United States. So, of course there are differences.
Ms. Battalino. May I make a statement?
Mr. Delahunt. No, I don't have enough time, but I would be
more than happy to discuss it with you afterward, Dr.
Battalino.
I think it is important to remember that. And I guess what
I am hearing today is two varying perspectives of what we ought
to be about as a committee. I keep hearing, I think it was my
friend from Virginia, Mr. Goodlatte, who talked about who
rebutted evidence by the President, as if it was the President
of the United States who had a duty to rebut evidence. My
memory, and I see my time is running out, is that one of the
fundamental concepts included in due process, which pervades
the entire Constitution including Article 2, is the presumption
of innocence, not a presumption of guilt.
I yield back.
Mr. Hyde. I am pleased to yield the gentleman another
minute if he will let Dr. Battalino answer the question you
posed to her.
Mr. Delahunt. No, because the gentleman to my left is
anxious to get on and I know--but I will be happy to talk to
you, Dr. Battalino. And I really want to thank the Chair for
indulging me as he always does. Thank you.
Mr. Hyde. You are properly grateful.
Dr. Battalino, you had an answer that you were not
permitted to give. Would you give it now, please?
Ms. Battalino. I would be happy to. Thank you, sir. The
point I wished to make is that I certainly would have preferred
to have the ability to complete my profession before I was
prosecuted, also. I didn't have that opportunity.
Mr. Hyde. Thank you. The gentleman from Florida, Mr.
Wexler.
I am sorry, Mr. Chabot. Forgive me.
Mr. Chabot. Thank you. Dr. Battalino, the distinguished
gentlelady from Texas asked you earlier about if your
motivation for lying was at least partially to avoid the
embarrassment that might come out as a result of all these
things. And I think you indicated yes, that was part of the
motivation.
Ms. Battalino. Yes.
Mr. Chabot. Despite that, did the fact that you lied to
hide an embarrassment in any way avoid any of the consequences
that you had to go through as a result of the perjury?
Ms. Battalino. No, it didn't. And as I mentioned in my
statement, I regret that I did not tell the truth sooner and
apologize sooner, because when I did, when I had the ability to
do that, the internal strength and grace to do that, it made
such a difference in my life. It gave me a sense of relief, a
sense of accommodation to the wrong that I had done.
Mr. Chabot. So despite the fact that obviously anybody in
this situation would want to avoid the embarrassment, the fact
that you perjured yourself created a very heavy price that you
personally had to pay?
Ms. Battalino. Absolutely.
Mr. Chabot. You were no longer able to practice as a
doctor, you lost your law license, and the criminal problems
that you have had as a result of this, are obviously a very
heavy price that you have paid. And I think, as we have all
said, obviously nobody condones the activities, but it took a
lot of courage on both of your parts to be here this morning
and testify before this committee. I think it is also important
for all of us to remember that the two of you here today are
representative not just of yourselves but 113 other Americans
who right now are suffering criminal consequences in the
Federal criminal justice system because they committed perjury;
113 people either behind bars or under some sort of home
confinement or whatever, but they have been convicted. That is
just the Federal courts. We have also got 50 States out there,
and there are thousands and thousands of other people who have
committed perjury and that have suffered severe consequences as
a result of that.
Would either one of you like to comment on what sort of
message it sends to those people who are either behind bars or
are on probation or whatever, who have been convicted of
perjury? If this President has committed perjury and ultimately
gets away with it, what message does it send to those people?
Ms. Battalino. I am more concerned about the message that
it gives on a broader level, not just those of us that have
been prosecuted. I would hope that all of us that have been
prosecuted, and that it is a legitimate prosecution, that we
would all be able and willing to admit that we were wrong and
we did the wrong thing and not make any attempt to excuse the
wrong that we did. So my concern is at a much broader level to
the young people, the citizens of the United States. I think it
is wonderful that these proceedings are allowing the public to
understand that there have been prosecutions, that perjury is a
serious breach in our law, in our view of law as a society, as
a Nation. So I would hope that at a broader level, this would
have more of a significance and a reality for my fellow
American citizens.
Mr. Chabot. Thank you. Let me just comment, also. It was
also brought up on the other side by one of the distinguished
Members that the President is accused of lying relative to the
dates of when he first began this inappropriate relationship,
as to whether it was November of 1995 or whether it was
February of 1996. And I think it is important to note that one
of the reasons that apparently the President did lie about that
is because at the earlier date, Ms. Lewinsky was still an
intern. And I think everybody understands or should understand
that interns are absolutely, unequivocally off-limits, and
everybody understands that. So at that later date, she was no
longer an intern. I think everybody understands or should
understand that that is apparently the reason that the lie
about the dates took place. And the other thing that I think is
important is there are a whole lot of other lies which are much
more significant: the lie about whether or not a relationship
actually took place; whether they were alone together; and
whether or not--what was this President's involvement in this
job search to essentially make this witness keep her mouth
shut. There is a whole range of issues that suggests that lies
took place, not just that one particular thing about the date.
At this point I think I will yield back my time. Thank you.
Mr. Hyde. I thank the gentleman. The gentleman from
Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman. I am afraid that this
committee has become the theater of the absurd. I admire the
personal courage of the women before us today, I truly do. But
it seems that their personal courage is being misused by some
for the partisan goal of impeaching the President.
No one, no one, is suggesting that perjury is anything but
wrong. No one is suggesting that lying to the American public
is anything but wrong. The only question before this Judiciary
Committee is whether the President's actions rise to the level
of an impeachable offense. If not, what consequences should the
President face?
Some suggest if we do not impeach, there are no
consequences for the President. In that regard, Mr. Chairman, I
believe it is helpful and timely to read your eloquent and
moving words to the House of Representatives on July 20, 1983,
when the House took your lead and opted to censure a
Congressman who had a sexual relationship with a 17-year-old
page, not a consenting adult.
These are Chairman Hyde's wise words: We sit here today not
as finders of fact. The facts are stipulated. We sit here not
to characterize the crime, the breach, the transgression,
because we all know the transgression, which is admitted and it
is stipulated as reprehensible. We sit here to find a
punishment that fits the breach. And so in searching our souls
for the appropriate punishment, I ask the Members to consider
the situation in its totality, in its entire context.
I suggest to the Members that this man would rather have
lost an arm at the shoulder than have to tell his wife, than
have to grieve his wife as he did with the media. I suggest
that all life is about is to earn the esteem of our fellow men.
That is what we are here for. That is why we run for election.
That is lost to this man. He is embarrassed. He is humiliated.
He is displaced and it endures. It is not over. It will never
be over. It will not be over as long as he lives. And it will
remain after he lives. It will be with him. And it will be with
his family as long as they live.
Mr. Chairman, I suggest to the Members that compassion and
justice are not antithetical. They are complementary. The
Judeo-Christian tradition says hate the sin and love the
sinner. We are on record as hating the sin, some more
ostentatiously than others. I think it is time to love the
sinner.
Mr. Chairman, your wise words carry today, in 1983, and I
plead with you now to once again lead this Congress to censure
and end this nightmare for the good of our Nation. Thank you,
Mr. Chairman.
Mr. Hyde. I thank the gentleman for quoting me so
accurately. I regret to say that we didn't carry the day, but
we made a good effort.
The gentleman from Georgia, Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman. I would like to ask both
of the witnesses if the following is the oath that you took in
the court proceedings that then gave rise to the charges
against you. Quote: ``Do you solemnly swear that the testimony
you are about to give in this matter will be the truth, the
whole truth and nothing but the truth, so help you God,''
closed quote?
Ms. Parsons. Yes.
Ms. Battalino. Yes.
Mr. Barr. I would like to quote this again for the record.
This is the President. ``Do you solemnly swear that the
testimony you are about to give in this matter will be the
truth, the whole truth and nothing but the truth, so help you
God?''
''I do.''
I yield back the balance of my time.
Mr. Hyde. I thank the gentleman. The distinguished
gentleman from New Jersey, Mr. Rothman.
Mr. Rothman. Thank you, Mr. Chairman. First I want to thank
both of these women for testifying today. You have displayed
enormous courage in coming here and telling your stories so
eloquently. You have taken quite a journey. You have recited
your journeys in a compelling way, and we have all been deeply
touched.
I do want to address some remarks, though, to my colleagues
on this committee. At least from this one Democrat, and I think
I speak for most of us, we acknowledge that perjury is a very
serious offense. And, when proven, it is punishable under the
criminal law. If Mr. Starr or any other prosecutor feels that
President Clinton committed perjury, the prosecutor can bring a
criminal charge against the President and have him tried
criminally for perjury. Whether that is during his presidency
or after his presidency is a matter of constitutional law, but
he can be brought up on criminal charges for perjury. With
regards to perjury--that is as it should be. He should not be
above the law. But with regards to whether perjury is a grounds
for impeachment, it may well be.
But first this committee has to determine whether the
President committed perjury. And then this committee must
determine whether perjury about the facts that are proven, if
they are proven, rises to the level of an impeachable offense,
treason, bribery, or other high crimes and misdemeanors, or
does it require a lesser sanction?
I simply would conclude my remarks by saying that so far in
our 3 months' worth of work, this committee has not resolved
either of those two questions.
I yield back, Mr. Chairman.
Mr. Hyde. I thank the gentleman. The gentleman from
Tennessee, Mr. Jenkins.
Mr. Jenkins. Thank you, Mr. Chairman. The questions I had
have been asked and answered, and I would like to reserve my
time in this matter.
Mr. Hyde. I thank the gentleman. The gentleman from
Wisconsin, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman. And I want to thank
both witnesses for being here today. I think it is part of the
healing process for you to come before us today to share your
experiences. Just so I am sure, Ms. Parsons, in your case you
were actually the plaintiff in that case; is that correct? You
were the one who initiated the case?
Ms. Parsons. Yes.
Mr. Barrett. And, Doctor, you were the defendant in a claim
of malpractice; is that correct?
Ms. Battalino. Malpractice and sexual harassment. However,
I was dismissed of the charge early on, before the final
determination and the final dismissal.
Mr. Barrett. The actual perjury occurred when you went to
the government to ask the government to pay your expenses or to
make sure that you could not be held personally liable; is that
correct?
Ms. Battalino. It was at one of the certification hearings.
Mr. Barrett. Under the Federal Tort Claims Act.
Ms. Battalino. Yes, that I misrepresented the truth.
Mr. Barrett. And you had initiated that, you had gone to
the government?
Ms. Battalino. It was an appeal, yes.
Mr. Barrett. Thanks. I just wanted to make sure that I
understood that.
Mr. Scott. I didn't understand. Could you ask the question
again? I didn't quite understand the answer.
Mr. Barrett. The question was, for the doctor, under the
Federal Tort Claim Act, because she was a Federal employee, the
government would in certain circumstances cover her expenses
and hold her immune from personal liability. I understand that
you had requested, you had taken the step to have that happen?
Ms. Battalino. That is correct. They had already certified
me for the June 27, 1991 date. We were appealing to have that
coverage extended through the whole claim of sexual harassment,
which was dismissed.
Mr. Barrett. I just want to make sure that I understood
that. I do think that this is an important hearing because it
does show that healing is part of the process. Unfortunately,
as you can probably glean from the proceedings today, although
this is far tamer than we have seen in the past, this committee
has not begun the healing process and Congress has not begun
the healing process, and I think that that is something that
the American people desperately want.
Ms. Battalino. Yes.
Mr. Barrett. I have talked to probably thousands of people
now in my district and from around the country and there are
people who hate the President and hate what he did. There are
people who support the President. But the common thread that I
hear over and over again is that the American people want this
chapter of history behind us. And I don't know that we have
come to grips with that.
When I hear that later today we may be expanding this probe
into matters that the Government Reform and Oversight Committee
has already investigated and we are going to continue that, I
think that that shows you that we are not there yet. I am
optimistic. The Chairman did promise me that we would complete
this by early January when my wife was expecting. Mr. Chairman,
I want you to know that we are still kicking around the names
Henry for a boy and Henrietta for a girl, depending on whether
you keep to that promise. But I think we can do it. I think we
have to do that. We have to get beyond this. I think that we
can do that. I am certain that the new Speaker, Bob Livingston,
does not want to have the first vote that is taken under his
leadership as Speaker to be whether this is going to continue.
So the question is how to resolve this and the question is
how do we do it when the vast percentage of American people
think that what the President did was wrong. The President has
acknowledged it, just as you have acknowledged it, that what
you did is wrong. But there are misgivings with the political
process and the part that the political process plays in this,
because we are trying to determine for the first time in this
country's history whether we are going to impeach and remove
from office a President of the United States.
Obviously we have had an impeachment of a President, of
President Johnson, but we have never had a removal. So there is
gravity that is attached to this issue that I don't think has
been reflected in these hearings, and I think that that is
unfortunate.
I again remain hopeful that we can do that, but I haven't
seen great signs of evidence. I think it is also important to
note, as several others have, that no person should be above
the law. We hear that over and over again, and I agree with
that. What we don't hear as often is that President Clinton,
once he leaves office, can be charged with the same offenses
that you were charged with, and if he takes it to trial or he
enters into an agreement, it would be resolved. But President
Clinton is not above the law and should not be above the law.
If he has done something criminally wrong and it is proven in
court after he leaves office, then he has a debt to pay to
society.
But it is my hope, and I think the hope of most American
people, that we can resolve this issue and get back to the
issues that the people in America care about.
I yield back my time.
Ms. Jackson Lee. Will the gentleman yield?
Mr. Barrett. I would like to yield to the witness, quickly.
Ms. Parsons. I resigned in the middle of a season. We were
ranked second in the Nation, 7-0, kind of like the economy,
doing very well. That team went out of the top 20, a number of
them transferred, the program has never been the same. When you
remove the leader, sometimes you have things that are going to
happen that you may not want.
You made a very good point. Timing is an issue in any
resignation or any proceedings related to the leader. And I
appreciate that, because I sense that one thing we don't need
right now is to not have a leader in a world where leadership
matters.
Mr. Barrett. If I could have 30 seconds, Ms. Jackson Lee
asked me to yield to her.
Ms. Jackson Lee. Mr. Barrett, I simply want to add to a
comment that you made that it is time to heal this Nation. As
you have talked to so many of your constituents, I have heard
from so many people acknowledging what we have all
acknowledged, frankly: What the President did was absolutely
wrong.
But how can we constitutionally move to a point of healing?
And frankly I think we have the tools to do so. I hope that we
will consider rebuking, reprimand or censure, and I hope that
we will try to heal the Nation. These ladies represent healing.
Mr. Hyde. The gentleman's time has expired.
Ms. Jackson Lee. I thank Mr. Barrett very much.
Mr. Hyde. The gentleman from Arkansas, Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman. I want to express
my appreciation for the spirit of the comments of the gentleman
from Wisconsin. He did make one reference, and Mr. Rothman from
New Jersey did as well, that the President, like everyone else,
can be held accountable in a criminal fashion for prosecution
during his tenure or after he leaves office. Mr. Dershowitz is
going to testify later, and I think he has indicated that such
prosecution probably would not happen. I too think it is very
doubtful. I think in theory it is within the realm of
possibility, but in a practical sense, I doubt it will happen.
And so I have to come back to the responsibility of this
committee to deal with the consequences of any actions we find
of the President.
I want to come back to the witnesses and thank both of you
for being here. Each of your testimonies illustrates in very
human terms that there are consequences of our actions and
decisions in life. Teenagers learn this and we continually
learn it through adulthood. But there will also be consequences
of the decisions of this committee. It has been pointed out
before that our decision will have an impact on the institution
of the presidency, and will likely have an impact on the future
conduct of elected officials, whatever we decide. But I think
your testimony points out other considerations, for example
that there is a principle of equal justice and that our
decision very likely will impact upon that principle. That
principle of equal justice ensures that whether a doctor, a
lawyer or a basketball coach, we are all expected to obey the
requirements of the law, and if not, there should be equal
treatment under the law. I think your testimony addressed that
point, and even though it might not certainly resolve all the
decisions that we make, it puts it in perspective and helps us
in this process.
Our debate on the President is a little bit different
because we are talking about impeachment, a constitutional
remedy. I understand that it is different. But still your
testimony helps balance the impact of the consequences of what
we will do and the decision that we will make.
There has been talk that perjury is not always pursued, and
I think that is true, but I also think it is so critically
important. I remember on a couple of occasions being in the
courtroom with a Federal judge, and the Federal judge hears the
testimony of a witness, and the judge knows that the witness is
lying, and the judge directs the U.S. Attorney to open a case
and either to pursue contempt proceedings against that person
or to pursue a criminal investigation for perjury. And so I
have not seen any Federal judges that treat perjury lightly,
nor should they.
There have been cases cited from different States, but in
Arkansas, we have people in prison, as I speak, for perjury.
Two defendants in 1997, on average, got 62 months in jail for
perjury. Not all of them received prison time. Some were fined.
Some were given probation. There are also cases in my State
that deal with the issue of perjury at the State level and not
just the Federal level.
And so I think it is not something we just dismiss. It is
not something we say, ``Everyone does it.'' And whatever we
decide in this committee is going to have consequences. Our
responsibility, my responsibility, is to determine the facts
and apply the law and the Constitution. That is the same thing
any jury has to do in any courtroom. We can call witnesses,
yes, we can do that, but we are trying to balance streamlining
these procedures and getting it done with hearing the facts.
I have spent a lot of time, I know other Members of the
committee have as well, reviewing the grand jury transcripts
and reviewing the evidence before us, and we can make these
decisions but we have to concentrate upon the facts and apply
the Constitution. There is room for sincere debate here. I am
interested in the debate that is going to be forthcoming in
this committee and I hope that everyone will withhold judgment
until we hear the debate, and we hear each other's points of
view.
Finally, I do want to ask a question of the witnesses
today. Each of you have been convicted of lying under oath and
I think each of you has expressed remorse or regret about that.
My question to you is: When you lied under oath, how did you
justify that, in your own mind at that time? Dr. Battalino.
Ms. Battalino. I think, as I have mentioned earlier, the
main justification that I pursued was that the civil lawsuit
was not well grounded, was not accurately grounded, and that in
order to save embarrassment for myself and my profession, that
I was justified in misleading and misrepresenting the complete
truth.
Mr. Hutchinson. Your justification was that the civil suit
was not well grounded. In hindsight, after you have been
punished for that perjury, what is your view of that?
Ms. Battalino. Oh, that was very poor judgment on my part.
I would like to state that the consequences of a misjudgment
should be significant. It shouldn't be something that is
dismissed lightly and all that is required is to say, ``Well,
I'm sorry, I made a mistake, I didn't tell the full truth.''
Mr. Hyde. The gentleman's time has expired. The gentleman
from Massachusetts, Mr. Meehan, do you desire time?
Mr. Meehan. Thank you, Mr. Chairman, just briefly. I was up
in my office watching the testimony of both of you, and I give
you both credit for coming before the committee and telling
your story, which I am sure can be difficult to do. I am
curious, because oftentimes this has been a pretty politically
charged atmosphere and you may have noticed the debate over the
period of the last few months has been pretty political, and a
lot of times those of us on the Minority side don't get a
chance to find out who is going to be called as a witness until
the press tells us; or, like last night, I got a call late
about who the subpoenas were going to be. So it is a pretty
political atmosphere here.
I am just curious how you guys got to be contacted. Did
somebody call you guys about testifying, or how did that work?
Did you volunteer? Who contacted you? How did you end up coming
before the committee?
Ms. Battalino. I was invited by one of the--my attorney got
a call from one of Mr. Hyde's aides, asking whether or not I
would be willing to come and be here as a witness.
Mr. Meehan. Ms. Parsons, how did that--was it the same way
with you?
Ms. Parsons. I got a call. But also, you know, I heard from
the media. I didn't know for sure I would be here either. They
were asking me before I knew. So I know how you feel.
Mr. Meehan. I am on the committee and I don't know.
Ms. Parsons. It wasn't like it was some big thing. It was
like, could you tell about perjury if you wanted to?
Mr. Meehan. Right. In either one of the cases, neither one
of you were convicted or charged with treason or bribery or
high crimes and misdemeanors, right?
Ms. Parsons. It didn't get that far.
Ms. Battalino. We don't merit those.
Mr. Meehan. Mr. Chairman, no further questions.
Mr. Hyde. Thank you. The gentleman from Indiana, Mr. Pease.
Mr. Pease. Thank you, Mr. Chairman.
Ms. Parsons and Dr. Battalino, I suppose it is evident by
now that there are a number of things happening before this
committee throughout this matter and in our hearing today.
Sometimes it seems that we talk at you instead of with you, or
to each other and not with you at all. To the extent that may
in fact or appearance lead you to conclude that your being here
today is insignificant or incidental or unappreciated, I
apologize for that. I want to express my gratitude for your
courage in being here. There is nothing I can add to your
testimony, so I will content myself with at least not adding
further to your discomfort, and instead I will yield my time to
the gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. I thank the gentleman for yielding. I just
briefly want to respond to the gentleman from Massachusetts,
Mr. Delahunt, regarding the presumption of innocence.
And I would say to him that I think everybody in this room
believes and recognizes that everyone in this country,
including the President of the United States, is entitled to a
presumption of innocence. However, I would say to him that the
committee has before it very substantial evidence of many
instances of perjury, and it is that evidence upon which the
committee will have to base its decision, and when that takes
place what we are going to be confronted with is a situation
where the President has the opportunity to come forward and
offer rebuttal testimony. And so far, the President and his
attorneys have chosen largely not to do that.
And so that is the concern that I have. If the President
has that kind of evidence to rebut perjury, he should step
forward and do so, because we do have substantial evidence
before us, and we will have to evaluate the evidence that we
have.
Mr. Delahunt. Will the gentleman yield?
Mr. Goodlatte. Yes, I yield to the gentleman.
Mr. Delahunt. I want to thank you, because I think it is
important to draw the contrast here and I respect the
gentleman's position. But I think if we go back to the single
precedent that occurred in this century, this committee heard
direct evidence from individual witnesses. They were able to
evaluate, they were able to assess credibility, and they were
able to probe memories. There are many facts that are alleged--
there are many facts that are alleged that have clearly
different inferences that could be drawn, and I think we all
understand that those on the committee who have had the
opportunity to review the referral, I think it is important to
note----
Mr. Goodlatte. Reclaiming my time, I would say to the
gentleman, first of all, that in the other case that the
gentleman cites, the witnesses were all called by the President
and they were heard in executive session depositions. We did
not have an independent counsel statute at that time, the
independent counsel has done that work, nor has the President
requested that those witnesses be brought forward for him to
cross-examine them.
And I would yield my time back to the gentleman from
Indiana.
Mr. Delahunt. If I could ask the indulgence of the Chair.
Mr. Hyde. Well, this time belongs to Mr. Pease, who yielded
to Mr. Goodlatte, who has yielded back, so now Mr. Pease has
the time.
Mr. Delahunt. Mr. Pease, would you be kind enough to yield?
Mr. Pease. I will yield to my colleague from Massachusetts
for purposes of a response to the question.
Mr. Delahunt. I thank the gentleman. I think it is
important that we note that in the committee report crafted by
Mr. Schippers, counsel for the Majority, and I am quoting,
``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 light of all the other
evidence.''
I would suggest that simply accepting a report from Mr.
Starr does not meet that particular standard. And I thought it
was fascinating when Mr. Starr himself testified that he
acknowledged that he had never been present at a grand jury
proceeding, with the exception of the President's testimony;
had never participated in any of the interviews conducted by
the FBI agents; and, in fact, had never met Monica Lewinsky. I
daresay that we are abdicating our responsibility if we simply
accept the transmittal from the independent counsel, and I
disagree with my friend from Virginia that that constitutes
evidence.
I yield back.
Mr. Chabot. Will the gentleman yield?
Mr. Pease. I yield to the gentleman from Ohio.
Mr. Chabot. Real quickly. We could call more and more and
more witnesses. We are trying to get this wrapped up as
expeditiously as possible. I think both sides want to do that.
If we call more witnesses and drag this on into next year, then
they are going to scream because they say we are on a fishing
expedition, we have already got enough evidence. I think we are
trying to do this properly. I think Chairman Hyde has led this
committee in a very expeditious manner, in a very fair manner.
I commend Chairman Hyde for doing that, and I yield my time
back to the gentleman from Indiana.
Mr. Pease. I yield back the balance of my time.
Mr. Hyde. I thank the gentleman. Mr. Cannon of Utah.
Mr. Cannon. Thank you Mr. Chairman. First of all, I would
like to associate myself with the statement by Mr. Goodlatte
who set forth the many times the President has apparently lied
under oath. I would like to thank the witnesses for coming here
today. They exemplify the importance of what we are
investigating in this committee. In case my Democratic
colleagues, the American public, and the media have not yet
figured it out, let me say this investigation is about perjury
and obstruction of justice. It is not about Monica Lewinsky. It
is about perjury. This is not about Paula Jones. It is about
perjury. This is not about Ken Starr. It is about perjury.
As these witnesses demonstrate and as the actions of the
Clinton Justice Department have proven, perjury is a serious
crime. As every American knows and as these witnesses have
shown here today, perjury undermines the American system of
justice. Perjury violates the rule of law. Perjury is
subversion of government. Perjury is a cancer which must be
removed for society to heal itself. Perjury is an impeachable
offense. We owe it to the witnesses who are currently being
published for perjury to assure that no man is seen to be above
the law or becomes an example to all Americans that they can
violate the law. No matter how popular, no matter what the
polls say, no matter how vilified the investigation has become,
no man is above the law. If we establish that the President
committed perjury, we are duty bound to act. Whether or not the
President's supporters on this committee or elsewhere
hypocritically choose to turn a blind eye to justice, we are
bound to act to uphold the rule of law. Again I thank the
witnesses for being here today, and I yield back the balance of
my time.
Mr. Hyde. I thank the gentleman. Mr. Rogan from California.
Mr. Rogan. Mr. Chairman, thank you. For the last 11 months
our country, as well as the committee, has been treated to a
litany of law professors, Members of Congress, attorneys, and
talk-show guests explaining to us that perjury somehow is no
longer important or doesn't have significance. And the purpose
of this hearing, as I understood it, Mr. Chairman, is so we
could shed some light on that preposterous concept.
During my days as a judge, had a lawyer ever appeared in my
court and made such a suggestion, I would have been on the
phone immediately with the State Bar to inquire as to the
status of his or her law license. Having said that, Dr.
Battalino, your case intrigues me.
I want to make sure I understand the factual circumstances.
You lied about a one-time act of consensual sex with someone on
Federal property; is that correct?
Ms. Battalino. Yes, absolutely correct.
Mr. Rogan. This act of perjury was in a civil lawsuit, not
in a criminal case?
Ms. Battalino. That's also correct.
Mr. Rogan. And, in fact, the civil case eventually was
dismissed?
Ms. Battalino. Correct.
Mr. Rogan. Yet despite the dismissal, you were prosecuted
by the Clinton Justice Department for this act of perjury; is
that correct?
Ms. Battalino. That is correct.
Mr. Rogan. I want to know, Dr. Battalino: During your
ordeal, during your prosecution, did anybody from the White
House, from the Clinton Justice Department, any Members of
Congress, or academics from respected universities ever show up
at your trial and suggest that you should be treated with
leniency because ``everybody lies about sex''?
Ms. Battalino. No, sir.
Mr. Rogan. Did anybody ever come forward from the White
House or from the Clinton Justice Department and urge leniency
for you because your perjury was only in a civil case?
Ms. Battalino. No.
Mr. Rogan. Did they argue for leniency because the civil
case in which you committed perjury was ultimately dismissed?
Ms. Battalino. No.
Mr. Rogan. Did anybody from the White House ever say that
leniency should be granted to you because you otherwise did
your job very well?
Ms. Battalino. No.
Mr. Rogan. Did anybody ever come forward from Congress to
suggest that you were the victim of an overzealous or sex-
obsessed prosecutor?
Ms. Battalino. No.
Mr. Rogan. Now, according to the New York Times, they
report that you lied when your lawyer asked you at a deposition
whether ``anything of a sexual nature'' occurred; is that
correct?
Ms. Battalino. Yes, that is correct.
Mr. Rogan. Did anybody from Congress or from the White
House come forward to defend you, saying that that phrase was
ambiguous or it all depended on what the word ``anything''
meant?
Ms. Battalino. No, sir. May I just--I am not sure it was my
lawyer that asked the question, but that is the exact question
that I was asked.
Mr. Rogan. The question that was asked that caused your
prosecution for perjury.
Ms. Battalino. That's correct.
Mr. Rogan. No one ever argued that that phrase itself was
ambiguous, did they?
Ms. Battalino. No.
Ms. Waters. Will the gentleman yield?
Mr. Rogan. Regrettably, my time is limited and I will not
yield for that reason.
Now, Doctor, you lost two licenses. You lost a law license.
Ms. Battalino. Well, I have a law degree. I was not a
member of any bar.
Mr. Rogan. Your conviction precludes you from practicing
law?
Ms. Battalino. That is correct, sir.
Mr. Rogan. You also had a medical degree and license.
Ms. Battalino. That is correct.
Mr. Rogan. You lost your medical license?
Ms. Battalino. Yes. I am no longer permitted to practice
medicine either.
Mr. Rogan. Did anybody from either the White House or from
Congress come forward during your prosecution, or during your
sentencing, and suggest that rather than you suffer the severe
punishment of no longer being able to practice your profession,
perhaps you should simply just receive some sort of rebuke or
censure?
Ms. Battalino. No one came to my aid or defense, no.
Mr. Rogan. Nobody from the Clinton Justice Department
suggested that during your sentencing hearing?
Ms. Battalino. No.
Mr. Rogan. Has anybody come forward from the White House to
suggest to you that in light of circumstances, as we now see
them unfolding, you should be pardoned for your offense?
Ms. Battalino. Nobody has come, no.
Mr. Rogan. Are you going to ask for a pardon? Have you
thought about that?
Ms. Battalino. That is a difficult question. Certainly I
want to assume full responsibility for the fact--for the
reality that I did commit a crime and that it was wrong to do
and I deserve to pay consequences for it. However, if indeed,
as you suggest, some of the reasoning that has come up in terms
of some very specific points in my conviction, I certainly
would hope that if indeed there is no reason for anything less
than censure or more than censure to be expected, that
certainly I would hope that the administration would consider
leniency and pardon for me, yes.
Mr. Rogan. If the Congress of the United States ultimately
takes the position that lying under oath over such matters is
not an offense worthy of punishing a public official otherwise
sworn to uphold the law, and is not worthy of that person
potentially having their job placed in jeopardy, would you feel
that you were the victim of an unfair double standard?
Ms. Battalino. Yes, I would.
Mr. Rogan. Mr. Chairman, I see my time has expired. I thank
the Chairman.
Ms. Waters. Mr. Chairman.
Mr. Hyde. The gentleman from South Carolina, Mr. Lindsey
Graham.
Mr. Graham. Thank you, Mr. Chairman. That was a very well
done litany, explaining why it is a little calmer today. I
think my friend from South Carolina mentioned this fact. The
reason it is calmer today, we have real people who suffered
real consequences for something that we are all wrestling with.
I am going to put a little different spin on this. Both of you
pled guilty; is that correct?
Ms. Parsons. Yes.
Ms. Battalino. Yes.
Mr. Graham. Are you glad that you did?
Ms. Battalino. Absolutely.
Ms. Parsons. Absolutely.
Mr. Graham. Did the court consider your guilty plea in a
positive light? Do you think it helped the disposition of your
case?
Ms. Battalino. I think in my case, Judge Lodge did express
concern that I had suffered significant consequences, but
nonetheless felt that because of the Federal guidelines that he
was mandated to give me some serious consequences.
Mr. Graham. But it is my understanding that if one pleads
guilty, that is something the judge can consider in a positive
light.
Ms. Battalino. That is correct.
Mr. Graham. Is that true, Ms. Parsons?
Ms. Parsons. I believe that is very true.
Mr. Graham. Mr. Chairman, there was a case mentioned where
you came to bat for someone in Congress. Is it--isn't it true,
from my understanding of that case, that the gentleman in
question admitted every accusation against him?
Mr. Hyde. Yes.
Mr. Graham. All I want to say is it is easier to go to bat
for somebody when they recognize they are wrong. My friends on
the other side, this has been a good day for the committee.
This has been one of our better days. If you believe the
President of the United States did not commit perjury, I can
understand why you would not want to take this so far. Mr.
Schumer and myself are at the opposite ends of the political
spectrum, but I admire him greatly for saying that he believes
the evidence suggests the President lied under oath, but having
said that, he believes the underlying conduct is not something
you would want to overturn a national election about. I don't
know if an individual's case should be equated to overturning a
national election. For you it is very important as your
liberty. But I think we should have as our last resort
impeachment, not our first resort, but there are other
dispositions yet to come.
But let me tell you how I feel about the President. I feel
he lied under oath. I feel he is dancing on the head of a pin,
still. He is insulting my intelligence. Mr. Schumer wants to
conclude he lied under oath but not go forward. I respect that,
but I cannot live with that conclusion. I think the day we say
the President of the United States obviously commits perjury
before a Federal grand jury and is not subject to losing his
job is the day we redefine the presidency in terms of a law
that will damn this country later on. That is unacceptable for
me.
Mr. Schumer asked Mr. Livingston to help us. I am now
asking the President of the United States to help us. Mr.
President, if anybody on your behalf or you are watching this,
I ask you now to consider coming before the American people and
do what these two ladies have done, people convicted of crimes
who have served jail time, who are now being talked about in
terms almost of being American heroes. That is the goodness of
this country, that if you will own up to your mistakes, people
will go out of their way to forgive the sin. But if you, Mr.
President, continue to deny what I think is the obvious, in my
opinion you have forfeited the right to lead this country in
the next century. If you will own up and do what these two
ladies have done, I will go to bat for you.
I yield back the balance of my time.
Mr. Hyde. The gentlelady from California, Ms. Bono.
Ms. Bono. Thank you, Mr. Chairman. I simply want to thank
the witnesses for their testimony and say also, as my
colleagues have said, it is very courageous for you to be here
today. I think we have all learned some very, very valuable
lessons. But I cannot add any further questions that haven't
already been asked at this point, so I will yield the balance
of my time to my colleague from Indiana.
Mr. Buyer. I thank the lady for yielding. Dr. Battalino,
you weren't convicted of perjury, were you?
Ms. Battalino. No, one count of obstruction of justice.
Mr. Buyer. Obstruction of justice. Are you aware that the
President is also being--stands accused of obstruction of
justice in his civil case?
Ms. Battalino. Yes.
Mr. Buyer. Part of the allegations against the President
then with regard to obstruction of justice, because I want to
be clear, people have been referring to you as someone who
committed perjury, therefore you are convicted of perjury but
your conviction was for obstruction of justice.
Ms. Battalino. Yes, that is more accurate.
Mr. Buyer. So what we have is the President accused of
perjury but he also stands accused of obstruction of justice,
and it is because his obstruction occurred by his conduct and
actions in a civil case, a civil rights case, i.e., Jones v.
Clinton.
Ms. Battalino. Yes.
Mr. Buyer. As also part of the President's, I believe,
engaged in a pattern of obstruction in the Jones v. Clinton
case while it was pending, it was done in order to thwart those
proceedings. Earlier you had testified to some of my
questionings that you also engaged in this same pattern because
you attempted to thwart the legal proceedings; is that true?
Ms. Battalino. Yes, that is correct.
Mr. Buyer. And no matter what the motivation was, even
though you justified it in your mind as I listened to some of
the questioning, you could find no justifiable excuse?
Ms. Battalino. No, there is no justifiable excuse. No
honest legitimate justifiable excuse, no. My motives were of
self-interest, and I think that that is what is behind not
telling the complete truth. It is generally for self-interest.
Mr. Buyer. A lot of people, not only some on this committee
and in the press, they like to focus on a young lady by the
name of Monica Lewinsky, but nobody likes to talk about
Kathleen Willey. Kathleen Willey, who was an individual who was
a volunteer at the White House, it has been alleged, who went
to the President for a job and she alleged that there may have
been a sexual assault even by the President upon her, and that
she ended up getting a job. And then the real question is,
well, was there sexual harassment or not sexual harassment and
she got a job out of it? And there seems to be this pattern of
rewarding the ``Jane Doe's.'' And Kathleen Willey was also a
witness in that Jones v. Clinton case, and so the committee has
also been looking into other witnesses, and I am citing here an
Associated Press piece of Monday, November 30. This Associated
Press piece discussed that during a private session with
impeachment investigators, a Democrat operative, Nathan Landow,
invoked the fifth amendment over 70 times. This is an
individual who has been accused of having--trying to develop a
relationship with Kathleen Willey to prevent her from
cooperating not only in the Jones case but coming forward about
the allegations of sexual harassment, which also there is
another witness out there against the President who for some
reason people don't want to talk about, because they want to
keep in front of people's minds, oh, this is a case about the
President's affair with Monica Lewinsky.
No, this is a case about obstruction of justice and denying
someone equal access to the courthouse door. Even the powerless
and the poor and the needy gain access to the courthouse door,
and it is never meant to be manipulated by the powerful.
So I want to thank both of you for coming and your
testimony here today and I thank the gentlelady from California
for yielding me this time. I yield back her time.
Ms. Waters. Mr. Chairman.
Mr. Hyde. The gentlelady from California.
Ms. Waters. I would like to ask for unanimous consent to
raise a point of clarification. I have been sitting here trying
to figure out what is the crime for having sex with someone in
the workplace. And I guess there is something else going on
here. The person was a patient; is that right?
Ms. Battalino. The person was a patient of the VA. He was
not my particular patient.
Ms. Waters. But he was a patient in the hospital. And the
loss of your license had to do with professional standards?
Ms. Battalino. Incorrect. It had to do with the fact that I
was convicted of a felony.
Ms. Waters. Are you a psychiatrist?
Ms. Battalino. That is right.
Ms. Waters. And it had nothing to do with the fact that
there was sexual relations with a patient?
Ms. Battalino. No, it did not. I was dismissed from that
charge. And the case itself, the whole sexual harassment
accusation was dismissed.
Ms. Waters. It was a sexual harassment case?
Ms. Battalino. Correct.
Mr. Hyde. The committee has finished questioning this
panel; and before you both leave, I sincerely want you to know
what a great contribution you have made to our understanding of
a very tough issue. And we have not only read about it, now we
have seen it and listened to it, and we understand it a lot
better. Thank you for your bravery and your cooperation.
Ms. Battalino. Thank you.
Mr. Hyde. Now, the committee is going to recess subject to
the call of the Chair, and the committee will stay here,
because we are going to meet for the purposes of conducting
business pursuant to the notice. Mr. Conyers--we are going to
discuss some subpoenas, and we need authority from the
committee to issue them. I will be more detailed in a moment.
Mr. Delahunt. Mr. Chairman, if you would indulge me, I
would like to welcome two natives of the Commonwealth of
Massachusetts.
Mr. Hyde. Surely.
Mr. Delahunt. I would like to welcome the former Attorney
General of the Commonwealth of Massachusetts and the former
Attorney General of the United States, Mr. Richardson, for whom
I have great respect.
I also want to welcome a friend of mine from Cambridge,
Massachusetts, who works over at Harvard University, Professor
Dershowitz.
Mr. Dershowitz. Nobody works at Harvard University.
Mr. Hyde. They study.
I am somewhat reluctant to start without a better
complement. I hate to keep you waiting. You have already waited
so long. Some of the Members will come straggling in, I
daresay. So we will resume.
Again, your patience has been saintly. We thank you very
much.
On our second panel we have nine witnesses who will give us
a variety of perspectives on the consequences of perjury and
related crimes. The panel consists of Federal judges, a former
Attorney General, retired military officers, legal scholars,
and this morning we had the other panel of people who have
actually been convicted of these crimes.
Let me note at the outset that all of these witnesses are
appearing in their personal capacities and none of their
statements should be construed as expressing the views of any
organizations with which they might be associated.
Our first witness is the Honorable Gerald B. Tjoflat, a
U.S. Circuit Judge on the U.S. Court of Appeals for the
Eleventh Circuit.
Judge Tjoflat is a graduate of the University of Cincinnati
and Duke University School of Law. His law school tenure was
interrupted by 2 years' service as a special agent in the U.S.
Army Counterintelligence Corps.
After law school, Judge Tjoflat practiced law in
Jacksonville, Florida, for a number of years. He took the bench
in 1968 as a Circuit Judge on Florida's Fourth Judicial
Circuit. In 1970, he was appointed to the U.S. District Court
for the Middle District of Florida. In 1975, he was appointed
to the U.S. Court of Appeals for the Fifth Circuit; and when
Congress split the Fifth Circuit, he went to the newly created
Eleventh Circuit. He served as Chief Judge for the Eleventh
Circuit from 1989 until 1996.
In addition to his court duties, he is active in local and
national community service, educational, and professional
development organizations. He received the 1996 Fordham-Stein
Prize, a national prize that recognizes positive contributions
of the legal profession to American society.
Next to Judge Tjoflat is the Honorable Charles Wiggins, a
man who served on this committee for many years. He is now a
Senior U.S. Circuit Judge on the U.S. Court of Appeals for the
Ninth Circuit. Judge Wiggins is a former colleague and a dear
friend. We are particularly pleased to have him here today. He
graduated from college and law school at the University of
Southern California and served two tours as an infantry officer
in the U.S. Army.
He began his law practice in El Monte, California, in 1957,
where he also served in a variety of local elected offices. In
1966, he was elected to the U.S. House of Representatives,
where he served with distinction on this committee during the
impeachment inquiry of President Nixon, and he played a very
vital role in that hearing.
Judge Wiggins left Congress in 1978, returned to private
practice until 1984 when he was appointed to the Ninth Circuit,
and he has served on that court since that time.
Is Mr. Conyers here?
We will skip you, Judge Higginbotham, only because Mr.
Conyers wants the honor of introducing you. It is not out of
disrespect.
Our next witness is the Honorable Elliot Richardson.
Mr. Richardson is a graduate of Harvard College and Harvard
Law School. After law school, he clerked for Judge Learned Hand
of the Second Circuit and Supreme Court Justice Felix
Frankfurter.
Throughout his distinguished career, he has served in
numerous public positions, including Secretary of Health,
Education and Welfare; Secretary of Defense; Attorney General
of the United States; Secretary of Commerce; and Ambassador to
the Court of St. James. That is a resume.
In 1992, he retired as a senior partner in the Washington
office of the law firm Milbank, Tweed, Hadley & McCloy. In
January of this year, President Clinton awarded him the
Presidential Medal of Freedom.
Now I will yield to John Conyers for purposes of
introducing Judge Higginbotham.
Mr. Conyers. Thank you, Mr. Chairman.
A. Leon Higginbotham, Jr., started out as a President
Kennedy appointee to the FTC. He had finished Antioch, Yale Law
School, Harvard, University of Michigan, New York University,
University of Pennsylvania. I counted them. He has 62 honorary
degrees from universities.
He has written extensively, particularly about race
relations in America and how the justice process has impacted
it. He is currently writing his biography and other writings.
He has been so helpful in the civil rights movement across the
years.
He is presently Professor of Jurisprudence at Harvard and
the John F. Kennedy School of Government, of counsel to Paul,
Weiss, Rifkind, Wharton & Garrison in their New York and
Washington offices, and a former Circuit Judge and Chief Judge
of the U.S. Court of Appeals for the Third Circuit.
We are delighted that you, as well as all of the
distinguished members here, could stay with us for this lengthy
period today.
Thank you, Mr. Chairman.
Mr. Hyde. Thank you, Mr. Conyers.
Our next witness is Admiral Bud Edney, who retired from the
U.S. Navy in 1992 after 39 years of service. He is a graduate
of the U.S. Naval Academy and has a Master of Public
Administration degree from Harvard University.
A naval aviator, he has logged over 5,600 carrier flight
hours and flown 350 combat missions. During his career, his
assignments included command of a carrier air wing, command of
the aircraft carrier U.S.S. Constellation, and command of a
carrier battle group. He also served as commander of all U.S.
forces in the Atlantic and Commandant of Midshipmen at the U.S.
Naval Academy.
He concluded his career as Supreme Allied Commander of NATO
forces in the Atlantic and Commander in Chief of the U.S.
Atlantic Command, following his service as Vice Chief of Naval
Operations and Chief of Naval Personnel.
Since his retirement, he has served as a member of the
Defense Department's Roles and Mission Commission, as a senior
fellow at the Center for Naval Analysis, as a director of the
Retired Officers Association, and a director of Newport News
Shipbuilding. He presently teaches ethics at the Naval Academy,
holding the Distinguished Leadership Chair.
Our next witness is Lieutenant General Thomas Carney, who
retired from the U.S. Army in 1994 after 35 years of service.
He is a graduate of the U.S. Military Academy and has a
master's degree in operations research and systems analysis
from the Naval Postgraduate School.
Just before his retirement, he served as the Army's Deputy
Chief of Staff for Personnel. In that position he was
responsible for developing all plans, policies, and programs
for the management of the Army's military and civilian
personnel. Prior to holding that position, he commanded the
Army's Recruiting Command, where he was responsible for the
Army's efforts to recruit new soldiers.
General Carney has also held a number of combat commands,
including serving as Commander of the Fifth Infantry Division
and Assistant Commander of the 82nd Airborne Division.
An airborne qualified Ranger, he served two tours of duty
in Vietnam, was awarded two Distinguished Service Medals, three
Legions of Merit, three Bronze Stars, the Combat Infantryman's
Badge for coming under fire in combat, and a Combat Jump Star
for making a parachute jump into combat.
Since his retirement, General Carney has served as an
independent management consultant to the Shell Oil Company, the
Delaware Port Authority, the Deloitte & Touche accounting firm,
and the National Academy of Public Administration.
Most recently, he served as the Deputy Librarian of
Congress, where he acted as chief executive officer of the
world's largest library.
Our next witness is professor Alan Dershowitz, the Felix
Frankfurter Professor of Law at Harvard Law School.
Professor Dershowitz is a graduate of Brooklyn College and
Yale Law School. After law school, he clerked for Chief Judge
David Bazelon of the D.C. Circuit and Supreme Court Justice
Arthur Goldberg. Since that time, he has taught at Harvard Law
School.
He has authored dozens of books and articles on various
subjects, and he has represented numerous high-profile clients,
including O.J. Simpson, Mike Tyson, and Claus von Bulow.
Our next witness is Professor Stephen Saltzburg, the Howrey
Professor of Trial Advocacy, Litigation and Professional
Responsibility at George Washington University Law School.
Professor Saltzburg is a graduate of Dickinson College and
the University of Pennsylvania Law School. After law school, he
clerked for Judge Stanley Weigel of the U.S. District Court for
the Northern District of California and Supreme Court Justice
Thurgood Marshall. He taught at the University of Virginia Law
School for many years before moving to George Washington in
1993.
He has also served as Deputy Assistant Attorney General for
the Criminal Division and an Associate Independent Counsel. He
has published numerous articles in the field of criminal law.
Our next witness is Professor Jeffrey Rosen, an Associate
Professor of Law at George Washington University Law School.
Professor Rosen is a graduate of Harvard College and Yale
Law School. After law school, he clerked for Chief Judge Abner
Mikva of the D.C. Circuit.
In addition to his teaching duties, Professor Rosen is the
Legal Affairs Editor of the New Republic and a staff writer for
the New Yorker. He has authored numerous published articles.
We will begin with Judge Tjoflat.
It would be helpful if you could hold your remarks in chief
to about 5 minutes. We will have the light on. If you go over,
I certainly am not going to cut you off. But we have a big
panel, and we have an inquiring membership up here.
Judge Tjoflat.
STATEMENT OF HON. GERALD B. TJOFLAT, U.S. CIRCUIT JUDGE, U.S.
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, JACKSONVILLE, FL
Judge Tjoflat. Thank you, Mr. Chairman.
As you indicated before you began the introductions, none
of us here appears in behalf of any group, so I don't appear in
behalf of the judicial branch or the judges of the Eleventh
Circuit. I appear alone.
The views I express on the subject of the consequences of
perjury and related crimes are my own views, though I think
they are shared in general, as my own opinion, by most judges
and probably by most of the Members of this committee. I am not
here to suggest what the committee should do however.
Mr. Hyde. Your Honor, Mr. Conyers.
Mr. Conyers. Mr. Chairman, with all due fairness to our
sitting judges here, I want to explain to you that we have the
cannons, we have the advice from the experts, and the fact that
you are indicating your own individual views are not
exculpatory at all. And so, if you want, I will send down to
you the ABA Code of Judicial Conduct, Cannon 3(b)9. That
doesn't talk about your views.
We know you are not representing anybody but yourself. But,
as a sitting judge, you are still under the Code of Judicial
Conduct which precludes sitting judges from commenting on
pending matters. Aware?
Judge Tjoflat. I am fully aware. It is not my intent to
comment on the merits of the matter before this panel.
Mr. Conyers. I just wanted to bring this to your attention,
sir.
Judge Tjoflat. I am fully familiar with the cannons, and I
appreciate your citing them.
The system of justice depends on three things in order to
function as its framers intended. The first thing is an
impartial judiciary. It is absolutely imperative that whoever
is on the bench in a matter be impartial. The second thing that
is indispensable to the administration of justice is a bar of
lawyers who are committed to adhering to the code of ethics at
all times, in all matters. And the third thing that is
indispensable to the administration of justice is the oath
taken by witnesses.
Those three things together under our system produce
justice. It is like a three-legged stool in a way. If one of
the legs or two of the legs break, then the stool collapses.
To the extent that this situation permeates the system,
either because the oath is not obeyed or because lawyers do not
adhere to the cannons of ethics or because judges don't carry
out their oaths of office, disrespect for the rule of law is
bred and the people mistrust the system. And when they do that,
they resort to other means of resolving their disputes.
Now, today's hearing focuses on the third element, and that
is the oath. In particular, what effect perjury has on the
system of justice.
One way to illustrate what perjury can do to the
administration of justice is to imagine a pool of water, a
pond, and you drop a pebble into the pond, and the pebble is
perjury, let us say, and it creates a ripple effect. The extent
of the ripple effect depends on the extent to which the perjury
is material, is important to the matter under inquiry, to the
truth-seeking process.
Now, what happens with the ripple effect is that perjury of
that sort implicates the judicial system and the parajudicial
system, we will call it. It may require--for example, if it
occurs in a case that is on trial, it may require a continuance
of the case. It may require a mistrial. It may require more
discovery.
In a criminal case, it could likewise produce the same
effect, a mistrial, require a continuance.
If it is a pretrial proceeding of some sort, other
machinery of the courts may have to be brought into play,
because the natural tendency is to counteract perjury with
other evidence in order to shed light on the truth. And when
that occurs, the courts are taxed in the sense that they cannot
be made available to other litigants who are standing in the
pipeline ready to be served. The courts have to expand
themselves and their processes to accommodate the perjury, and
that is called obstruction of justice. The perjury in that
circumstance impedes the due administration of justice. It
causes, as I say, delay and expenditure of judicial resources,
and it precludes a summary disposition many times of cases.
With that, Mr. Chairman, I will conclude my opening
remarks. I am sure there will be questions later.
Mr. Hyde. Very well. Judge Wiggins.
STATEMENT OF HON. CHARLES E. WIGGINS, SENIOR U.S. CIRCUIT
JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, LAS VEGAS,
NV
Judge Wiggins. Thank you. Thank you, Mr. Chairman.
I want to make it clear that I am appearing as an
individual at the request of Chairman Hyde, that I am appearing
today as an individual and not as a member of the Ninth
Circuit. I am appearing here at the request of Henry Hyde, your
chairman, and I am honored to be here in his company today.
I have a problem. I am just about blind, and I can't read
my remarks, but I have prepared remarks, and I have submitted
them. If you have questions of me, I will be sure that they are
written down, and I will respond after I get back to my
magnifying machine that permits me to read.
Well, the question asked by Chairman Hyde was whether I
would state my views concerning the impeachability of perjury
and obstruction of justice, and that is an easy question to
answer. Of course, they are. They are impeachable. And I don't
think there should be any debate on that subject.
The debate should occur ultimately before the House of
Representatives, ultimately, on whether or not the President
should be impeached. There is no question he is vulnerable. I
think that that indicates to the committee what its
responsibility is.
Is there probable cause to believe that President Clinton
has committed impeachable offenses, namely perjury and
obstruction of justice? We can question the legitimacy of the
testimony, but I think there is little doubt, little doubt,
that the President is vulnerable, could be impeached.
But that doesn't preclude a second judgment by you as a
Member of the House to vote in the public interest on the
question of whether the President should be impeached. That
question troubles me greatly. I believe that the committee is
within its responsibility to report articles of impeachment to
the House, as a matter of law and as a factual matter, too. I
confess that there are factual issues, too. I resolve those
questions in favor of the committee voting to impeach the
President but that doesn't preclude my second-guess.
As a full Member of the House when you are called upon, as
I think you will be, called upon to vote as a Member of the
House of Representatives, your standards should be the public
interest. I confess to you that I would recommend that you not
vote to impeach the President. I am not a fan of impeachment,
as you know. But I find it troubling that this matter has grown
to the consequence that it now occupies on the public screen.
When the President has lied--I think he has lied, but the
issue is whether the President should be impeached, and you are
ultimately going to be called upon to cast your vote in that
regard. I would urge that you not vote to impeach the
President.
I want to send some sort of clue to you on my own research
concerning the impeachability of offenses. I find it very
troubling that the Judiciary Committee seems to be willing to
impeach a President for such vague concepts as abuse of power.
I find that there is not any necessity that the President know
that his acts were impeachable, that he was abusing power at
the time he did them. That is true with respect to the Nixon--
President Nixon impeachment experience, and it is true today.
There is some talk about impeaching the President for abuse
of power. I think that is too vague. The President is entitled
to notice, some notice, that he is performing acts that are
wrong and that he did those acts notwithstanding that notice.
I think that the text of my remarks speak for themselves,
and I will stop at this time, Mr. Chairman.
Mr. Hyde. Thank you, Judge Wiggins.
[The prepared statement of Judge Wiggins follows:]
Prepared Statement of Hon. Charles E. Wiggins, U.S. Circuit Judge, U.S.
Court of Appeals for the Ninth Circuit, Las Vegas, NV
i
My name is Charles E. Wiggins. I am a senior judge on the U.S.
Court of Appeals for the Ninth Circuit. My chambers and residence are
in the city of Las Vegas, Nevada. I am appearing here this morning at
the request of Chairman Henry Hyde.
Before I begin, I wish to emphasize that I am appearing this
morning as an individual offering my personal views. I do not presume
to speak for the Ninth Circuit.
Also, I wish to advise the Committee that I am suffering from
diabetes and that it has affected my vision. I am unable to read my
remarks. However, I have prepared formal remarks for submission to the
Committee. I will be testifying from my memory of what is a part of my
formal submission to the Committee.
Two members of the present Committee may recall that I served as a
member of this Committee during the investigation of Richard Nixon,
some 25 years ago. It may be because of my previous experience that I
have been invited as a witness today.
First, I would like to define the scope of my intended remarks. I
will respond, of course, to the questions asked me by the Committee but
I should like to avoid the question that may be on the forefront of
your minds: whether President Clinton should be impeached.
As I see it, the responsibility for considering whether or not the
President should be impeached is the sole responsibility of the House
of Representatives. It will, possibly, indict the President for what it
believes to be high crimes and misdemeanors. The responsibility of this
Committee, as I see it, is much narrower. The Judiciary Committee is
charged by the House of Representatives of conducting an investigation
of the facts to ascertain whether or not there is probable cause to
believe that the President has committed a high crime or misdemeanor.
The affirmative response to that question is a necessary precondition
to a second vote by the full House of Representatives as to whether or
not the President should be impeached. I would like to confine my
preliminary remarks this morning to the first question: whether there
is probable cause to believe that the President has committed acts
which are fairly characterized as high crimes or misdemeanors.
Many of you, I suspect, are willing to leap immediately to the
second question of whether or not the President should be impeached. I
urge that you restrain yourselves for now and confine your present
interest to the first question.
ii
The facts concerning the President's misconduct are fairly simply
stated. The President was sued in a civil proceeding for sexual
harassment by Paula Jones. During the pretrial discovery, the court
authorized plaintiff's counsel to examine the President concerning his
involvement with other employees. Plaintiff's counsel wanted to conduct
the authorized discovery with respect to Monica Lewinsky. Miss Lewinsky
thereafter had a conversation with the President in which the President
advised her to prepare an affidavit and to deny that she had sexual
relations with him. Although the President has acknowledged that he had
an improper personal relationship with Miss Lewinsky, he requested that
Miss Lewinsky file a false affidavit in the Jones lawsuit.
Thereafter, the President was called as a witness before the grand
jury and he repeated his story that he did not have a sexual
relationship with Monica Lewinsky. Subsequently, the President
acknowledged that his story was false or misleading and that he in fact
had such a relationship with Miss Lewinsky.
I don't believe that any supporter of the President in these
proceedings would maintain that the President is innocent of misleading
the plaintiff's counsel in the deposition proceeding or before the
grand jury. In short, the President lied in his testimony before both
proceedings.
The question, then, is what is the House of Representatives to do
about these lies. Specifically, you have inquired of me whether or not
I believe the crimes of perjury and obstruction of justice give to the
Congress the right to try the public official for impeachable offenses.
It is clear that both perjury and obstruction of justice are
significant crimes. Both are felonies. A review of the impeachment
precedents indicate that at least one federal judge has been impeached
by the House of Representatives because he committed the crimes of
perjury and obstruction of justice. The absence of any contrary
precedents is important to me. There is simply no law prohibiting the
impeachment of the President for having committed the felony crimes of
perjury and obstruction of justice. That power to impeach the President
does not indicate that the President should be impeached; it merely
refers to the right of impeachment in the House of Representatives.
I have heard said that in the context of the crimes attributed to
President Clinton, the claim is made that they are so routine as to
properly be overlooked. I have no doubt that many Americans have lied
about their sexual escapades to their wives, but I am not so convinced
that the right to lie should be recognized before governmental bodies
charged with finding the truth. The grand jury was just such a
proceeding. The President evidently lied when he had been sworn to tell
the truth in proceedings before the grand jury. I don't believe that we
can ever condone a deliberate lie made when given under oath to tell
the truth. We should not condone the telling of a lie, but the issue
here is whether we should remove the President from office for telling
a lie.
iii
Given the facts in this case, what is the Congress to do about it?
I would recommend that the House Judiciary Committee confine its
attention to whether or not probable cause exists that the President
has committed an impeachable offense. I don't have any hesitancy in
finding that preliminary fact to be true and I don't think that many
members of this Committee would disagree with that assessment. When the
issue comes to a vote before the Committee, I would recommend that the
members of this Committee cast their votes consistent with the law that
the President is found to have committed a high crime or misdemeanor.
Thereafter the issue would go before the House and I don't know whether
a member of the House would be bound by the preliminary findings if he
had a conviction that the public interest would be served by not
impeaching the President. I tentatively would suggest that a member
should cast his or her ballot on what the member perceives to be the
public interest under the circumstances. But that does not mean that
this Committee should shirk its responsibility to find that the
President has committed an impeachable offense.
iv
I wish to comment briefly on the frequently stated notion that
perjury is tolerated when the underlying offense is sexual misconduct.
Nothing could be further from the truth. The substantive offense is
perjury, a felony. Whether the underlying offense is a crime or not is
immaterial. A defendant is not permitted to lie under oath with respect
to sexual pecadillos. That is the law in the Ninth Circuit and is the
law everywhere in the country.
But the further question before the Congress as a whole is whether
the President must be removed from office for lying about such
misconduct.
v
The essential prerequisite of an impeachable offense is that it be
fairly characterized as misconduct involving treason, bribery or other
high crimes and misdemeanors. There is considerable controversy in
applying those words. I suppose it will always be thus. However, let me
offer some guidelines to a finding of an impeachable offense.
First, I need not comment upon the crimes of treason or bribery.
They are not involved in this case. The answer to the question of
whether perjury or obstruction of justice is a high crime or
misdemeanor is a relatively simple one. Of course it is. Many persons
have been incarcerated for committing perjury in the context of
relatively minor sexual offenses and obstruction of justice has been a
commonly employed offense in such cases as well. Many men and women
have been charged and sentenced on such offenses. We should simply
acknowledge that perjury is a high crime and obstruction of justice is
as well. If we do acknowledge it to be so, then President Clinton is
not impeached as a result of such finding but he is vulnerable to
impeachment. He may be impeached by the House of Representatives if it
deems the offense to be sufficiently egregious.
As I view the impeachment process, the House Judiciary Committee is
not only charged with determining whether probable cause exists or to
find that the President has committed an impeachable offense. If you,
as a committee, conclude that perjury and obstruction of justice are
impeachable offenses, you may then proceed to the next question as to
whether probable cause exists to find that the President has committed
these acts. If you find that probable cause in fact exists, and the
offenses are impeachable, I think you have a responsibility to conclude
that the President should be impeached by the full House of
Representatives. I do not presume to tell members of this committee how
they should vote if called upon to vote as a member of the full House.
When the issue is presented to the full House of Representatives, I
do not believe that the full House is limited to a narrow legal
conclusion but can judge the matter in a broader sense. It may view the
question of whether the President is not only vulnerable, but whether
he in fact should be impeached.
Let me give you a few bench marks or guidelines that I find to be
significant in deciding whether misconduct is an impeachable offense.
First, we should recognize that the target of impeachment is an
individual, in this case the President of the United States, and as
such the misconduct attributed to him should not be the misconduct of
an administration but personal misconduct of the part of the President.
There is no question in this case that the misconduct was committed by
President Clinton personally. But that was not always the case in the
situation involving President Nixon. He and his administration were
accused of a broad range of offenses that did not involve presidential
misconduct personally.
Second, the President, if he is target of impeachment, must be
given some reasonable notice that the misconduct alleged to him was
wrong. Our constitution mandates such a finding as a part of due
process and the President is entitled to that. I caution against
charging the President with such vague offenses as abusing power.
Although there is some controversy about this, the abuse of power is
always judged after the fact. There is no necessary finding that the
President knew that he was abusing his power. I find that to be a
dangerous precedent and one that should not be emulated by future
Congresses.
Third, after having considered the issue at some length, I have
come to the conclusion that the misconduct alleged to the officer
subject to impeachment should be a crime. A person is subject to
knowledge of the law and to knowledge that his conduct is criminal if
in fact it is so. Not all offenses, even if crimes, should result in
the removal of the President from his office, but having committed
those crimes, the President is vulnerable and should be charged if
probable cause exists that the President has committed the offenses
alleged.
As I see it, then, the responsibility of this Committee is narrow.
It need not concern itself about whether an impeachable offense has
been committed. Of course they have. The question before this Committee
is whether to acknowledge that fact and report a possible bill of
impeachment to the full House. Once the matter is pending before the
full House, the question is a fundamentally different one. The question
then is whether the President should be impeached for the misconduct
found to exist by the House Judiciary Committee.
I don't mind confessing that if I had a vote on this Committee, I
would vote to impeach the President. But before the full House of
Representatives, I certainly am not sure. I am presently of the opinion
that the misconduct admittedly occurring by the President is not of the
gravity to remove him from office.
If the President is not subject to impeachment before the full
House, what then should the Congress do about the President's admitted
misconduct? That is a very difficult question. Certainly the President
should not be permitted to walk away from his misdeeds without
punishment. The options should rest with the House and the Senate as to
whether or not the President should be sanctioned. I think that he
should be.
I believe that the President's reputation is important to him and I
believe that money is important to him as well. If the President is
criticized by a formal vote of the House and Senate, that may be enough
but I would recommend that both parties explore the possibility an
economic sanction against the President as well--something on the order
of a million dollars.
vi
Let me summarize what I have intended to say in the body of my
remarks. First, there is substantial disagreement in the Judiciary
Committee but that should be resolved by a vote. The vote should occur
at the earliest possible date. The question to be voted upon is whether
probable cause exists to find that the President of the United States
committed impeachable offenses, namely perjury and obstruction of
justice. I personally conclude that the President is properly indicted
by the Judiciary Committee for having committed those offenses. If the
Committee so concludes, it should pass promptly a Bill of Impeachment
to the full House of Representatives. If, on the other hand, the
Committee does not so conclude, the matter is over at that point.
Second, the matter should be brought promptly to a vote by the full
House. The question before the full House is not whether probable cause
exists, but whether the President should be impeached. I conclude that
the President should not be impeached and would so vote in the full
House.
If, on the other hand, a majority in the House concludes that the
President is subject to impeachment and should be impeached, the issue
should go to the Senate for their consideration. Both votes before the
House should occur this year and should not entail substantial
acrimonious debate.
The Senate can consider the matter at its leisure next year. But I
would hope that it resolves the issue of whether the President is
guilty of impeachable offenses promptly.
I would hope that the Senate in consultation with the Congress
would consider an appropriate sanction to be levied against the
President.
Mr. Hyde. Judge Higginbotham.
STATEMENT OF HON. A. LEON HIGGINBOTHAM, JR., PAUL, WEISS,
RIFKIND, WHARTON & GARRISON, WASHINGTON, DC
Mr. Higginbotham. Mr. Chairman, when I was 35 years old,
about at the age of Congresswoman Waters, I became a U.S.
District Judge. I had that coveted honor for 29 years. I
retired about 5 years ago, so that I am talking solely as an
individual. But I have enough absolute confidence to say to you
that I do not speak only for myself. My wife read this speech,
and she concurs.
I have in my first two books spent hundreds of hours going
over Farrand and Elliot, who were the two prior major scholars
who give us the whole American legal history; and maybe I
should start by quoting them. But as I listened today and as I
have heard you before, I don't think what this illustrious body
needs are quotes from Madison or Mason or Benjamin Franklin but
quotes from a person known as Luther Standing Bear, a member of
the Lakota tribe who said, ``Thought comes before speech.''
The more I have reflected on it, it seems to me that that
is the critical issue: Do we have the capacity, when dealing
with one of the most important constitutional issues which this
committee will ever have, to pause and to give thought before
you speak and before you vote.
I have filed a very detailed statement, with all of the
things which academicians do, with the footnotes which will
satisfy those who want footnotes. And as I listened to the
debate this morning, I heard a spectrum of profoundly
conflicting views. Some argued very convincingly that there is
a scintilla, or maybe more than a scintilla, of evidence to
justify a perjury prosecution. And others, I thought with
extraordinary good sense, question whether this case had the
probative weight to make the critical judgment that is
necessary.
And I came to the conclusion that I could not put your
thoughts together, and therefore, in my document, I used the
words which every great appellate lawyer uses when you want to
test the core, and the phrase is, ``assuming arguendo,'' is
there a cause of action? Assuming arguendo that all of the
adverse evidence that has been alleged by my adversary, is
there a prima facie case?
And I will assume for the purposes of analytical discussion
that some reasonable people could find a prima facie case. But
if you are going to understand my good friend Luther Standing
Bear, that is not the end of the thought, but only the
beginning, and the thought issue has to be if there is a prima
facie case of perjury, does that establish a basis for the
unique punishment inherent in impeachment.
Now, Justice Frankfurter, and I don't have to tell my good
friend Elliott Richardson because he heard it so many times,
would often say, if I can define the question, I can determine
the answer. For me, the proper question is, even if there is
perjury, is there a basis for impeachment? And in the document
which I have submitted to you, quoting and relying on the
historians who have appeared before you, Professor Holden of
Virginia, Professor Sunstein and others, I don't believe that
this case reaches the narrow category of egregious or large-
scale abuses of authority that comes from the exercise of
distinctly Presidential power. That does not mean that there is
any precedent to justify the President's sexual conduct, but we
are not talking about grand theater, we are talking about a
profound constitutional inquiry which few generations of
Congressmen have ever had to make. And it is that foundation
from which I would like to address my comments to you.
And when you have been teaching in law school, the one
thing you always try to test the students on is a hypothetical.
You are much too smart to be students, and I am much too old to
not be a professor. Let me give you what, if I were teaching my
class at Harvard, would be the hypothetical I would present to
them.
I would say, suppose that on January 17, 1998, and on
August 17, 1998, which are the two dates in which President
Clinton testified, that he appeared before a grand jury and
that his testimony was that when he was driving his automobile
in a 50-mile-per-hour speed zone, that he said he was going 49.
But the record demonstrates beyond a reasonable doubt that he
was going 55, and it would demonstrate that he knew that he was
going 55, and therefore, you have perjury material to that
inquiry. Could the President of the United States under those
circumstances be removed from office because he gave a false
statement about the speed of his car in a grand jury inquiry?
Those of you who use the word perjury in the abstract, as
if it is a ``per se'' formula which covers everything, then it
would be impeachable. I submit to you that perjury has
gradations, and I spent a lot of time in my paper suggesting to
you that there are gradations of perjury. Some are serious, and
some are less. And though I do not applaud the President for
what he did, for impeachment purposes there is not much
difference between someone who testified falsely on a speeding
incident than someone who testified falsely about his
relationship in a sexual matter voluntarily with a private
person. So therefore, that is one point I think you have to
clarify: Are you going to follow a per se perjury rule, or will
you look at gradations? We look at gradations of perjury even
under the sentencing rules, and I cite them here to you.
Now, let me press the doctrine a little more. The two
ladies who testified today, Pam Parsons and Barbara Battalino,
I respect them as decent human beings who, like all of us, or
maybe like me, have frailties; who may not have had the level
of perfection which some of you have. So they have frailties,
and they were sentenced. But what is the relevance? What is the
probative relevance of what they did compared to impeaching a
President, one who got more than 49 percent of the votes of the
citizens of this Nation? When Ms. Parsons and Dr. Battalino
were sentenced, the President was not removed. But in the Jones
case, there was a powerful concurring opinion by Justice
Breyer, and in that concurring opinion, he said the President
is the most indispensable person in the government. You cannot
equate the Presidency of the United States with the basketball
coach from South Carolina, and that takes not a thing from her
excellence and the human empathy which we must have for her.
And there are other concerns I had when I heard the word
``double standards.'' And if you were a student in my class, I
would have started a real Socratic inquiry. What do you mean
about double standards? Under the statute, under the statute
the President of the United States can be treated just like
they were. The only difference is a time delay until January
20, 2001. It is not that he has immunity, it is a question of
delay, and the Founding Fathers when creating this Constitution
were concerned about the complexity of government that they had
a whole series of rules----
Mr. Coble. Mr. Chairman, Judge, pardon me for interrupting
you, but I know the light has been on for about 10 to 12
minutes.
Judge Higginbotham. I apologize.
Mr. Hyde. I was going to ask the judge if he could bring
his remarks to a close.
Mr. Coble. No discourtesy to you, I was just thinking about
the other folks on the panel.
Judge Higginbotham. An eminently fair comment. So let me
look at Congress.
Mr. Frank. That is a terrible way to repay fairness, Judge.
Mr. Coble. Mr. Chairman, at least I tried.
Judge Higginbotham. If you are talking about double
standard, look at Dombrowsky v. Eastland, which stands for the
proposition that Members of the U.S. Congress can go on the
floor of the House and commit what in a private setting would
be libel. They can say things, I know none of you do it, which
are malicious, which are even fraudulent, and you have absolute
immunity from any liability whatsoever, and that has been
applied to judges in Stump v. Sparkman to prosecutors in Imbler
v. Pachtman and to witnesses in Briscoe v. LaHue. So therefore,
we don't have a single standard in the operation of our
society; we do have some situations of special privilege.
And I thank you, Mr. Chairman, for your extraordinary
indulgence of me.
Mr. Hyde. Thank you, Judge.
[The prepared statement of Mr. Higginbotham follows:]
Prepared Statement of Hon. A. Leon Higginbotham, Jr.,\1\ Paul, Weiss,
Rifkind, Wharton & Garrison, Washington, DC
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\1\ Chief Judge Emeritus (Ret.), U.S. Court of Appeals; Public
Service Professor of Jurisprudence, John F. Kennedy School of
Government, Harvard University; Senior Counsel, Paul, Weiss, Rifkind,
Wharton & Garrison; Commissioner, U.S. Commission on Civil Rights.
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i. ``thought comes before speech''
Mr. Chairman, it is a coveted and extremely challenging honor to
speak to this distinguished Committee. Each member of this Committee is
at a critical fork in the road of constitutional inquiry. I cannot
think of any judgment that will, in the long run, have more profound
significance to the future of our country and to our citizens than your
decision as to whether, on the evidence before you, Articles of
Impeachment should or should not be filed against the President of the
United States. Although on several occasions Congress has declared war,
this is only the third time that the Committee on the Judiciary has
seriously considered whether Articles of Impeachment should be issued
against an American President. By the very infrequency that such
proceedings have been initiated, and the polarization such proceedings
could cause, we are confronted with a situation that requires the
Judiciary Committee to be ever mindful of the potentially harmful
consequences of any process that may have only a minuscule rationality.
My approach to this momentous problem is what a leader of the
Lakota tribe named Luther Standing Bear once said: ``Thought comes
before speech.''
ii. no valid basis to vote for articles of impeachment
You have received a plethora of comments by premier scholars on the
issue as to whether, after a fair reading of Article II of the U.S.
Constitution,\2\ the facts on the present record warrant the filing of
Articles of Impeachment. I agree generally with the comments of
Professors Matthew Holden, Jr., Cass R. Sunstein, Arthur M.
Schlesinger, and Father Robert F. Drinan, who have testified before
you, and I do not believe that, on the present record, there is a valid
basis to vote Articles of Impeachment.
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\2\ ``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.''
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iii. the constitutional basis for impeachment
I recognize that there is intensive debate as to whether the record
establishes that actual perjury was committed by the President. For the
purpose of my analysis before this Committee, I will assume, arguendo,
that the record has a prima facie basis for statutory perjury. But,
even with a ``finding'' of criminal liability for perjury, a more
relevant question remains unresolved--that is whether this case of
statutory perjury constitutes a basis for impeachment of the President.
It is my understanding that the Committee--or at least a majority of
the Committee--has categorized the topic for discussion today as ``The
Consequences of Perjury and Related Crimes.'' I submit that a
discussion of perjury in the abstract is not adequate to form a wise
judgment on the more complex issue as to whether the President of the
United States should be impeached, pursuant to Article II.
From my view, Professor Sunstein framed the issue flawlessly when
he wrote:
. . . with respect to the President, the principal goal of
the impeachment clause is to allow impeachment for a narrow
category of egregious or large-scale abuses of authority that
come from the exercise of distinctly presidential powers. On
this view, a criminal violation is neither a necessary nor a
sufficient condition for impeaching the President. What is
generally necessary is an egregious abuse of power that the
President has by virtue of being President. . . . Impeachment
is generally foreign to our traditions and prohibited by the
Constitution. Outside of [a special] category of cases, the
appropriate course for any crimes is not impeachment, but a
prosecutorial judgment after the President has left office,
whether indictment is appropriate.
* * * * * * *
There are grave systemic dangers in resorting to impeachment
except in the most extreme cases. The prospect of impeachment
can be highly destabilizing to government, and in an era in
which the opposing party and the mass media are likely to be
aligned in accusing political opponents of criminality, there
is a continuing risk that impeachment proceedings will become
routine rather than exceptional. This risk is all the more
serious in light of the central modern role of the American
President, both domestically and internationally.\3\
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\3\ Professor Sunstein testified before the House Committee on the
Judiciary on November 9, 1998, and has written and presented a
comprehensive essay as the Roberts Lecture at the University of
Pennsylvania on November 10, 1998.
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iv. would all acts of perjury constitute a basis for impeachment,
regardless of the factual context?
My discussion today will address three questions. The first
question is the sine qua non issue for this Committee's consideration:
whether all acts of perjury, regardless of the factual context, warrant
a Congressional committee voting for an Article of Impeachment. In
other words, is any incident of perjury, on any matter, on any subject,
per se, in and of itself, a basis for impeachment of a President? The
second question for consideration is: If some acts of perjury by a
President can rise to the level of impeachable offenses and other acts
of perjury do not, then, what is the limiting principle that
differentiates the two types of perjury? The final question is: If the
perjury of which the President has been charged is not impeachable
under the Constitution, as I argue, then, what, if any, permissible
responses remain for addressing the President's behavior?
The first question is whether all types of perjury by a President
are per se impeachable offenses. Let us examine the concept of per se
perjury by setting up a factually specific hypothetical. Suppose that
in either January or August 1998 \4\ President Clinton testified under
oath, but in this hypothetical, he was not asked about sexual matters,
but was questioned about his driving record. Let us assume that the
President, at some point before giving his testimony, was cited for
driving his car at a speed of 55 miles-per-hour in a 50-mile-per-hour
speed zone. Suppose further that, when the President was questioned,
again under oath, he falsely testified that he was only driving 49
miles-per-hour on the date in issue. Would that false statement about
the speed of his car constitute a valid constitutional basis for this
Committee to issue a proposed Article of Impeachment? I submit to you
that it would be grossly improper to impeach a President under such a
factual scenario, because perjury regarding a 55-mile-per-hour traffic
offense does not rise to the level of ``Treason, Bribery, or other high
Crimes and Misdemeanors'' about which the framers were concerned when
they drafted Article II. Is perjury about a traffic offense different
than perjury about a sexual matter involving consenting adults? I
submit that as to impeachment purposes, there is not a significant
substantive difference between the hypothetical traffic offense and the
actual sexual incident in this matter. The alleged perjurious
statements denying a sexual relationship between the President of the
United States and another consenting adult do not rise to the level of
constitutional egregiousness that triggers the impeachment clause of
Article II.
---------------------------------------------------------------------------
\4\ The President testified in his deposition in the Jones v.
Clinton case on January 17, 1998, and before the Grand Jury on August
17, 1998.
---------------------------------------------------------------------------
v. are there gradations of perjury?
If perjury is not per se impeachable, the purist might demand that
we draw a bright line that clearly delineates between impeachable and
non-impeachable perjury. However, as Justice Holmes said on two
different occasions: ``Neither are we troubled by the question where to
draw the line. That is the question in pretty much everything worth
arguing in the law. Day and night, youth and age are only types''; \5\
and ``I do not think we need trouble ourselves with the thought that my
view depends upon differences of degree. The whole law does so as soon
as it is civilized.'' \6\
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\5\ Irwin v. Gavit, 268 U.S. 161, 168 (1924).
\6\ LeRoy Fibre Company v. Chicago, Milwaukee & St. Paul Railway,
232 U.S. 340, 354 (1913) (Holmes, J., concurring).
---------------------------------------------------------------------------
As serious a crime as perjury is, there exists a spectrum of
gravity with regard to false statements. As judges, we follow Congress'
instructions--your instructions--to recognize this spectrum every time
we sentence an individual for perjury under the U.S. Sentencing
Guidelines (the ``Guidelines''). Section 2J1.3 of the Guidelines
mandates that we increase the base offense level, and therefore the
sentence, of a defendant convicted of perjury by different degrees
depending on the harm caused by the false statement.
Section (b)(1) requires us to increase the offense level by 8 if
the offense ``involved causing or threatening to cause physical injury
to a person, or property damage, in order to suborn perjury.''
Section (b)(2) requires us to increase the offense level by 3 if
the perjury ``resulted in substantial interference with the
administration of justice.''
Section (c)(1) provides that ``if the offense involved perjury in
respect to a criminal offense,'' we must use the offense level for an
accessory after the fact if that offense level would be higher.
At one end of the spectrum are examples of clearly impeachable
perjury, such as providing false testimony that causes grave injury to
the country. For example, if the President had committed treason by
selling nuclear secrets to a foreign agent, it could cause grave injury
to the country and it would be an impeachable offense--and it would
also be an impeachable offense if he lied about his treason.
At the other end of the spectrum are examples of perjury that
clearly do not merit impeachment under the high constitutional
standard.\7\ I provided one such example earlier. If the President had
lied about the commission of a traffic violation, I submit that his
false testimony would not cause anywhere near sufficient injury to the
nation to warrant impeachment.
---------------------------------------------------------------------------
\7\ Professor Sunstein asserts that an originalist understanding of
the Constitution mandates that impeachment be used only in those rare
cases in which it can be proven that the President engaged in a large-
scale abuse of presidential power. Put differently, to be impeached,
the President must have abused a distinctly presidential power and that
abuse must have been of such a scope and magnitude as to cause grave
injury to the country.
---------------------------------------------------------------------------
To my mind, President Clinton's alleged perjury regarding
consensual sexual relations clearly falls on the end of the spectrum
with my example of perjury regarding a traffic violation. Assuming his
statements were false and material, they did not cause anywhere near
the gravity of injury required by the Constitution for impeachment.
I cannot in the abstract articulate exactly where the line between
impeachable and non-impeachable perjury does fall. Instead, I can only
urge that you allow yourselves to be guided by a principle of restraint
in interpreting an ambiguous area of constitutional inquiry,
particularly where the failure to exercise such restraint could result
in the nullification of the will of the majority of the electorate, not
to mention the profound weakening of the institution of the presidency.
vi. the alleged double standard issue
Judge Bowman stated in his Eighth Circuit opinion in Jones v.
Clinton,\8\ that ``[t]he President of the United States, like all other
government officials, is subject to the same laws that apply to all
other members of our society.'' Some persons make the deceptive
contention that there is a double standard at work, in that the
President is being treated differently than ``everyone else.'' They
assert that if the President is not impeached, he will not be held
responsible for an act for which an ordinary citizen would be
sanctioned.
---------------------------------------------------------------------------
\8\ 72 F.3d 1354, 1358 (8th Cir. 1996), aff'd, 520 U.S. 681 (1997).
---------------------------------------------------------------------------
It is my understanding that the Committee has invited two persons
to testify who have been convicted of perjury in federal court. I
presume that the inference that some seek to make is that President
Clinton should be treated the same as they were, and that he should not
get some ``special privilege.'' However, in reality, the President is
not receiving any ``special privilege.'' The Justice Department may
prosecute Mr. Clinton for perjury in 2001 or earlier,\9\ just as Ms.
Barbara Battalino and Ms. Pam Parsons were prosecuted. President
Clinton is subject to the exact same criminal penalties to which Ms.
Battalino and Ms. Parsons were subject. Reliance on the duality
``problem'' as a basis to initiate an impeachment of the President is
fallacious and unconstitutional. It reminds me of what Samuel Johnson
once said: that we should avoid arguments that are ``too foolish for
buffoonery and too wild for madness.'' \10\
---------------------------------------------------------------------------
\9\ It is an open question as to whether or not the President may
be criminally prosecuted while in office.
\10\ See Lillian B. Miller, ``The Dye is Now Cast,'' at 163.
---------------------------------------------------------------------------
Right now, the issue before the Committee is whether or not
President Clinton should be impeached. The testimony provided by Ms.
Battalino and Ms. Parsons is wholly irrelevant to this inquiry because
this alleged differential treatment goes to the realities of
maintaining a federal government on a stable and rational basis. Ms.
Battalino and Ms. Parsons did not receive 379 electoral votes and
47,401,054 (49.3%) of the popular vote to put them in office as the
President of the United States. Their immediate prosecution would not
raise the destabilizing impact that a prosecution of the President
might. Their testimony has limited probative value as to the
appropriateness of an impeachment inquiry against President Clinton. I
urge the Committee to remain focused, and not to be swayed by the
irrelevant testimony of Ms. Battalino and Ms. Parsons.
vii. the ``abuse of power'' issue in the nixon and clinton
proceedings--are they the same?
One of the ``related crimes'' about which I have been asked to
testify is ``abuse of power.'' As an initial matter, I observe that
there is no federal crime of ``abuse of power'' or ``misuse of power.''
The words do not appear in any criminal statute of which I am aware.
To the extent that the Office of the Independent Counsel (``OIC'')
relies upon similar language in Article II of the Articles of
Impeachment filed against President Richard M. Nixon, the two matters
concern starkly different behavior. The conduct of President Nixon
consisted of a continuous and systematic attempt to deprive citizens,
deemed by the President to be his political enemies, of their liberty,
by bringing to bear the awesome power of various agencies of the
federal government. The allegations against President Nixon evince an
abuse of distinctly Presidential powers in an attempt to oppress
political enemies and other private citizens.
Using the Internal Revenue Service (``IRS'') to
engage in improper tax audits and investigations of political
enemies.
Attempting to obtain confidential information
maintained by the IRS concerning political enemies.
Using the Federal Bureau of Investigation (``FBI''),
the Secret Service and other executive personnel to undertake
improper electronic surveillance and other investigatory
techniques with regard to political enemies, and permitting
improper use of materials obtained thereby.
Creating and maintaining a secret investigative unit
within the Office of the President, which utilized the
resources of the Central Intelligence Agency (``CIA''), engaged
in covert and illegal activities, and attempted to prejudice
the constitutional rights of an individual to a fair trial.
Failing to act when subordinates impeded the
investigation into the break-in of the headquarters of the
Democratic National Committee.
Interfering with executive branch agencies,
including the FBI, CIA and Department of Justice.
The charges by the OIC against President Clinton are not comparable
to those leveled against President Nixon. First, the charges against
President Clinton are based on the weakest of evidence, as revealed by
the phraseology used by the Independent Counsel in his testimony before
this Committee. For example, each charge relating to the alleged abuse
of power by the President is prefaced by the words ``the evidence
suggests.''
Moreover, the allegations against President Clinton, even if true,
do not reveal the kind of systematic and repeated abuse of distinctly
Presidential power, in derogation of the constitutional rights of
citizens of the United States, exemplified by the charges against
President Nixon. Rather, they relate to the purely private matter of
the Jones v. Clinton case, his relationship with Ms. Lewinsky and their
sequelae.
viii. the obstruction of justice issue
The obstruction of justice charge levied against President Nixon
was based on actions that were far more serious than those which
President Clinton allegedly committed. President Nixon was accused of
obstructing the investigation of the unlawful entry into the
headquarters of the Democratic National Committee in order to secure
political intelligence. As part of this obstruction, President Nixon
allegedly made false statements to investigators, withheld material
evidence, counseled witnesses to give misleading statements, and
condoned secret payments intended to influence the testimony of key
witnesses.
President Clinton is being accused of obstruction of justice
because he allegedly lied under oath about a private relationship
between two consenting adults.\11\ Quite simply, even if one assumes
that the President lied about the relationship between him and Ms.
Lewinsky, such a lie does not rise to the level of egregious conduct
which is required to support an impeachment inquiry against a
President. Mr. Starr alleges that President Clinton asserted legally
baseless privileges to conceal relevant information from the grand
jury. However, it is worth noting that Justices Ginsburg and Breyer
both argued, in dissent, that the Supreme Court should have heard the
issue of whether or not there is a Secret Service evidentiary
privilege. Thus, that asserted privilege is clearly not baseless.\12\
---------------------------------------------------------------------------
\11\ According to Mr. Starr, the evidence also ``suggests'' that
President Clinton reached an agreement with Ms. Lewinsky that each
would make false statements under oath; that President Clinton
improperly provided job assistance to Ms. Lewinsky; that President
Clinton coached a potential witness (Ms. Betty Currie) with a false
account of relevant events; and that President Clinton attempted to
conceal gifts which had been subpoenaed from Ms. Lewinsky.
\12\ See Rubin v. United States, No. 98-93, 1998 WL 407152 (U.S.,
Nov. 9, 1998) (Ginsburg, J., dissenting from denial of certiorari); id.
(Breyer, J., dissenting from denial of certiorari).
---------------------------------------------------------------------------
ix. are there different criteria in presidential and judicial
impeachments?
As a matter of constitutional law, there is a higher threshold the
House must meet in order to impeach a President as compared to its
constitutional authority to impeach a federal judge.
Looking at the text of the Constitution, one finds that judges are
subject to the ``good behavior'' clause of Article III, Section 1,
while the President, Vice President and other civil officers are not.
While constitutional scholars disagree on whether this language lowers
the threshold for the impeachment of judges, it certainly ought to give
one pause before applying the same impeachment standards to the
President that one would apply to a federal judge.
In addition, and more importantly, there are structural, functional
and pragmatic differences between the presidential and judicial
impeachment processes.
First, the President is one of only two civil officers of the
United States popularly elected (for all intents and purposes) by a
national constituency. Judges are appointed for life by the President
and the Senate, and can claim the support of no constituency, national
or local.
The President is subject to political checks and balances other
than impeachment--the requirement of running for re-election after 4
years, the constant interaction between the legislative and executive
branch (on legislation, appointments, legislative oversight, etc.), the
President's concern for his own party in the next Congressional and
Presidential election, and so on. The only checks on a federal judge
are one's conscience and the threat of impeachment.
The President can be ousted from office by the people after his
current term ends, or in the case of a second-term President such as
President Clinton, is automatically disentitled to serve another term
by virtue of the 22nd Amendment. Judges hold office for life. The need
is far more pressing in these circumstances, therefore, to remove a
judge who is dangerous, corrupt or a criminal than to remove a
President with similar attributes. It would be especially damaging to
the nation for a federal officer to draw a salary from the federal
government while in prison, and then, what is worse, to countenance his
or her returning to office after prison. Such concerns exist with
regard to federal judges--indeed, both Judges Claiborne and Nixon were
impeached after having been sentenced to prison--but not the President.
As Justice Breyer has said, and few can disagree, the President is
the ``sole indispensable [person] in government.'' \13\ There are more
than 1,100 federal judges. To remove a sitting President is to
decapitate an equal and co-ordinate branch of government with one fell
swoop.
---------------------------------------------------------------------------
\13\ Clinton v. Jones, 520 U.S. 681, 713 (1997) (Breyer, J.,
concurring in the judgment).
---------------------------------------------------------------------------
The application of a different standard to the impeachment of the
President than the impeachment of federal judges is also not without
precedent in this body. The House Judiciary Committee in 1974 declined
to file an Article of Impeachment against President Nixon based on the
allegations that he filed false tax returns from 1969 through 1972. The
Committee's decision was based largely on its determination that an
instance of private misconduct, even if criminal, did not amount to an
impeachable offense, as opposed to an extreme abuse of distinctly
Presidential authority. By contrast, the Committee filed Articles of
Impeachment against Judges Claiborne, Nixon and Hastings alleging
similar conduct. The ``common law of impeachment'' has thus forged a
distinction between a President and federal judges for impeachment
purposes.
x. your vote and america's rendezvous with destiny
I do not believe that perjury is a trivial matter and, as I have
noted in several opinions while serving on the U.S. Court of Appeals
for the Third Circuit, perjury is a serious offense.\14\ But, I submit
that the impeachment clause was not intended to give unlimited options
to either an unrestrained committee of Congress or a super-aggressive
Office of the Independent Counsel seeking to use the label of perjury
to prosecute a President for what primarily was a dereliction of sexual
morals, where the underlying sexual acts did not constitute a grave
injury to the country.
---------------------------------------------------------------------------
\14\ See, e.g., Fraternal Order of Police v. City of Philadelphia,
859 F.2d 276 (3d Cir. 1988) (noting that ``the fifth amendment does not
protect a citizen against the consequences of committing perjury'');
Government of the Virgin Islands v. Martinez, 831 F.2d 46 (3d Cir.
1987) (noting that the Supreme Court ``has consistently emphasized the
gravity of perjured testimony''); United States v. Messerlian, 832 F.2d
778 (3d Cir. 1987) (finding that ``the evidence of perjury as an `overt
act' of conspiracy could legitimately support a conviction on Count 2
by a rational trier of fact'').
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I submit that your individual vote will have a profound impact on
the entire history and future of the United States of America. I would
remind you once again of the incisive words of Luther Standing Bear:
``Thought comes before speech.'' I pray that this Committee will, in a
non-partisan way, rise to its highest potential of statesmanship by
giving this issue its calm and insightful thought before speaking and
casting a vote that will affect America's rendezvous with destiny.
I wish to acknowledge the valuable contributions of my colleagues
Tiffany S. Bingham, Carol Derby, Michael J. Mannheimer, Joanne L.
Monteavaro, Shaun M. Palmer, Joseph Sansone, Amy B. Vernick and Linda
Y. Yueh.
Mr. Hyde. Mr. Richardson, Ambassador Richardson.
STATEMENT OF HON. ELLIOT L. RICHARDSON, MILBANK, TWEED, HADLEY
& McCLOY, WASHINGTON, DC
Mr. Richardson. Mr. Chairman and members of the committee,
thank you for giving me this opportunity to share with you my
perspective on the responsibilities thrust upon you by
President Clinton's conduct. It is a perspective gained from
experience not only as a U.S. Attorney General, but also as a
State attorney general and U.S. attorney. In fact, I may well
be the only person who has held all three of those jobs. I will
be glad, of course, to respond to your questions and hope that
my testimony will in the end have contributed to saving more
time than it cost.
As you have reminded us, Mr. Chairman, the principal focus
of this hearing is on the consequences of perjury and related
crimes. That certainly has to be the area of your and your
fellow citizens' primary concern. It does not follow, however,
that there needs to be comparable emphasis on evidentiary
matters. There is no material difference, indeed, between the
Starr report's allegations and the President's admissions: It
is accepted that he did in fact over a period of months deny,
withhold and misrepresent the truth as to his relationship with
Monica Lewinsky. This committee, moreover, has no need to
decide whether or not these lies constitute perjury as that
term is defined by criminal law. Taking into account the
number, persistence, and context of these lies, as well as the
fact that they were deliberately intended to mislead bodies
officially charged with pursuing the truth, you could
reasonably regard them as warranting impeachment, even though
they may not fall within the definition of perjury.
But Article II, Section 4 of the Constitution specifies
that on conviction by the Senate for an impeachable offense,
the only available penalty is removal from office. To
contemplate impeachment, therefore, is to raise the question of
whether or not the circumstances justify so drastic a penalty.
The members of this committee, I submit, already have all
the information they need on which to base their own individual
answers to this question. If a majority of you conclude that
the answer to this question should be no, it is obvious that
the actual adoption by the House of Representatives of
impeachment charges would be pointless. Worse, such action
would automatically transmit those charges to the Senate for
trial, thus indefinitely prolonging final resolution of this
matter. The Senate itself, meanwhile, would have no alternative
but to convict or acquit: No intermediate outcome would be
possible.
This body, by contrast, is in a position right now to
submit to the House as a whole its best judgment as to an
intermediate course. And since, unlike a judicial sentence,
such an outcome--censure or rebuke, with or without a formal
acknowledgment of guilt--cannot be made proportional in
severity to the seriousness or number of the offenses charged,
an attempt by the House to make the grounds for its
intermediate action seem more precise would serve no useful
purpose.
To my mind, the intermediate course offers the most
appropriate and least destructive solution. The initial
wrongdoing was not criminal, and did not, in contrast to that
of Richard Nixon, entail the abuse of power. Given a
President's unique status as a Chief Executive whose authority
derives from a majority vote of the American people, his crimes
or misdemeanors should, in order to justify his removal, have
to be higher than those at issue here.
Thank you, Mr. Chairman. That completes my prepared
statement.
Mr. Hyde. Thank you, Mr. Richardson.
[The prepared statement of Mr. Richardson follows:]
Prepared Statement of Hon. Elliot L. Richardson, Milbank, Tweed, Hadley
& McCloy, Washington, DC
Mr. Chairman and members of the committee: Thank you for giving me
this opportunity to share with you my perspective on the
responsibilities thrust upon you by President Clinton's conduct. It is
a perspective gained from experiences as a U.S. Attorney, State
Attorney General, and Attorney General of the United States. In fact, I
believe that I'm the only person who has held all three of these jobs.
I will be glad, of course, to respond to your questions and hope that
my testimony will in the end have contributed to saving more time than
it cost.
The principal focus of this hearing, I understand, is on issues of
perjury and related crimes. That, certainly, has to be the area of your
and the nation's primary concern. It does not follow, however, that
there needs to be comparable emphasis on evidentiary matters. There is
no material difference, indeed, between the Starr report's allegations
and the President's admissions: it is accepted that he did in fact over
a period of months deny, withhold, and misrepresent the truth as to his
relationship with Monica Lewinsky. This committee, moreover, has no
need to decide whether or not these lies constitute ``perjury'' as that
term is defined by criminal law. Taking into account the number,
persistence, and context of these lies as well as the fact that they
were deliberately intended to mislead bodies officially charged with
pursuing the truth, you could reasonably regard them as warranting
impeachment even though they may not come within the definition of
perjury.
But Article II, Section 4 of the Constitution specifies that on
conviction by the Senate for an impeachable offense the only available
penalty is removal from office. To contemplate impeachment, therefore,
is to raise the question of whether or not the circumstances justify so
drastic a penalty. The members of this committee already have all the
information they need on which to base their answers to this question.
If a majority of you conclude that the answer to this question should
be ``no,'' it will then be obvious that the actual adoption by the
House of Representatives of impeachment charges would be pointless.
Worse, such action would automatically transmit those charges to the
Senate for trial, thus indefinitely prolonging final resolution. The
Senate itself, meanwhile, would have no alternative but to convict or
acquit: no intermediate outcome would be possible.
This body, by contrast, is in a position right now to submit to the
House as a whole its best judgment as to an intermediate course. And
since, unlike a judicial sentence, such an outcome--censure or rebuke,
with or without acknowledgment of guilt--cannot be made proportional in
severity to the seriousness or number of the offenses charged, an
attempt by the House to make the grounds for its intermediate action
seem more precise would serve no useful purpose.
To my mind, the intermediate course offers the most appropriate and
least destructive solution. The initial wrongdoing was not criminal and
did not, in contrast to that of Richard Nixon, entail the abuse of
power. Given a President's unique status as a chief executive whose
authority derives from a majority vote of the American people, his
crimes or misdemeanors would, in order to justify his removal, have to
be higher than those at issue here.
Thank you, Mr. Chairman. That completes my prepared statement.
Mr. Hyde. Admiral Edney.
STATEMENT OF LEON A. EDNEY, ADMIRAL, USN (RET.)
Mr. Edney. Good afternoon, Mr. Chairman. It is a pleasure
to appear before your distinguished committee today. I ask that
you bear with my voice today. One of the benefits of reaching
my stage in life is that you get to take your grandchildren to
the Macy's Day Parade. Those that witnessed it this year, it
rained the entire time, but I did enjoy my time in the Big
Apple.
In view of my particular experience as a career military
officer serving this Nation's defense needs for 37 years, I
will focus my remarks on the importance of ethics and integrity
in the military chain of command of this great country, and at
the top of that chain of command, as we all recognize, is our
Commander in Chief.
We live in a society that more and more is transmitting a
confused message on the subject of ethics and integrity, so
much so that it often makes one wonder if we are losing our
way. Faced with this reality, the Armed Forces have concluded,
all personnel must be inculcated repeatedly with the
requirement and expectation that military leadership must
evolve from a foundation of trust and confidence. Ethics and
integrity of our military leadership must be much higher than
the society at large, and even the elected officials that serve
that society. Success in combat, which is our business, depends
on trust and confidence in our leaders and in each other.
Ethics and integrity are the basic elements of trust and
confidence, both in our military leadership, both from above
and, more importantly, from below.
So today in our military, we are asking our people, what is
right? Why do what is right? The moralist answer is, because it
is the right thing to do. Our answer is, because the trust and
confidence required of our profession demands it. This trust
and confidence must exist up and down the chain of command
where operations require execution of orders that endanger
lives. Doing what is right based on the whole truth must be
natural and automatic to the American military officer.
Whenever one reflects on the need for ethics within the
military profession as executed by those who have the privilege
of leading the American soldier, sailor, marine, airman and
Coast Guardsman and the duty of defending our national security
interests, I believe it is necessary to reflect on the roots of
our Nation, for it is there where the higher calling of this
Nation, some call it a moral purpose that we serve today,
began. We must never forget the values that this Nation was
founded on. They are marked forever by the lives of those who
fought and gave the ultimate sacrifice for those principles and
beliefs.
I would submit to you, while there are many effective
styles of leadership, two essential ingredients of successful
military leadership are integrity and ethics. Rank and high
positions do not confer privileges. They entail unavoidable
responsibilities and accountability. Young Americans, and that
is who fights and loses their lives in our wars, and we should
never forget it, young Americans in our military place their
leadership on a pedestal of trust and confidence when they earn
it. The troops have the right to expect unfailing professional
performance and integrity from each level of leadership. As
military leaders at all levels, we need to consistently display
that match between words and deeds, between laws and
compliance, between institutional values and behavior.
Now, the catch is this match must take place 24 hours a
day. There is no duty time and that off time where you can let
your hair down and not represent these basic values. There can
be no compromise on this issue, when professionally the
ultimate you can demand of a subordinate is that he or she lay
down their life in the execution of your orders on behalf of
this country.
When all is said and done, military leadership must have a
moral base, a set of ethical values to keep us true to the high
ideals of our forebears, who provided us the cherished
inheritance of freedom and justice. The integrity of an
officer's word, signature, commitment to truth concerning what
is right, and acting to correct what is wrong, must be natural,
involved and rise to the forefront of any decision or issue.
Leadership by example must come from the top; it must be
consistently of the highest standards, and it must be visible
for all to see. Do as I say and not as I do won't hack it in
our military. This country is firmly entrenched in the
principle of civilian leadership of our military and the
authority of the President of the United States. Therefore, I
believe those who hold that leadership position to be credible
should meet the same standards.
America and our Armed Forces have always stood on the side
of right and human decency. You do not throw these core values
away in the process of defending them. You also do not lower
the bar of ethical standards and integrity when individuals
fail to live up to them. We must continue to remove those who
fall short and seek those who meet and exceed the requirements.
Dual standards and less accountability at the top will
undermine the trust and confidence so essential to good order
and discipline, as well as mission success.
Mr. Hyde. I would remind you that you need to close.
Admiral Edney. The fact is these are core values for
military leadership. Concerning what is right and what is
wrong, there are any number of courses of action that they can
take. Mistakes will happen and can be corrected, usually with a
positive learning curve. To cover up mistakes and
responsibility by lying or obstruction cannot be tolerated. The
leadership of our Armed Forces must be based on principle, not
litigious double-talk. Thus, the leadership trade of our
military as well as the civilian leaders of the military must
demonstrate above all else a commitment to integrity and ethics
on a daily basis.
In summary, we must learn from our past mistakes, but we
must get on with the business at hand and focus on the future,
not our wake. Military readiness and mission accomplishment
depends on the trust and confidence and the integrity of our
leader. The actions of the leader are more important than the
words. It is important for those who lead to know what you
stand for. It is also important to know what you won't stand
for.
Finally, regardless of what the exit polls say, the
character of a nation and its leaders does matter, and it
matters most to those who are prepared to lay down their lives
for that nation. Those entrusted with the defense of our Nation
are in the risk-taking business.
Finally, our leaders must eschew obfuscation in all we do.
Our national leaders must talk straight and with integrity on
every issue. If we lie to ourselves as an institution, or as
individuals within that institution, we are laying the seeds of
our own individual and national destruction.
Thank you for the privilege of addressing this committee.
Mr. Hyde. Thank you, Admiral.
[The prepared statement of Mr. Edney follows:]
Prepared Statement of Leon A. Edney, Admiral, USN (Ret.)
Mr. Chairman, I appear before your distinguished committee today to
participate in a panel discussion addressing leadership and ethics as
they relate to the current issues before this committee and the nation.
In view of my particular experience as a career military officer
serving this nation's defense needs for over 37 years, I will focus my
remarks on the importance of ethics and integrity in the military
leadership of this great country of ours. For the past 2 years, I have
been the full-time occupant of the Distinguished Leadership Chair at
the U.S. Naval Academy. This Chair is endowed by the private donation
of one the Academy's alumni and therefore my remuneration is not paid
for with government or taxpayers' dollars. I spend my time teaching
ethics 3 days a week, leadership 2 days a week and participate in a
Brigade-wide Integrity Development Program once a month. This is an
indicator of the relevance and importance placed on these subjects by
those charged with developing the ethical-based leadership required by
our officer corps. While I provide this information as background, I
appear before you today and make this statement as a concerned
individual citizen and retired military officer; not as a
representative of any organization with which I am currently
affiliated.
We live in a society that more and more is transmitting a confused
message on the subject of ethics and integrity, which makes one wonder
if we are losing our way. In our last Presidential election, both
candidates emphasized family values, one wanted two parents to be the
center of the family responsibilities. The other felt it takes a
village of caring people to raise our children; it seems to me both
were right. When we look in the window of the American society to see
how we are doing, the picture is not too comforting. Approximately one
out of four babies born today is illegitimate and 25% of all children
are being raised by a single parent. Even in the declining base of our
more traditional two-parent families, both parents routinely work full-
time jobs. It often appears we are more interested in raising wealth
than our children. Consequently, TV viewing is up 60% among our
children and scanning the Internet, not reading the classics, is a
close second. Those interested in leadership and ethics development
must ask this question: What ethical messages are our children getting
from many afternoon TV talk shows as well as the prime time violence
and comic titillation on TV in the evening? Now this same material is
easily available on the Internet. Recent surveys indicate 70% of
college students admit cheating at least once. You can buy books on how
to cheat and succeed in most off-campus book stores. The suicide rate
among teens is up 11% in the last 5 years. Crime and drugs remain
dominant factors in our cities. More interesting is the fact that 50%
of our crime involves employees stealing from employers. These are
values and lessons of life that are getting transmitted to our youth.
It is often a message that subtly implies: So what if it is wrong,
everyone is doing it. This is the background from which our entry-level
enlisted and officers are coming from.
Faced with this reality, the armed forces have concluded, all
personnel must be inculcated repeatedly with the requirement and
expectation that military leadership must evolve from a foundation of
trust and confidence. The ethics and integrity of our military
leadership must be much higher than the society at large and even the
elected officials that serve that society. Success in combat, which is
our business, depends on trust and confidence in our leaders and each
other. Ethics and integrity are the basic elements of trust and
confidence in our military leadership, both from above and more
importantly from below.
While the requirements for successful military leadership are
clear, it is also clear we do not always meet these standards. At the
end of the Gulf War, just 7 years ago, our military and its leaders
stood at the pinnacle of professional performance and public esteem
following the dramatic successes in the Gulf War. We led everyone's
list of those for whom the public had trust and confidence. Since then
we have had Tailhook as a watershed event. There have been serious
sexual harassment and ethical behavior charges in all the services,
many involving very senior leadership that have resulted in more than a
dozen flag officers being removed from office for violations of
integrity and ethics. The issue of chemical weapons exposure in the
Gulf War raises questions concerning straight talk if not the integrity
of the leadership with regards to our troops and the public. Leadership
within the Army has been tarnished by Skin Head racial incidents at
Fort Bragg, the revelations at Aberdeen and the alleged abuses of the
former Sergeant Major of the Army. The tragic shoot down of friendly
helicopters in Northern Iraq as well as several Navy and Marine air
accidents also raised questions of confidence and integrity in the
military training process. The Naval Academy had the EE Cheating
Scandal in 1993-1994 plus a few highly publicized incidents of drug use
and car thefts by members of the Brigade. The Marine Corps had cheating
on exams at their Officers Basic School, the publicized tradition of
blood pinning and the recent relief of a commander in the field for
apparently advocating the destruction of any films documenting routine
failures in flight discipline. Unfortunately, I could list more
examples but the message is our house does not look in order on the
issue of ethics and integrity, no matter where you look from the White
House to the house next door. Whenever these disconnects between our
standards of behavior and our actions occur, the solution is not to
lower our standards. Rather, we must maintain the standards and improve
our performance while holding those who fail accountable.
In the military profession, a breach of your integrity, ethics or
honor is always accompanied by a leadership failure. The bottom line
for our military leadership requirements is that integrity and ethics
cannot be taken for granted or treated lightly at any level of training
or interaction. All our personnel must be inculcated repeatedly with
the requirement that military leadership must evolve from a foundation
of trust and confidence in our ethics and core values of honor, courage
and commitment to do what is right. Today we are asking our people,
What is right? Why do what is right? The moralist answer is because it
is the right thing to do. Our answer is because the trust and
confidence required of our profession demands it. Doing what is right
based on the whole truth must be natural and automatic for the American
military officer. We need to clearly identify our core values and
repeatedly reinforce them among all members of the armed forces so that
they become second nature.
Whenever one reflects on the need for ethics within the military
profession, as executed by those who have the privilege of leading the
American soldier, sailor, airman, marine and Coast Guardsman in the
duty of defending our national security interests, I believe it is
necessary to reflect on the roots of our nation. For it is there where
the higher calling of this nation, some call it a moral purpose that we
serve today, began. Some current day thinking would have us believe
that those who espouse a bridge to the past have no vision. I submit if
the vision of the present is missing the values that this nation was
founded on, we should strengthen that bridge to the past, for it is
built on the lives of those who fought and gave the ultimate sacrifice
for those principles and beliefs.
While there are many effective styles of leadership, two essential
ingredients of successful military leadership are integrity and ethics.
Rank and high positions do not confer privileges; they entail
unavoidable responsibilities and accountability. Young Americans in our
military place their leadership on a pedestal of trust and confidence
when we earn it. They have the right to expect unfailing professional
performance and integrity from each level of leadership. Military
leaders at all levels need to consistently display that match between
words and deeds, between rules and compliance, between institutional
values and behavior. The catch is this match must take place 24 hours a
day, there is no duty and then off time where you can let your hair
down and not represent these core values. There can be no compromise on
this issue in a profession where the ultimate you can demand of a
subordinate is that they lay their life on the line in the execution of
your orders.
When all is said and done, military leadership must have a moral
base, a set of ethical values, to keep us true to the high ideals of
our forbears who provided us the cherished inheritance of freedom. The
integrity of an officer's word, signature, commitment to truth,
discerning what is right and acting to correct what is wrong; these
must be natural, involved and rise to the forefront of any decision or
issue. Leadership by example must come from the top, it must be
consistently of the highest standards and it must be visible for all to
see. Do as I say and not as I do just won't hack it! This country is
firmly entrenched in the principle of civilian leadership of our
military in the authority of the President. Therefore, those who hold
that leadership position, to be credible, must meet the same standards.
America and her Armed Forces have always stood on the side of right
and human decency. You do not throw these core values away in the
process of defending them. You also do not lower the bar of ethical
standards and integrity when individuals fail to live up to them. We
must continue to remove those who fall short and seek those who meet
and exceed the requirements. Dual standards and less accountability at
the top will undermine the trust and confidence so essential to good
order and discipline as well as mission success. The fact is, core
values for military leaders and their civilian Commander in Chief
remain in effect no matter where they are or what they are doing, 24
hours a day. When observed by anyone, they must reflect the
institution's core values of respect for decency, human dignity,
morality and doing what is right--in or out of uniform, on or off duty.
I believe that ethical men and women have a conscience that warns you
when you are about to cross the line from right to wrong. The true test
of integrity for the ethical leader is doing what is right when no one
is watching. He or she knows and that is all that is required to do
what is right. Unfortunately, those few senior military and civilian
officials that bring shame on themselves, their families and their
country by ethical indiscretions were probably doing the same thing as
more junior officials. It was not newsworthy then, but it was just as
wrong. If in these cases the leader chooses to lie or otherwise avoid
his/her responsibilities, the continuation of that military leadership
is adverse to morale, good order and discipline and eventually combat
effectiveness. As has been said on many occasions: ``Habit is the daily
battleground of character.''
I agree with Stephen Crater's three requirements for ethical action
on issues of integrity. First, discern what is right and what is wrong
based on all the facts and the truth. This takes pro-active involvement
not selective avoidance. Second, you must act on what you discern to be
wrong, even at personal cost and I might add the corrective action must
be effective. And third, openly justify your actions as required to
meet the test of right and wrong. Under this clear definition, whenever
an individual or collective breakdown in our core values is observed,
immediate corrective action must be taken. There are any number of
courses of action available and the best one will depend on the
circumstances at the time. What is never acceptable, is the toleration
of observed wrong actions or the acceptance of an environment that
allows wrong actions to occur. To allow this is a fundamental breakdown
in the integrity of the leadership responsibilities and trust placed in
the acceptance of one's oath of office. Above all else, military
leadership is a commitment to seek out responsibility, to understand
and accept accountability, to care, to get involved, to motivate, to
get the job done right the first time, through our people. Mistakes
will happen and can be corrected, usually with a positive learning
curve. The coverup of mistakes and responsibility by lying or
obfuscation cannot be tolerated. The leadership of our Armed Forces
must be based on principle, not litigious double talk. Thus the
leadership traits of our military as well the civilian leadership of
the military must demonstrate above all else, a commitment to integrity
and ethics on a daily basis. This must be most visible at the top, if
we as a nation are to meet our constitutional responsibilities to
``Provide for the Common Defense'' now burdened with the mantle of
world leadership.
In closing, I offer the following summary observations on ethics
and military leadership:
We must learn from our past mistakes, but we must
get on with the business at hand and focus on the future, not
our wake. We have a cadre of young leadership in our armed
services that makes me confident for the future.
Ethics and integrity essential for successful
military leadership starts at the top. In our country the top
military leadership is subject to duly elected civilian
authority specifically empowered in the office of the President
of the United States.
Military readiness and mission accomplishment
depends on trust and confidence in the integrity of the leader.
Actions of the leader are more important than words.
It is important for those you lead to know what you
stand for and equally important what you won't stand for.
Loyalty down is just as important as loyalty up.
Regardless of what the exit polls imply, the
character of a nation and its leaders does matter and it
matters most to those who are prepared to lay down their lives
for that nation. Those entrusted with the defense of our nation
are in a risk-taking business. If we ever become risk adverse
because the integrity of our leadership is in question or even
perceived to be in question, we all lose.
Finally, our leaders must ``eschew obfuscation'' in
all we do. Our national leaders must talk straight and with
integrity on every issue. If we lie to ourselves as an
institution or as individuals within that institution, we are
laying the seeds of our own individual and national
destruction.
Thank you for the privilege of addressing this Committee on these
important issues.
Mr. Hyde. Lieutenant General Carney.
STATEMENT OF THOMAS P. CARNEY, LIEUTENANT GENERAL, USA (RET.)
Mr. Carney. Thank you, Mr. Chairman, members of the
committee. I have been asked to testify to the importance of a
code of ethics and particularly to integrity on the
effectiveness of military forces. I emphasize as you did, Mr.
Chairman, I am speaking for myself as a private citizen who
happens to be a retired Army lieutenant general; I am not
speaking for the military.
Prior to attending West Point almost 40 years ago, my
Jesuit high school mentor made me aware that I would have to
swear an oath and that I better be comfortable with it. When I
read it, I found it to be an oath I could live with. Later at
West Point I learned how unique it was in military history.
American servicemen and women swear allegiance to the concepts
embodied in a document. We do not swear allegiance to a king or
a President or the motherland or to the regiment. We swear to
support and defend the Constitution of the United States
against all enemies, foreign and domestic, and to bear true
faith and allegiance to the same. Even in retired status, we
live by that oath.
Indeed, even in retired status we are subject to the
Congress's body of law for the military known as the Uniform
Code of Military Justice, to include Article 88, which
precludes contentious words against the President, and I intend
certainly not to make any such remarks today, although I
believe actions to which he admitted we would find personally
to be contemptuous. Of course, also included in that oath is
that we will, and I quote, ``obey the orders of the President
and the officers appointed over me.'' That is in the oath, and
that is not negotiable.
We have a professional military today, the best the world
has ever seen. It is not a drafted military, as the one I first
joined; it is a military that is guided by its oath and by its
supporting code of ethics. Regardless of the service, as the
admiral has pointed out, these codes are quite similar, but I
will discuss the Army's in particular, of which I am most
familiar.
The first of those codes I encountered was the West Point
motto: Duty, Honor, Country; three simple words that I still
study today. The boundless nature of the word ``country'' is
best described in article 1 of the prisoner of war's code of
conduct. Quote: ``I am an American fighting man. I serve in the
forces which guard my country and our way of life, and I am
prepared to give my life in their defense.''
The word ``honor'' includes all the chivalrous aspects of
the word, including integrity. Integrity was very clearly
delineated for us in the cadet honor code. Quote: ``A cadet
does not lie, cheat or steal, nor associate with those who
do.'' No one ever made a distinction about whether or not you
were under oath or not.
The rationale for the code went beyond the notion that
honorable men do not lie, cheat or steal. It included the
reality that battlefield reports impact decisions that affect
the outcomes of battles and the lives of soldiers.
Consequently, soldiers don't want to serve with or around other
soldiers that they don't trust. For this trust to exist, the
military must insist on the highest standards of integrity.
And the word ``duty'' in the duty, honor, country motto
said to us that we are not just prepared to give our lives, we
are prepared to live tough lives as well. So today, soldiers
are months away from their families serving in Haiti, Bosnia,
and Croatia, Macedonia, Kuwait, Korea, Central America and
elsewhere.
Now, there have been very good efforts over the years to
add clarity to the words, duty, honor, country, and in my view
none has been any better than the recent articulation of the
seven Army values. This particular card is carried in the
wallets of all of the U.S. soldiers, and a dog tag, slightly
smaller, is worn on their dog tag chains. Those three words I
discussed are expounded on in the seven words duty, honor,
loyalty, integrity, selfless service, courage, and respect for
others. Note that integrity has now been separately listed from
honor to add even more emphasis to its importance.
Why is it important that the military services be value-
based institutions? There are both external and internal
reasons. Externally, to paraphrase a great American, America's
military is created by America, is for America, and is from
America. It hasn't been any other way for the 225 years of its
history, and particularly the last 25, since the draft ended.
It is not really an all-voluntary Army, it is an all-recruited
Army, and each year a half a million American men and women
have to personally elect to join it, and another 1.8 million
have to elect to remain. That is truly from America. So the
military must have a positive image, or frankly, we will have
to return to the draft.
Despite occasional mistakes and setbacks, the military has
been the most admired institution in America for almost two
decades, according to the Gallup Poll's survey of Americans'
confidence in their institutions. It is my own view as an old
recruiter that it can't be any other way. If you erode the
value system, Americans will not be proud to join, nor to stay.
Fortunately, today's highest military leaders are attuned to
this reality, and none of them need to be reminded of the
importance of an ethical climate. They talk it, and they walk
the talk.
The internal reasons for having solid values. Those half
million who join us every year come from all backgrounds and
all walks of life, and not every one of them has had the
advantage of being born to parents like my mom and dad. Not all
of them have been exposed to the Ten Commandments and the 12
points of the Scout law, so the Army has an aggressive program
of character development starting with basic training.
I am not so naive as to think that the Army of a million
men and women, Active, Guard and Reserve, are void of weak
leaders. Certainly not. But the good news is that there are
systems to weed them out in peacetime so that the terrible
wartime consequences can be avoided.
Will soldiers follow weak leaders that don't abide by the
standards I have attempted to describe? The answer is yes. They
must, for they are bound by their oath to ``obey the orders of
the President and the officers appointed over me.'' But the
difference between an average unit and the best unit is most
often its leaders. Great leaders, men of character, inspire
soldiers to do extraordinary things. Conversely, a general
malaise hangs over units whose leaders are weak. Soldiers want,
indeed deserve, leaders who are held accountable for the same
standards that they are held. The credibility of the system is
at stake when that is not the case. The military cannot afford
to have its standards viewed as irrelevant or out of step.
Military leadership development programs, the code of ethics
and the Uniform Code of Military Justice all work together in
concert to ensure that the standards are applied equally up and
down the chain.
I look forward to your questions, sir.
Mr. Hyde. Thank you, General.
[The prepared statement of Mr. Carney follows:]
Prepared Statement of Thomas P. Carney, Lieutenant General, USA (Ret.)
I have been asked to testify to the importance of a Code of Ethics,
and particularly integrity, to the effective leadership of military
forces. My biographical sketch was sent to the committee last week. To
summarize it, my active duty military career ended 4\1/2\ years ago as
the Army's Deputy Chief of Staff for Personnel. One of my duties in
that position was to advise the Chief of Staff on leader development
programs. Prior to that time I had the privilege of leading American
soldiers on three continents from platoon to division level. That
experience included two Infantry combat tours in Vietnam, including
command of a company of paratroopers.
Prior to attending West Point almost 40 years ago, my Jesuit high
school mentor made me aware that I would have to swear an oath, and
that I'd better be comfortable with it. When I read it I found it to be
an oath I could live with. Later at West Point I learned how unique it
was in military history. American servicemen and women swear allegiance
to the concepts embodied in a document. We do not swear allegiance to a
king or a president or the motherland or the regiment. We swear to
support and defend the Constitution of the United States against all
enemies, foreign and domestic, and to bear true faith and allegiance to
the same. Even in retired status we live by the oath--indeed, even in
retirement we are subject to the Congress' body of law for the military
known as the Uniform Code of Military Justice.
Of course, also included in that oath is that we will, and I quote,
``. . . obey the orders of the President and the officers appointed
over me.'' That's in the oath. It is non-negotiable.
We have a professional military today--the best the world has ever
seen. It's not a drafted military as was the one I first joined. It's a
military that is guided by its oath and by its supporting code of
ethics. Regardless of the service, they are all quite similar. I will
discuss the Army's, of which I'm most familiar.
The first of those codes I encountered is the West Point motto--
Duty, Honor, Country. Three simple words that I'm still studying to
this day.
The boundless nature of the word ``Country'' is best described in
Article I of the Prisoner of War's Code of Conduct: ``I am an American
fighting man. I serve in the forces which guard my country and our way
of life. I am prepared to give my life in their defense.''
The word ``Honor'' included all the chivalrous aspects of the word,
including integrity. Integrity was very clearly delineated for us in
the Cadet Honor Code: ``A cadet does not lie, cheat or steal, nor
associate with those who do.'' The rationale for the code went beyond
the notion that honorable men do not lie, cheat or steal. It included
the reality that battlefield reports impact decisions that affect the
outcome of battles and the lives of soldiers. Consequently soldiers
don't want to serve with or around other soldiers they don't trust. For
this trust to exist, the military must insist on the highest standard
of integrity.
And the word ``Duty'' in the Duty, Honor, Country motto, said to us
that we're not just prepared to give our lives, we're prepared to lead
a tough life as well. We're prepared to move our family and our
household 28 times in 31 years. We're prepared to spend countless
nights and days in field training, or to jump out the door of a
perfectly good airplane on a moonless night. And today's soldiers can
add months away from their families while in Haiti, Bosnia, Croatia,
Macedonia, Kuwait, the Sinai, Korea, Germany, Central America and
elsewhere.
There have been very good efforts over the years to amplify on the
meaning of Duty, Honor, Country. In my view none has been any better
than the recent articulation of the seven Army values:
Duty
Honor
Loyalty
Integrity
Selfless Service
Courage
Respect for Others
Note that Integrity has now been separately listed from Honor to add
even more emphasis to its importance.
Why is it important that the military services be values-based
institutions? There are both external and internal reasons. Externally,
to paraphrase a great American, America's military is created by
America, is for America and is from America. It hasn't been any other
way for 225 years, but particularly the last 25 years since the draft
ended. This is not really an all-volunteer Army--it's an all-recruited
Army. Each year a half-million young American men and women have to
personally elect to join the military, and another 1.8 million have to
elect to remain. That is truly ``from America.'' So the military must
have a positive image or frankly, we'll have to return to the draft.
Despite occasional mistakes and setbacks, the military has been the
most admired institution in America for almost two decades, according
to the Gallup poll survey of Americans' confidence in their
institutions. It's my personal view as an old recruiter that it can't
be any other way. Erode the value system and Americans will not be
proud to join nor to stay.
Fortunately today's highest military leaders are attuned to this
reality--and none of them need to be reminded of the importance of an
ethical climate. They talk it, and they walk the talk.
Now consider the internal military reasons for having a solid set
of core values. Those half-million who join us every year come from all
backgrounds and all walks of life. Not every one of them has had the
advantage of being born to parents like my mom and dad. Not all of them
have been exposed to the Ten Commandments or the 12 points of the Scout
Law. So the Army has an aggressive program of character development
starting with basic training.
Now I am not so naive as to think that an Army of a million men and
women, Active, Reserve, Guard, are void of weak leaders. Certainly not.
But the good news is that there are systems to weed them out in
peacetime so that the terrible wartime consequences can be avoided.
Will soldiers follow weak leaders that don't abide by the standards
I've attempted to describe? The answer is yes. They must, for they are
bound by their oath ``to obey the orders of the President and the
officers appointed over me.''
But the difference between an average unit and the best unit is
most often its leaders. Great leaders, men of character, inspire
soldiers to do extraordinary things. Conversely, a general malaise
hangs over units whose leaders are weak. Soldiers want, indeed deserve,
leaders who are held accountable for the same standards that they are
held. The credibility of the system is at stake when that is not the
case. The military cannot afford to have its standards viewed as
irrelevant or out of step. Military leadership development programs,
the code of ethics and the Uniform Code of Military Justice all work
together in concert to insure that the standards are applied equally up
and down the chain of command.
I look forward to your questions.
Mr. Hyde. Professor Dershowitz.
STATEMENT OF ALAN M. DERSHOWITZ, FELIX FRANKFURTER PROFESSOR OF
LAW, HARVARD LAW SCHOOL
Mr. Dershowitz. Thank you. For nearly a quarter of a
century I have been teaching, lecturing and writing about the
corrosive influences of perjury on our legal system, especially
when committed by those whose job it is to enforce the law, and
ignored, or even legitimized, by those whose responsibility it
is to check those who enforce the law.
I appreciate very much your asking me to share my
experience and expertise here with you today. On the basis of
my academic and professional experience, I believe that no
felony is committed more frequently in this country than the
genre of perjury and false statement crimes. Perjury during
civil depositions and trials is so endemic that a respected
appellate judge once observed that ``experienced lawyers say
that, in large cities, scarcely a trial occurs in which some
witness does not lie.'' Police perjury in criminal cases,
particularly in the context of searches and other exclusionary
rule issues, is so pervasive that the former police chief in
San Jose and Kansas City has estimated that ``hundreds of
thousands of law enforcement officials commit felony perjury
every year testifying about drug arrests'' alone.
But in comparison with their frequency, perjury crimes are
among the most underprosecuted in this country. As prosecutor
Michael McCann concluded, ``Outside of income tax violation,
perjury is probably the most underprosecuted crime in
America.'' Moreover, there is evidence that false statements
are among the most selectively prosecuted of all crimes and
that the criteria for selectivity bears little relationship to
the willfulness or frequency of the lies, the certainty of the
evidence, or any other neutral criteria relating to the
elements of perjury.
Historically, I think we can all agree that false
statements have been committed of considerable variations in
degree. The core concept of perjury grows out of the Bible, the
Ten Commandments, ``bearing false witnesses,'' a term that
consisted in accusing another falsely of a crime.
Clearly the most heinous brand of lying is the giving of
false testimony that results in the imprisonment of somebody
who is innocent. Less egregious, but still quite serious, is
false testimony that results in the conviction of a person who
may be guilty, but whose rights were violated in a manner that
would preclude conviction if the police testified truthfully.
There are many other points on this continuum, ranging from
making false statements about income taxes to testifying
falsely in civil trials. The least culpable genre of false
testimony are those that deny embarrassing personal conduct of
marginal relevance to the matter at issue in the legal
proceeding.
I think it is clear that the false statements of which
President Clinton is accused fall at the most marginal end of
the least culpable genre of this continuum of offenses and
would never even be considered for prosecution in the routine
cases involving an ordinary defendant.
My own interest in the corrosive influences of perjury
arose from two cases that I appeared in as a young lawyer. In
both cases the policemen were caught committing perjury, one on
tape and the other by his own admission. In both cases, the
policemen were promoted, not prosecuted. Neither of those
policemen were called to appear as witnesses here today.
All reports on the pervasive problems of police perjury and
tolerance of the lying by prosecutors and judges point to a
widespread problem. The Mollen Commission in New York, for
example, concluded that the practice of police falsification is
so common that it has spawned its own word: ``testilying.''
Officers also commit falsifications to serve what they perceive
to be legitimate law enforcement ends and are committing
perjury. The Commission provided several examples of perjury
cover stories that had been suggested to young officers in
order to make arrests.
Many judges who listen to or review testimony on a regular
basis agree with Judge Alex Kozinski of the ninth circuit who
publicly stated, ``It is an open secret long shared by
prosecutors, defense lawyers and judges that perjury is
widespread among law enforcement officials,'' yet there is
little apparent concern to remedy that serious abuse of the
oath to tell the truth, even among those who now claim to be so
concerned with the corrosive influences of perjury on our legal
system.
This committee, for example, in pursuance of its oversight
mandate has never, to my knowledge, conducted hearings on this
deeply corrosive issue, which has far more dangerous impact
over our legal system than anything charged against President
Clinton. If this were truly today an objective hearing on the
consequences of perjury or on double standards, it would focus
on the most serious types of perjury: that committed by police,
with the approval of prosecutors and judges. Yet we see no such
concern.
A perfect example of the selective morality regarding
perjury occurred when President George Bush pardoned the former
Secretary of Defense Caspar Weinberger in 1992, even though the
evidence was absolutely clear and convincing.
The real issue is not the couple of convicted perjurers who
appeared before this committee today or the judges who
condemned the evils of perjury, but the hundreds of thousands
of perjurers who are never prosecuted and who this committee
does not seem to care about, many for extremely serious and
calculated lies designed to undercut constitutional rights of
unpopular defendants, and the judges who say nothing and do
nothing about this corrosive phenomenon. You could not fit into
this room or into this building all of the people who testified
more perjuriously than President Clinton and were not ever
prosecuted.
If we really want to reduce the corrosive effect of perjury
on our legal system, the place to begin is at or near the top
of the perjury hierarchy. If, instead, we continue deliberately
to blind ourselves to pervasive police perjury and other
equally dangerous forms of lying under oath and focus on a
politically charged tangential lie in the lowest category of
possible perjury, hiding embarrassing facts by evasive answers
to poorly framed questions which were marginally relevant to a
dismissed civil case, we will be reaffirming the dangerous and
hypocritical message that perjury will continue to be
selectively prosecuted as a crime reserved for political or
other agenda-driven purposes.
A Republican aide to this committee was quoted in The New
York Times as follows: ``In the hearing we will be looking to
whether it is tenable for a Nation to have two different
standards for lying under oath, one for the President and one
for everyone else.''
On the basis of my research and experience, I am convinced
that if President Clinton were an ordinary citizen, he would
not be prosecuted for his allegedly false statements. If
President Clinton were ever to be prosecuted or impeached for
perjury on the basis of the currently available evidence, it
would, indeed, represent an improper double standard, a
selectively harsher one for this President and perhaps a
handful of other victims of selective prosecution and the usual
laxer one for everyone else, especially popular police
perjurers. Thank you.
[The prepared statement of Mr. Dershowitz follows:]
Prepared Statement of Alan M. Dershowitz, Felix Frankfurter Professor
of Law, Harvard Law School
i
My name is Alan M. Dershowitz and I have been teaching criminal law
at Harvard Law School for 35 years. I have also participated in the
litigation--especially at the appellate level--of hundreds of federal
and state cases, many of them involving perjury and the making of false
statements. I have edited a casebook on criminal law and have written
10 books and hundreds of articles dealing with subjects relating to the
issues before this committee. It is an honor to have been asked to
share my experience and expertise with you all here today.
For nearly a quarter century, I have been teaching, lecturing and
writing about the corrosive influences of perjury in our legal system,
especially when committed by those whose job it is to enforce the law,
and ignored--or even legitimized--by those whose responsibility it is
to check those who enforce the law.
On the basis of my academic and professional experience, I believe
that no felony is committed more frequently in this country than the
genre of perjury and false statements. Perjury during civil depositions
and trials is so endemic that a respected appellate judge once observed
that ``experienced lawyers say that, in large cities, scarcely a trial
occurs in which some witness does not lie.'' He quoted a wag to the
effect that cases often are decided ``according to the preponderance of
perjury.'' \1\ Filing false tax returns and other documents under pains
and penalties of perjury is so rampant that everyone acknowledges that
only a tiny fraction of offenders can be prosecuted. Making false
statements to a law enforcement official is so commonplace that the
Justice Department guidelines provide for prosecution of only some
categories of this daily crime. Perjury at criminal trials is so common
that whenever a defendant testifies and is found guilty, he has
presumptively committed perjury.\2\ Police perjury in criminal cases--
particularly in the context of searches and other exclusionary rule
issues--is so pervasive that the former police chief of San Jose and
Kansas City has estimated that ``hundreds of thousands of law-
enforcement officers commit felony perjury every year testifying about
drug arrests'' alone.\3\
---------------------------------------------------------------------------
\1\ Jerome Frank, Courts On Trial 85 (1949).
\2\ Many such defendants now have years added on to their sentences
under the federal guidelines, which add points for perjury at trial.
\3\ Joseph D. McNamara, Has the Drug War Created an Officer Liars'
Club? Los Angeles Times, Feb. 11, 1996, at M1.
---------------------------------------------------------------------------
In comparison with their frequency, it is likely that false
statement crimes are among the most under-prosecuted in this country.
Though state and federal statutes carry stringent penalties for
perjury, few perjurers ever actually are subjected to those penalties.
As prosecutor E. Michael McCann has concluded, ``Outside of income tax
evasion, perjury is . . . probably the most underprosecuted crime in
America.'' \4\ Moreover, there is evidence that false statements are
among the most selectively prosecuted of all crimes, and that the
criteria for selectivity bears little relationship to the willfulness
or frequency of the lies, the certainty of the evidence or any other
neutral criteria relating to the elements of perjury or other false
statement crimes. Professor Richard H. Underwood, the Spears-Gilbert
Professor of Law at the University of Kentucky's law school, writes
that:
---------------------------------------------------------------------------
\4\ From Mark Curriden, The Lies Have It, A.B.A. J., May 1995, at
71, quoted in Lisa C. Harris, Perjury Defeats Justice, 42 Wayne L. Rev.
1755, 1768-69 (1996) (footnote omitted). See also Hon. Sonia Sotomayor
& Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern
Approach, 30 Suffolk U. L. Rev. 35, 51 n.52 (1996) (``Perjury cases are
not often pursued, and perhaps should be given greater consideration by
prosecuting attorneys as a means of enhancing the credibility of the
trial system generally.''); Fred Cohen, Police Perjury: An Interview
With Martin Garbus, 8 Crim. L. Bull. 363, 367 (1972), quoted in
Christopher Slobogin, Testilying: Police Perjury and What to Do About
It, 67 U. Colo. L. Rev. 1037, 1060 n.13 (1996) (``. . . no trial lawyer
that I know will argue that police perjury is nonexistent or
sporadic.'')
. . . more often, the [perjury] law has been invoked for
revenge, or for the purpose of realizing some political end
(the very base reason that lies are sometimes told!), or for
the purpose of nabbing a criminal who might otherwise be
difficult to nab, or, dare I say it, for the purpose of gaining
some tactical advantage. Proving that perjury was committed, or
that a ``false statement'' or a ``false claim'' was made, may
be an easier, or a more palatable, brief for the
prosecution.\5\
---------------------------------------------------------------------------
\5\ Richard H. Underwood, Perjury: An Anthology, 13 Ariz. J. Int'l
& Comp. L. 307, 379 (1996).
Historically, false statements generally have admitted of
considerable variations in degree.\6\ The core concept of perjury was
that of ``bearing false witness,'' a biblical term that consisted in
accusing another of crime.\7\
---------------------------------------------------------------------------
\6\ See, e.g., Richard H. Underwood, False Witness: A Lawyer's
History of the Law of Perjury, 10 Ariz. J. Int'l & Comp. L. 215, 252
n.157 (1993).
\7\ See, e.g., Underwood, id. at 223 and accompanying note 37.
---------------------------------------------------------------------------
Clearly, the most heinous brand of lying is the giving of false
testimony that results in the imprisonment or even execution of an
innocent person. Less egregious, but still quite serious, is false
testimony that results in the conviction of a person who committed the
criminal conduct, but whose rights were violated in a manner that would
preclude conviction if the police were to testify truthfully. There are
many other points on this continuum, ranging from making false
statements about income or expenses to testifying falsely in civil
trials. The least culpable genre of false statements are those that
deny embarrassing personal conduct of marginal relevance to the matter
at issue in the legal proceeding.
Much of the public debate about President Clinton and possible
perjury appears to ignore the following important lessons of history:
1. That the overwhelming majority of individuals who make
false statements under oath are not prosecuted;
2. That those who are prosecuted generally fall into some
special category of culpability or are victims of selective
prosecution; and,
3. That the false statements of which President Clinton is
accused fall at the most marginal end of the least culpable
genre of this continuum of offenses and would never even be
considered for prosecution in the routine case involving an
ordinary defendant.
ii
My interest in the corrosive effects of perjury began in the early
1970s when I represented--on a pro bono basis--a young man who was both
a member of and a government informer against the Jewish Defense
League. He was accused of making a bomb that caused the death of a
woman, but he swore that a particular policeman, who had been assigned
to be his handler, had made him certain promises in exchange for his
information. The policeman categorically denied making any promises,
but my client had--unbeknownst to the policeman--surreptitiously taped
many of his conversations with the policeman. The tapes proved beyond
any doubt that the policeman had committed repeated perjury, and all
charges were dropped against my client. But the policeman was never
charged with perjury. Instead he was promoted.\8\
---------------------------------------------------------------------------
\8\ See Dershowitz, The Best Defense 67 (1982). The chief of
detectives of New York wrote a book about this case in which he
confirmed these facts. See Albert Seedman, Chief! (1974).
---------------------------------------------------------------------------
The following year, I represented, on appeal, a lawyer accused of
corruption. The major witness against him was a policeman who
acknowledged at trial that he himself had committed three crimes while
serving as a police officer. He denied that he had committed more than
these three crimes. It was subsequently learned that he had, in fact,
committed hundreds of additional crimes, including some he specifically
denied under oath. He too was never prosecuted for perjury, because a
young Assistant U.S. Attorney, named Rudolph Giuliani, led a campaign
against prosecuting this admitted perjurer. Shortly afterward, the
policeman explained:
Cops are almost taught how to commit perjury when they are in
the Police Academy. Perjury to a policeman--and to a lawyer, by
the way--is not a big deal. Whether they are giving out
speeding tickets or parking tickets, they're almost always
lying. But very few cops lie about the actual facts of a case.
They may stretch an incident or whatever to fit it into the
framework of the law based on what they consider a silly law of
the Supreme Court.\9\
---------------------------------------------------------------------------
\9\ See Dershowitz, The Best Defense, supra note 8, at 377. This
was confirmed in a book entitled Prince of the City (and a motion
picture of the same name), whose contents were approved by the
policeman. See Robert Daley, Prince of the City (1978).
Nor is the evidence of police perjury merely anecdotal. Numerous
commission reports have found rampant abuses in police departments
throughout the country. All objective reports point to a pervasive
problem of police lying, and tolerance of the lying by prosecutors and
judges, all in the name of convicting the factually guilty whose rights
may have been violated and whose convictions might be endangered by the
exclusionary rule.
As the Mollen Commission reported:
The practice of police falsification in connection with such
arrests is so common in certain precincts that it has spawned
its own word: ``testilying.'' . . . Officers also commit
falsification to serve what they perceive to be ``legitimate''
law enforcement ends--and for ends that many honest and corrupt
officers alike stubbornly defend as correct. In their view,
regardless of the legality of the arrest, the defendant is in
fact guilty and ought to be arrested.\10\
---------------------------------------------------------------------------
\10\ Commission to Investigate Allegations of Police Corruption and
the Anti-Corruption Practices of the Police Department, Milton Mollen,
Chair; July 7, 1994, at 36 [hereinafter Mollen Report]. The report then
went on to describe how
. . . officers reported a litany of manufactured tales.
For example, when officers unlawfully stop and search a
vehicle because they believe it contains drugs or guns,
officers will falsely claim in police reports and under
oath that the car ran a red light (or committed some other
traffic violation) and that they subsequently saw
contraband in the car in plain view. To conceal an unlawful
search of an individual who officers believe is carrying
drugs or a gun, they will falsely assert that they saw a
bulge in the person's pocket or saw drugs and money
changing hands. To justify unlawfully entering an apartment
where officers believe narcotics or cash can be found, they
pretend to have information from an unidentified civilian
---------------------------------------------------------------------------
informant.
Id. at 38.
Even more troubling, in the Mollen Commission's view, ``the
evidence suggests that the . . . commanding officer not only tolerated,
but encouraged, this unlawful practice.'' The commission provided
several examples of perjured cover stories that had been suggested to a
young officer by his supervisor:
Scenarios were, were you going to say (a) that you observed
what appeared to be a drug transaction; (b) you observed a
bulge in the defendant's waistband; or (c) you were informed by
a male black, unidentified at this time, that at the location
there were drug sales.
QUESTION: So, in other words, what the lieutenant was telling
you is ``Here's your choice of false predicates for the
arrest.''
OFFICER: That's correct. Pick which one you're going to
use.\11\
---------------------------------------------------------------------------
\11\ Mollen Report, supra note 10, at 41.
Nor was this practice limited to police supervisors. As the Mollen
---------------------------------------------------------------------------
Commission reported:
Several former and current prosecutors acknowledged--``off
the record''--that perjury and falsification are serious
problems in law enforcement that, though not condoned, are
ignored. The form this tolerance takes, however, is subtle,
which makes accountability in this area especially
difficult.\12\
---------------------------------------------------------------------------
\12\ Mollen Report, supra note 10, at 42.
The epidemic is conceded even among the highest ranks of law
enforcement. For example, William F. Bratton, who has headed the police
departments of New York City and Boston, has confirmed that
``testilying'' is a ``real problem that needs to be addressed.'' He
also placed some of the responsibility squarely at the feet of
---------------------------------------------------------------------------
prosecutors:
When a prosecutor is really determined to win, the trial prep
procedure may skirt along the edge of coercing or leading the
police witness. In this way, some impressionable young cops
learn to tailor their testimony to the requirements of the
law.\13\
---------------------------------------------------------------------------
\13\ Boston Globe, November 15, 1995, at 1.
---------------------------------------------------------------------------
Many judges who listen to or review police testimony on a regular
basis privately agree with Judge Alex Kozinski of the U.S. Court of
Appeals for the Ninth Circuit, who publicly stated: ``It is an open
secret long shared by prosecutors, defense lawyers and judges that
perjury is widespread among law enforcement officers,'' and that the
reason for it is that ``the exclusionary rule . . . sets up a great
incentive for . . . police to lie to avoid letting someone they think
is guilty, or they know is guilty, go free.'' \14\ Or, as Judge Irving
Younger explained, ``Every lawyer who practices in the criminal courts
knows that police perjury is commonplace.'' \15\
---------------------------------------------------------------------------
\14\ Stuart Taylor, Jr., For the Record, American Lawyer, Oct.
1995, at 72.
\15\ Irving Younger, The Perjury Routine, The Nation, May 8, 1967,
at 596-97.
---------------------------------------------------------------------------
As these judges attest, this could not happen without active
complicity of many prosecutors and judges. Yet there is little apparent
concern to remedy that serious abuse of the oath to tell the truth--
even among those who now claim to be so concerned with the corrosive
influences of perjury on our legal system. The sad reality appears to
be that most people care about perjury only when they disapprove of the
substance of the lie or of the person who is lying.
A perfect example of selective morality regarding perjury occurred
when President George Bush pardoned former Secretary of Defense Caspar
Weinberger in 1992, even though physical records proved that Weinberger
had lied in connection with his testimony regarding knowledge of Iran
arms sales. Not only was there no great outcry against pardoning an
indicted perjurer, some of the same people who insist that President
Clinton not be allowed to ``get away'' with lying were perfectly
prepared to see Weinberger ``get away'' with perjury. Senator Bob Dole
of Kansas spoke for many when he called the pardon a ``Christmas Eve
act of courage and compassion.'' \16\
---------------------------------------------------------------------------
\16\ Elaine Sciolino, On the Question of Pardons, Dole has Taken
Both Sides, The New York Times, 16 Oct. 1996, at A15.
---------------------------------------------------------------------------
The real issue is not the handful of convicted perjurers appearing
before this committee, but the hundreds of thousands of perjurers who
are never prosecuted, many for extremely serious and calculated acts of
perjury designed to undercut constitutional rights of unpopular
defendants.
If we really want to reduce the corrosive effects of perjury on our
legal system, the place to begin is at or near the top of the perjury
hierarchy. If instead we continue deliberately to blind ourselves to
pervasive police perjury and other equally dangerous forms of lying
under oath and focus on a politically charged tangential lie in the
lowest category of possible perjury (hiding embarrassing facts only
marginally relevant to a dismissed civil case), we would be reaffirming
the dangerous message that perjury will continue to be a selectively
prosecuted crime reserved for political or other agenda-driven
purposes.
A Republican aide to this committee was quoted by The New York
Times as follows:
In the hearing, we'll be looking at perjury and its
consequences, and whether it is tenable for a nation to have
two different standards for lying under oath; one for the
President and one for everyone else.\17\
---------------------------------------------------------------------------
\17\ Eric Schmitt, Panel Considers Perjury and Its Consequences,
The New York Times, Nov. 28, 1998, at A13.
On the basis of my research and experiences, I am convinced that if
President Clinton were an ordinary citizen, he would not be prosecuted
for his allegedly false statements, which were made in a civil
deposition about a collateral sexual matter later found inadmissible in
a case eventually dismissed and then settled. If President Clinton were
ever to be prosecuted or impeached for perjury on the basis of the
currently available evidence, it would indeed represent an improper
double standard: a selectively harsher one for the president (and
perhaps a handful of other victims of selective prosecution) and the
---------------------------------------------------------------------------
usual laxer one for everyone else.
Mr. Gekas [presiding]. The members of the committee will
refrain from demonstrations. That is not part of the decorum of
this committee.
The time of the witness has expired, and we now turn to
Professor Saltzburg.
STATEMENT OF STEPHEN A. SALTZBURG, HOWREY PROFESSOR OF TRIAL
ADVOCACY, LITIGATION, AND PROFESSIONAL RESPONSIBILITY, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Saltzburg. Thank you. Mr. Chairman, members of the
committee, the conflict among you is as understandable as it is
powerful. On the one hand it is totally unacceptable to anyone
interested in fair and equal justice to say that if the
President committed perjury in a Federal court or before a
Federal grand jury, he should get away with it because he is
President. We cannot excuse perjury in the most highly
publicized case involving the most powerful official, if we
expect the oath to be taken seriously by future witnesses.
On the other hand, our Constitution uses carefully chosen
words when it limits impeachable offenses to bribery, treason
and other high crimes and misdemeanors. There is a strong
argument that perjury, as offensive as it is, does not amount
to corruption of or abuse of office when the false answers
relate to questions that do not address the President's
official acts and duties.
There is reason, good reason then, why members of the
committee, the full House and the public are conflicted. They
want to condemn lying and deceit and have their government
teach that truth matters, while at the same time protecting
this President and future Presidents from impeachment charges
that do not rise to the level of misconduct that would justify
removal from office. Is there a way to resolve the conflicts,
condemn lying and deceit, affirm truth, and limit the scope of
impeachment at the same time? I think there is, and that is
what I want to talk about.
Judge Starr testified accurately, in my view, that some of
the answers that the President gave in the Paula Jones
deposition were ``not true,'' or were ``false.'' This is very
different from saying, as some have, that the President
committed perjury in giving these answers.
An example will help to make my point. During the Jones
deposition, the President was asked to use a very carefully
crafted definition of sexual relations. That definition defined
certain forms of sexual contact as sexual relations, but for
reasons known only to the Jones lawyers, limited the definition
to contact with any person for the purpose of gratification. It
is not at all clear that the President's interpretation of the
definition of ``any person'' as meaning other than himself was
unreasonable. The question could have been worded much more
clearly, and crass and unkind as it might be to suggest it, it
is also unclear whether the President sought to gratify any
person but himself. Thus, his answers might, in fact, be true,
rather than false.
Now, some of you will wince and say, aha, semantics,
wordsmithing. But you must face the fact that you cannot
investigate perjury allegations without considering the state
of mind and intent of a witness, and all of the things that
might be on a witness's mind are relevant to a perjury inquiry.
Indeed, once you recognize the difficulty of investigating
perjury, the beginning of an answer emerges to my question of
how to resolve the conflicts that divide you and the American
people.
In considering past impeachments involving Federal judges
who can be indicted while in office, the Congress generally has
waited to let the criminal process work. Only after a judge was
convicted of perjury did you consider impeachment. The
President's unique constitutional role makes it unlikely that
he can be indicted and/or prosecuted while in office, so you do
not have the option of waiting, but you do have the option of
deciding that allegations of perjury that do not involve
corruption of or abuse of office should not give rise to an
impeachment investigation or charge, because perjury is an
elusive crime to prove, involves subjective judgments that are
especially difficult to make in a politically charged
environment, and when rising out of personal conduct is too
attenuated from the official duties of the President.
I respectfully suggest to you that whether or not the
President is guilty of perjury, he certainly answered questions
in the Paula Jones deposition in a way that intended to mislead
the Paula Jones lawyers about his relationship with Monica
Lewinsky. I understand the President's predicament.
Understanding the President's predicament, however, is not to
excuse it. He could have conceded liability, thereby avoiding
the need to answer questions. He could have refused to answer
questions about Ms. Lewinsky and suffered the consequences. He
could have sought to make an ex parte submission to the court.
He could have done many things, but he was not entitled to
mislead. The President made the wrong choice, and there must be
consequences for that.
It is my firmly held view, however, that this committee has
focused too much on whether the President actually committed
perjury. It would be and it is dangerous to send a message that
testimony is acceptable as long as it is not perjurious. This
committee has the opportunity to promote the rule of law and to
emphasize the importance of truth in judicial proceedings if it
declares that no witness, not the President, not anybody, may
deliberately deceive a court and deliberately create a false
impression of facts. This is not exclusively a Republican or a
Democratic notion, it is what ordinary, honest Americans want
and expect from their judicial system.
I refer you in my written testimony to a Washington State
case that I tried and won in which a law firm and a company
were punished for making false and misleading, not perjurious,
statements. If you agree with me that misleading a court is
wrong, whether or not it is perjurious, then your path is
clear. It involves two steps. One is collective, and one is
individual. You should be able to unanimously agree upon a
resolution that condemns the President for doing what he
obviously did, which was answering questions in the Jones
deposition to deceive the court and the lawyers, to condemn the
President for defending that conduct before the grand jury, and
to condemn him for lying to the American people. Such a
resolution is perfectly consistent with your constitutional
responsibilities. Nothing in the Constitution suggests that
when a President engages in conduct that is reprehensible, but
not impeachable, Congress must be silent.
Any resolution passed by both Houses of Congress would be
placed before the President. Placing such a resolution before
him would enable him to act with honor by signing it or to veto
it and face the condemnation of the American people. That is
the collective step.
The individual step is equally important. Each of you has
the right to communicate, if you choose, your belief that
Federal District Judge Wright should consider whether to impose
sanctions on the President for his testimony in the Paula Jones
case. Even though the case has been settled, Judge Wright
retains power to sanction misbehavior litigation that was
before her.
I believe it is important for Judge Wright to consider and
to impose sanctions on the President. I say this because if I
were in the Department of Justice and received strong evidence
that a witness in a Federal civil deposition lied under oath,
my reaction in almost every case would be to refer the evidence
to the Federal judge to whom the case was assigned. It is hard
to imagine using scarce prosecutorial resources to investigate
the matter when the court and at least one party in a civil
case have every incentive to do the investigation, to correct
any injustice that occurred, and to sanction misbehavior.
Judge Wright is in many respects the only hero I see in
this matter. Out of respect for the Presidency, she personally
was present when the Jones lawyers presented their questions.
She narrowed the definition of sexual relationship to protect
the President. She fought to make a gag order work to protect
both sides against embarrassment, and, though appointed by a
Republican President, she found insufficient evidence to
justify Paula Jones a jury trial.
My speculation is that Judge Wright stayed her judicial
hand, while this impeachment inquiry is ongoing, not wanting to
intrude or to have the judicial branch perceived as even
slightly partisan. But if this committee ends its
investigation, she should punish the President. She should send
a clear message to all future witnesses. If she does so, she
should satisfy any legitimate interest in promoting truth
identified by the committee or by the independent counsel. If
she does, and you agree to censure his conduct, we will have
resolved the conflicts that divide you. In doing so, the
government will teach the importance of truth and of
responsibility; we will condemn lying and deceit and assure
that consequences attach to witness misconduct, and we will
carefully and properly reserve the political death penalty of
impeachment for behavior more closely related to conduct of
office than this President's.
[The prepared statement of Mr. Saltzburg follows:]
Prepared Statement of Stephen A. Saltzburg, Howrey Professor of Trial
Advocacy, Litigation, and Professional Responsibility, George
Washington University Law School
In any discussion about perjury it is important to begin with two
counterintuitive facts: (1) the making of a false statement under oath
is not necessarily perjury; and (2) lying under oath is not necessarily
perjury. A witness does not commit perjury unless the witness makes a
false statement knowing it is false and intending to make the false
statement, and the false statement relates to a material matter.
American judges and lawyers have dealt with the crime of perjury
for more than 200 years. They know that it is a crime that we purposely
make difficult to prove. We make it difficult to prove because we know
that putting any person under oath and forcing that person to answer
``under penalty of perjury'' is a stressful experience. Anyone who has
been a witness in any formal proceeding knows how stressful it can be.
Honest mistakes are made, memories genuinely fail, nervous witnesses
say one thing and in their minds hear themselves saying something
different, and deceit in answers to questions about relatively trivial
matters that could not affect the outcome of a proceeding but that
intrude deeply into the most private areas of a witness's life causes
little harm.
Like so many Americans, I have read the referral that Judge Starr
submitted, I watched him testify before this Committee, and I am
familiar with the testimony before the Committee on November 9th of
some of my law professor colleagues and others about the meaning of
``high Crimes and Misdemeanors.'' What I have seen, heard and read has
led me to conclude that many members of the Committee and probably many
more members of the full House are conflicted in their thinking about
the referral that has been presented.
On the one hand, it is totally unacceptable to anyone interested in
fair and equal justice to say that, if the President committed perjury
in a federal court or before a federal grand jury, he should get away
with it because he is President, the economy is good, or we are at
peace. We cannot excuse perjury in the most highly publicized case
involving the most powerful official if we expect the oath to be taken
seriously by future witnesses. Let's be honest. No one here can or
should bear the thought of witnesses lying under oath in the future and
telling themselves that their lies are acceptable because of what they
think the President did--namely, make a private judgment that it was
more important to protect himself than to advance the search for truth.
Government is the great teacher. We cannot permit it to teach us that
lying under oath is acceptable.
On the other hand, our Constitution uses carefully chosen words
when it limits impeachable offenses to bribery, treason, and other high
crimes and misdemeanors. Although the debates on the impeachment
language in the Constitution were sparse, there is solid support for
the conclusion that the framers intended to limit impeachment to
corruption of or abuse of office. There is a strong argument that
perjury, as offensive as it is, does not amount to corruption of or
abuse of office when the false answers relate to questions that do not
address the President's official acts and duties. There is a clear
danger to the Presidency of defining impeachable offenses too broadly,
lest every opposition party seek to define every future instance of
presidential misconduct as a crime in order to initiate an impeachment
inquiry.
There is reason, good reason, then, why members of this Committee,
the full House, and the public are conflicted. They want to condemn
lying and deceit and have their government teach that truth matters
while at the same time protecting this President and future Presidents
from impeachment charges that do not rise to the level of misconduct
that would justify removal from office.
Is there a way to resolve the conflicts, condemn lying and deceit,
affirm truth, and limit the scope of impeachment? I think there is, and
that is what I want to talk about now.
Judge Starr testified, accurately in my view, that some of the
answers that the President gave in the Paula Jones deposition were
``not true'' or were ``false.'' This is very different from saying, as
some have, that the President committed perjury in giving these
answers. That is far from clear. Let me give you an example. The
President was asked whether he had ever been alone with Monica Lewinsky
and answered that he had not, except perhaps when she had delivered
pizza. If we accept the account of the relationship between Ms.
Lewinsky and the President found in the Starr referral, we know that on
various occasions only the President and Ms. Lewinsky were in
particular locations in the White House. Thus, most of us would regard
the President's answer as false. Now, the President's explanation
appears to be that the door to the Oval Office was never completely
closed and/or that Ms. Currie was always in an adjacent area. Is this
explanation persuasive? Not to me. It is difficult for me to imagine
the President at a news conference asked whether he had met alone with
a visiting Head of State and answering ``no,'' because he recalled that
Ms. Currie was in an adjacent office. But, is it clear that the
President committed perjury? Not to me. It is one thing to say that his
use of the word ``alone'' is unpersuasive, and quite another to say
that he intended to testify falsely as opposed to narrowly.
One other example will suffice to make the point. During the Jones'
deposition, the President was asked to use a very carefully crafted
definition of sexual relations. That definition defined certain forms
of sexual contact as sexual relations but, for reasons known only to
the Jones lawyers, limited the definition to contact with any person
for the purpose of gratification. It is not at all clear that the
President's interpretation of the definition of ``any person'' as
meaning other than himself was unreasonable. The question could have
been much more clearly worded. And, crass and unkind as it might be to
suggest it, it is also unclear whether the President sought to gratify
any person but himself. Thus, his answers might in fact be true rather
than false.
Some of you surely will wince and say that this is semantics, word-
smithing. But, you must face the fact that you cannot investigate
perjury allegations without considering the state of mind and intent of
a witness, and all of the things that might be on a witness's mind are
relevant to a perjury inquiry.
Indeed, once you recognize the difficulty of properly investigating
perjury, the beginning of an answer emerges to my question of how to
resolve the conflicts that divide you and the American people. In
considering past impeachments involving federal judges, who can be
indicted while in office, the Congress generally has waited to let the
criminal process work. Only after a judge was convicted of perjury did
you consider impeachment.
The President's unique constitutional role makes its unlikely that
he can be indicted and/or prosecuted while in office. So, you do not
have the option of waiting until the criminal process works before
considering impeachment. But, you do have the option of deciding that
allegations of perjury that do not involve corruption of or abuse of
office should not give rise to an impeachment investigation, because
perjury is an elusive crime to prove, involves subjective judgments
that are especially difficult to make in a politically charged
environment, and when arising out of personal conduct is too attenuated
from the official duties of the President.
You have the option of making this decision while also sending a
clear message about the government as teacher. It is the role of
government as teacher that I want now to address.
I respectfully suggest to you that, whether or not the President is
guilty of perjury, he certainly answered questions in the Paula Jones
deposition in a way that intended to mislead the Paula Jones lawyers
about his relationship with Monica Lewinsky.
I understand the President's predicament. He feared that the truth
about Ms. Lewinsky would provoke the public condemnation that
ultimately was visited upon him. He feared that, gag orders
notwithstanding, any testimony he gave would become public, a
reasonable fear in my judgment having seen the response by the Jones
team to the President's motion for summary judgment. He believed that
Ms. Lewinsky had not been rewarded as a result of their relationship,
but instead had been unceremoniously moved from the White House to the
Pentagon. As a result, he reasonably believed that the Lewinsky affair
did not fit any claim of a pattern of rewards and punishments as
alleged by the Jones team.
Understanding the President's predicament is not to excuse it. He
could have conceded liability, thereby avoiding the need to answer
questions. He could have refused to answer questions about Ms. Lewinsky
and suffered the consequences. He could have sought to make an ex parte
submission to the court. He could have done many things. But, he was
not entitled to mislead the court and the Jones lawyers, even if he did
not lie. And, as a lawyer and the highest ranking law enforcement
officer in the land with a duty to see that the laws are faithfully
executed, he had a duty to assure that his lawyer did not file a false
affidavit that would mislead the court.
The President made the wrong choice, and there must be consequences
for that. It is my firmly held view that this Committee has focused too
much on whether the President actually committed perjury. Resolving
that question by the Congress is not worth the candle in my view given
the attenuation of the alleged perjury to the President's official
duties. Moreover, the Committee ought to recognize that it would be
dangerous to send a message that testimony is acceptable as long as it
is not perjurious. That is the wrong message for future witnesses.
This Committee has the opportunity to promote the rule of law and
to emphasize the importance of truth in judicial proceedings if it
declares that no witness--not the President, not anybody--may
deliberately deceive a court and deliberately create a false impression
of facts. This is not exclusively a Republican or Democratic notion. It
is what ordinary, honest Americans want and expect in their judicial
system.
A unanimous Washington State Supreme Court accepted this argument
in Washington State Physician Insurance Exchange & Assoc. v. Fisons
Corp., 122 Wash. 2d 299, 858 P.2d 1054 (1993). In that case, sanctions
were awarded against a law firm and its client company for withholding
documents. The defendant drug manufacturer, sued by the family of a
brain-injured young child and her doctor, promised to provide in
discovery all documents relating to the product that caused the brain
damage, Somophyllin Oral Liquid (SOL). After the family settled with
the company and shortly before the doctors's suit was to go to trial, a
document leaked to the doctor's lawyer resulted in the disclosure that
the company and its counsel had withheld some 60,000 pages of documents
involving ``theophylline'' which is the only active ingredient in SOL.
The company had advertised to doctors that ``Somophylline is
theophylline,'' but unbeknownst to the plaintiffs had never told them
that when it promised to produce all documents relating to SOL it had
decided unilaterally that all documents related to theophylline did not
relate to SOL. According to the appellate counsel for the company and
its trial lawyers, the concealment of the documents was nothing more
than ``ducking and dodging'' which goes on all the time in litigation.
My argument in that case was that ``ducking and dodging'' that
amounts to deceit or fraud on the court is wrong, it is sanctionable,
and it is wrong whether or not it amounts to perjury. Had my argument
failed, I and many other law teachers would have had to decide whether
we wanted to teach our students that they had to learn how to engage in
deceit, misrepresentation and fraudulent concealment short of perjury.
But, we won and established the principle that I urge upon you today:
Every witness, especially the President, has a duty to provide answers
under oath that are not intended to mislead the tribunal about the
truth. It is not enough to avoid perjury; a commitment to the truth is
required. The President has an additional obligation not imposed upon
ordinary witnesses: to be honest with the American people even when not
under oath.
If you agree with me, your path is clear and involves two steps,
one collective and one individual. You should be able to unanimously
agree upon a resolution that (a) condemns the President for doing what
he so obviously did, answering questions in the Jones deposition in a
way that he intended and knew would mislead the Jones team about his
relationship with Ms. Lewinsky and permitting his lawyer to file an
affidavit that he knew was misleading as it was characterized to the
court, (b) condemns the President for defending his deposition conduct
before the grand jury and for failing to recognize at a minimum that he
had misled the court, and (c) condemning the President for lying to the
American people. Should you pass such a resolution, it could be
forwarded to the Senate which could then decide whether or not to
support it.
Such a resolution is perfectly consistent with your constitutional
responsibilities. Nothing in the Constitution suggests that, when a
President engages in conduct that is reprehensible but not impeachable,
Congress must be silent. Any resolution passed by both Houses of
Congress would be placed before the President. Placing such a
resolution before him would enable him to act with honor by signing it
or to veto it and thereby maintain that he sees no problems with his
testimony and representations to the people. The resolution would be a
responsible action by Congress. Signing it would be a responsible
action by the President. This is the collective step.
The individual step is equally important. Each of you has the right
to communicate, if you choose, your belief that Federal District Judge
Susan Weber Wright should consider whether to impose sanctions on the
President for his testimony in the Paula Jones case. Even though the
case has been settled, Judge Wright retains power to sanction
misbehavior in litigation that was before her.
I believe it is important for Judge Wright to consider and to
impose sanctions upon the President. I explain why as I come to an end.
If I were in the Department of Justice and received strong evidence
that a witness in a federal civil deposition lied under oath, my
reaction in almost every case would be to refer the evidence to the
federal judge to whom the case was assigned. It is hard to imagine
using scarce prosecutorial resources to investigate the matter when the
court and at least one party in the civil case have every incentive to
do the investigation, to correct any injustice that occurred, and to
sanction misbehavior.
This would have been the likely scenario with respect to the
President but for the existence of an Independent Counsel who perceived
that aspects of the Lewinsky matter might relate to his ongoing
investigation. The end result was that the President has been
investigated as no other person would have been. No other citizen would
have agreed to testify without immunity to a grand jury that wanted to
ask whether the citizen lied in a deposition. The President concluded,
wrongly in my view, that he should testify. As a result he endeavored
to defend the indefensible.
Judge Wright is in many respects the only hero I see in this
matter. Out of respect for the Presidency, she was personally present
when the Jones lawyers questioned the President. She narrowed their
definition of sexual relationship to protect the President. She fought
to make her gag order work to protect both sides against embarrassment.
And, though appointed by a Republican President, she found insufficient
evidence to justify Paula Jones a jury trial. Whether right or wrong in
the end, Judge Wright demonstrated a respect for a coequal branch of
government and a commitment to honest, impartial decisionmaking. She is
a reminder of the vital importance of an independent, high quality
judiciary.
My speculation is that Judge Wright has stayed her judicial hand
while this impeachment inquiry is ongoing, not wanting to intrude or to
have the judicial branch perceived as even slightly partisan. If this
inquiry ends, she is free to act. If you share my view that, whether or
not the President committed perjury, he misled the court, failed to
demonstrate a commitment to the truth, and failed to act as a lawyer
and chief executive officer should, then you can join me in urging that
Judge Wright assert herself in this matter as she would if misconduct
by any other witness became apparent. She should punish the President
and send a clear message to all future witnesses. If she does so, she
should satisfy any legitimate interests in promoting truth identified
by the Committee or the Independent Counsel.
If she does and you agree to censure his conduct, we will have
resolved the conflicts that divide you. In doing so, the government
will teach the importance of truth and responsibility, we will condemn
lying and deceit and assure that consequences attach to witness
misconduct, and we will carefully and properly reserve the political
death penalty of impeachment for behavior more closely related to
conduct of office than this President's.
Mr. Gekas. The time of the witness has expired. We now turn
to Professor Rosen.
STATEMENT OF JEFFREY ROSEN, ASSOCIATE PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Rosen. Thank you, Mr. Chairman. It is a great honor to
be here today.
This is, I think Democratic and Republican Members may
agree, a brutal and unforgiving time in American politics, in
which ordinary citizens and their elected representatives are
increasingly threatened with punishment for relatively minor
transgressions of the kind that the law used to excuse.
Responsibility for this unhappy state of affairs can be traced
in the post-Watergate era to the explosive convergence of three
novel and expanding sets of laws: the sexual harassment laws,
the laws prohibiting lies to Federal officials, and the
independent counsel law.
President Clinton deserves his share of blame for the
expansion of these laws, and it is only fair that he be held
accountable to them. Nevertheless, the appropriate response to
the allegations against the President lies not in impeachment
or in removal from office, but in congressional censure
combined with the possibility of criminal prosecution or civil
sanctions after the President leaves office.
This committee, I think, deserves great credit for focusing
the attention of the Nation on the ways in which people can and
are severely punished for highly technical violations of the
laws against lying. In that sense, I thought the testimony this
morning was terribly useful. But it is surely significant that
neither the independent counsel nor anyone else, to my
knowledge, has been able to identify a case where a defendant
was prosecuted, let alone convicted, for peripheral statements
in a civil proceeding that he or she did not initiate in order
to derive some kind of benefit. This coincides with the
traditional reluctance in American law to prosecute perjury
based simply on statements asserting one's innocence.
Because defendants have traditionally been viewed as
inherently unreliable, their testimony, unlike that of
witnesses, was not taken under oath until after the Civil War.
Judges recognize that the instinct for self-preservation is so
strong that a guilty defendant will naturally be tempted to lie
to protect himself, and it was considered a form of moral
torture to force an accused to choose between incriminating
himself on the one hand and facing eternal damnation for
betraying his oath to God on the other.
In Jones v. Clinton, the Supreme Court established that a
sitting President can be sued and personally deposed and his
private life subject to wide-ranging discovery, even about
conduct that preceded his inauguration. In an increasingly
partisan environment, any remotely plausible lawsuit against a
President will find ample funding, and inevitably there will be
a clash of testimony.
Now, in ordinary civil suits this is nothing to worry
about. Assessment of credibility, after all, is the main
function of a jury, and people who lie in civil depositions are
ordinarily punished by losing the case rather than being
prosecuted for perjury. Paula Jones, for example, is not
threatened with a perjury prosecution, even though she may have
misstated the degrees of her salary increases. If this
President is impeached for lying during civil discovery,
however, every time a future President's testimony is
contradicted under oath, an impeachment inquiry may have to be
triggered; and the country and President will again be
distracted in ways whose costs are hard to measure.
The most serious allegation against President Clinton is
that he may have committed perjury before the grand jury when
he contradicted Ms. Lewinsky's assertion that he touched her
breasts and genitals with an intent to gratify her. It seems
implausible on the one hand that the core of the President's
defense to the charges against him is that he didn't intend to
arouse or gratify Ms. Lewinsky when he touched her. But
wouldn't it be equally implausible to impeach the President of
the United States on the grounds that he committed perjury when
he denied that he intended to arouse Ms. Lewinsky?
This committee chose not to ask the President to clarify
his state of mind about this embarrassing subject when it
submitted 81 questions to him, and therefore, an impeachment
count on this ground might fall short of the clear and
convincing evidence standard that governed you during the
Watergate impeachment hearings.
This is an indiscreet subject, but let me close with a call
for prosecutorial discretion. Many of you are understandably
concerned about establishing a double standard. Why should
ordinary citizens be convicted of perjury for lying about sex
while the President escapes punishment? But this concern is
unfounded. If you exercise your discretion not to impeach the
President, he will still be subject after he leaves office to
precisely the same legal penalties as the witness who testified
so movingly before us this morning: possible criminal
prosecution and conviction, as well as possible civil sanctions
or disbarment. Indeed, you may well choose to rebuke the
President with a reputational sanction that no ordinary citizen
faces: a congressional resolution of censure.
The Lewinsky investigation has been, in many ways, a
nightmare for the country, but it has also been, for all of us,
a constitutional education, reminding us that even well-
intended laws can have illiberal consequences when they are
expanded beyond their historical roots. By reclaiming your
constitutional duty to exercise your sole power of impeachment,
which includes the power not to impeach, you can offer the
country an inspiring example of statesmanship, while at the
same time rebuking the President for his reckless conduct in a
way that will remain a permanent part of his legacy. Thank you.
[The prepared statement of Mr. Rosen follows:]
Prepared Statement of Jeffrey Rosen, Associate Professor of Law, George
Washington University Law School
My name is Jeffrey Rosen. I am an associate professor at the George
Washington University Law School, where I teach constitutional law and
criminal procedure. I am also the legal affairs editor of The New
Republic and a staff writer for The New Yorker. It is a great honor to
be here to today to testify about ``The Consequences of Perjury and
Related Crimes.''
This is, I think Republican and Democratic members will agree, a
brutal and unforgiving time in American politics, when ordinary
citizens and their representatives are increasingly threatened with
punishment for relatively minor transgressions of the kind that the law
used to excuse. Responsibility for this unhappy state of affairs can be
traced, in part, to the convergence of three sets of laws--the sexual
harassment laws, the laws prohibiting lies to federal officials, and
the Independent Counsel law--which have been recklessly expanded in the
post-Watergate era. President Clinton deserves his share of the blame
for the expansion of these laws, and it is only fair that he should be
held accountable to them. But the appropriate legal response to the
allegations against the president lies not in impeachment or removal
from office, but in congressional censure, combined with the
possibility of criminal prosecution or civil sanctions after the
president leaves office. The well-intentioned but ill-advised
Independent Counsel law has already wreaked enough havoc on our
constitutional order. If you let it further distort the standards for
impeachment, our system of government will be altered, with
consequences that are beyond our power to imagine.
In the course of preparing an article about perjury for The New
Yorker last August, I was struck by the degree to which the public
appears to recognize instinctively what the law has long acknowledged:
that lies vary in degree and in kind, and that they should be treated
accordingly. Historically, American law has been sensitive to the
distinction among different kinds of lies, and American prosecutors and
judges have made allowances for human frailty. They have examined a
liar's state of mind, the seriousness of the lie, and its effects on
other people, before deciding which lies deserve to be punished. In the
post-Watergate era, however, thanks to an unfortunate combination of
judicial decisions and overreaching by Democratic and Republican
prosecutors and independent counsels, the laws of perjury and
obstruction of justice have been expanded far beyond their historical
roots. As a result, there is now a gap between the kinds of lies that
most people think should be illegal and those the law actually forbids.
And this greatly increases the importance of prosecutorial discretion--
the central question you face as you debate whether or not to impeach
the president of the United States.
There is no doubt that some independent counsels and ordinary
prosecutors in the post-Watergate era have abused their discretion,
indicting people for relatively trivial lies. This is why I think you
and your colleagues, Chairman Hyde, have performed an important service
by focusing the nation's attention on the degree to which people's
lives can be destroyed for highly technical violations of the laws
against lying. But many of these cases are cautionary tales of
prosecutorial excess to be avoided, not examples to be emulated.
Morever, the convicted perjurers from whom we will hear this morning
told lies that met the legal standard for perjury beyond reasonable
doubt: that is to say, they were clearly intentional and highly
material to the legal proceedings in which they were told. By contrast,
it is far less clear that a jury would convict the president of the
United States for perjury in the Paula Jones case, in the face of his
testimony that he believed his statements were legally accurate when he
made them, and the fact that reasonable people can disagree about
whether or not the statements were material to the case at the time
they were told. If one thing is clear from the history of past
Independent Counsel investigations, it is that juries, faced with
ambiguous charges of perjury, often give the defendant the benefit of
the doubt: when Lawrence Walsh prosecuted Oliver North for lying to
Congress, a Washington, DC, jury refused to convict.
You, of course, are meeting not as an ordinary grand jury, but in
your most extraordinary constitutional capacity, as grand inquest of
the nation, deciding whether or not to recommend the impeachment of the
president of the United States. And here the case for prosecutorial
discretion is especially strong. There is, I know, disagreement among
you about whether or not high crimes and misdemeanors are limited to
offenses against the structure of government. I agree with those
representatives and scholars who have concluded that constitutional
text and history, as well as congressional precedent, suggest that lies
about private transgressions unconnected to the president's official
duties should not be considered impeachable offenses. But even those of
you who take a far more expansive definition of impeachable offenses--
even if those who believe that it may include perjury that has nothing
to do with the president's official duties--still have the obligation
to ask yourselves not whether you may vote for impeachment, but whether
you should. Just as ordinary prosecutors and grand juries often decide
not to indict crimes that are technically indictable, because they are
unlikely to secure convictions, so you must ask yourself whether it is
worth putting the country through the trauma of an impeachment trial
when both the Senate and the people of the United States have strongly
indicted that conviction, on the current facts, is highly unlikely.
There are special reasons to be concerned about prosecutorial
discretion as you contemplate whether or not to impeach a president for
perjury and obstruction of justice in a civil lawsuit unrelated to his
conduct as president. Such a precedent might put future presidents at
risk in a way that does the country serious harm. In Jones v. Clinton,
the Supreme Court established that a sitting president can be sued and
personally deposed, and his private life subjected to wide-ranging
discovery, even about conduct that preceded his inauguration. In an
increasingly partisan environment, any remotely plausible lawsuit
against a president will find ample funding, far beyond the economic
constraints that ordinarily discipline civil litigation. Inevitably,
there will be a clash of testimony. In ordinary civil suits, this is
nothing to worry about: assessment of credibility is the main function
of the jury; and people who lie in civil depositions are ordinarily
punished by losing the case rather than being prosecuted for perjury.
Paula Jones, for example, is not threatened with a perjury prosecution,
even though the evidence suggests she may not have been telling the
truth when she claimed that her salary increases were diminished after
she rebuffed Governor Clinton's alleged advance.
If the president is impeached for lying during civil discovery,
however, every time a future president's testimony is contradicted
under oath, a serious investigation may have to be triggered. Even if
the Independent Counsel statute is not renewed, as its constitutional
flaws are increasingly obvious to Democrats and Republicans, future
Justice Departments and future House Judiciary Committees will find it
hard to ignore potential offenses no less grave than those that lead to
President Clinton's impeachment. If the House is controlled by the
opposing political party, furthermore, the investigation will gain a
partisan motor. The brutal machinery will again grind into motion, a
special prosecutor will be appointed, and the country and the president
will again be distracted, in ways whose costs are hard to measure.
Many of you are understandably considered about establishing a
double standard. Why should Barbara Battalino be convicted of perjury
for lying about sex in a civil case while the President escapes
punishment? But this concern is unfounded. If you exercise your
discretion not to impeach the president, he will still be subject,
after he leaves office, to precisely the same legal penalties as the
witnesses who are testifying before you today: possible criminal
prosecution and conviction, as well as possible civil sanctions or
disbarment. Indeed, you may well choose to rebuke the president with a
reputational sanction that no ordinary citizen faces: a congressional
resolution of censure, expressing your collective disapproval of his
reckless conduct. But the question before you today is not whether the
president should be liable to ordinary criminal punishment, but whether
impeachment is an appropriate punishment for lying about sex in a
dismissed civil case, despite the fact that the president was elected
twice by the American people and continues to retain their confidence.
It is surely significant that neither the Independent Counsel nor
anyone else, to my knowledge, has been able to identify a case where a
defendant was prosecuted, let alone convicted, for peripheral
statements in a civil proceeding. This coincides with the traditional
reluctance, in American law, to prosecute perjury based simply on
statement's asserting one's innocence. For most of English and American
history, courts avoided putting defendants in situations where they
might be tempted to perjure themselves under any circumstances. Judges
recognized that the instinct for self preservation is so strong that a
guilty defendant will naturally be tempted to lie to protect himself,
and it was considered a form of moral torture to force the accused to
choose between incriminating himself on the one hand and facing eternal
damnation for betraying his oath to God on the other. It's because of a
similar awareness of human frailty that prosecutors traditionally don't
prosecute criminal defendants for perjury after they've taken the stand
to insist on their innocence and are subsequently found guilty.
Because defendants were viewed as inherently unreliable, their
testimony, unlike that of witnesses, was not taken under oath until
after the civil war. Moreover, the way that reform came about was not
exactly a model of enlightenment. After Reconstruction, Southern states
were forced to repeal laws that had prohibited African-Americans from
appearing as witnesses in court. As blacks began to sue to enforce
their newly acquired rights, racist white Southerners worried that
juries might be more likely to believe a black witnesses who had sworn
to the truth of his testimony than a white defendant who had not. So at
the end of the nineteenth century, Southern states began to introduce
the defendant's oath. The famous perjury trials in America, from Alger
Hiss to H.R. Halderman, are twentieth century affairs.
But the most dramatic expansion of the law of lying in America took
place in the post-Watergate era, and it was driven by the passage of
the Independent Counsel Act in 1978. From the beginning, Independent
Counsels who have had difficulty proving the crimes they were appointed
to investigate have tried to justify their labors by indicting people
for lying and obstructing their investigations. The Independent
Counsel's best friend has turned out to be an old law called the False
Statements Act, which prohibits ``any false, fictitious, or fraudulent
statements'' to federal officials, even if the statements weren't made
under oath. Originally adopted during the New Deal to cover any
statements by citizens to government agencies, the law was invoked
during the nineteen-eighties and nineties by a parade of independent
counsels to punish unsworn lies to F.B.I. agents, to Congress, and
eventually, to the independent counsel's themselves. As a result, the
day-to-day enterprise of politics has become a very risky affair.
During the 1980s and 90s, judges worried about the unfairness of
prosecuting people for the entirely natural impulse to deny their guilt
when asked point blank if they were guilty. Everyone expects a suspect
to lie when cornered, after all. To prevent unscrupulous prosecutors
from trapping their targets this way, several federal courts carved out
an exception to the False Statements Act, which they called the
``exculpatory no.'' According to the ``exculpatory no'' doctrine, if
you do nothing more than deny your guilt, without actively misleading
federal investigators, you haven't committed a federal felony. The
``exculpatory no'' doctrine was a short-lived effort by judges to
ensure that the law of lying coincided with our common sense intuitions
about which lies deserve to be punished and which do not, but that
effort turned out to be short lived. Last January, in Brogan v. U.S.,
the Supreme Court ruled that lower-court judges had exceeded their
authority by creating an ``exculpatory no exception.'' In a separate
opinion, Justice Ruth Badger Ginsburg worried that ``an overzealous
prosecutor or investigator--aware that a person has committed some
suspicious acts, but unable to make a criminal case--will create a
crime by surprising the suspect, asking about those acts, and receiving
a false denial.''
Like the false statements act, the perjury and obstruction of
justice laws have been expanded in the post-Watergate era so that they
no longer require active misleading and are sometimes invoked to punish
purely self-protective lies. In his legal referral, for example, the
Independent Counsel points to the Battalino case to support his claim
that false denials of sexual relations in connection with a pending
civil proceeding can form the basis of an obstruction of justice
charge. A Veteran's Administration psychiatrist named Barbara
Battalino, whose testimony we will hear today, resigned after her
supervisors learned that she was having an affair with one of her
patients, a man named Edward Arthur. Mr. Arthur later sued for medical
malpractice, and Ms. Battalino asked the U.S. Attorney for the District
of Idaho to ``certify'' her under for coverage under the Federal Tort
Claims Act. Interviewed by attorneys for the United States, Ms.
Battalino denied that she had engaged in sexual relations with Arthur
in her office on June 27, 1991. She was certified for coverage relating
to conduct on or before, but not after June 27, 1991, and on appeal,
she again denied, in a hearing before a magistrate, that anything of a
sexual nature took place in her office on June 27, 1991. In April,
1998, Ms. Battalino was charged with obstructing justice by falsely
denying that she had ``performed oral sex'' on Arthur in her office.
Shortly after, she pleaded guilty to obstruction of justice.
But there is an obvious and important difference between the
Battalino case and the allegations against the president. Ms.
Battalino's attempt to hide the timing of her sexual encounter with Mr.
Arthur was the central question at issue in the civil suit against her,
and it also went to the heart of her effort to get the federal
government to cover any damages that Mr. Arthur might be awarded. As a
result, Ms. Battalino's false statements look almost like an attempt to
defraud the government, and are therefore far more material than the
president's statements about his relationship with Monica Lewinsky,
which were peripheral, at best, to the Paula Jones case. The analogy
would be more precise if, while the Paula Jones suit was pending,
President Clinton had filed for coverage under the federal tort claims
act, and in the course of appealing the denial of his claim, had denied
in a court hearing that he had ever met Paula Jones.
To support his argument that withholding evidence in a civil
proceeding can constitute obstruction of justice, the Independent
Counsel also points, in his legal referral, to the recent Texaco case
in New York, in which federal prosecutors indicted two former Texaco
executives, Robert Ulrich and Richard Lundwall, for conspiring to
obstruct justice when they discussed withholding documents in a
discrimination suit against the company. But the Texaco case shows how
rarely the obstruction of justice statute is applied in this context.
The prosecution arose out of the political firestorm that followed a
report in The New York Times that a group of Texaco executives that
included Ulrich and Lundwall had been caught on tape using racial
epithets. Although it later emerged that the reports of racial epithets
were exaggerated, Texaco responded by docking the retirement benefits
of Ulrich and Lundwall and settling the antidiscrimination suit for
$176 million. Public outrage, however, was so intense that Mary Jo
White, the U.S. Attorney for the Southern District of New York, felt
moved to go further, and she indicted Lundwall and Ulrich for
obstruction of justice, pointing to the fact that they had placed
certain documents in a folder marked ``withheld from legal'' in the
Texaco case. Lundwall and Ulrich successfully argued that this was the
first time in 166 years that the federal obstruction of justice law had
been invoked to punish someone for withholding documents in a civil
case that hadn't even been subpoenaed by the other side. Their lawyers
convincingly portrayed them as innocent but legally unsophisticated
employees, who had tried to separate the relevant documents from ones
they thought were irrelevant, including an order form for an egg salad
sandwich at a company lunch. Last May, a federal jury in White Plains
acquitted Lundwall and Ulrich on all counts.
In allowing the unprecedented Texaco prosecution to go forward, the
U.S. District Court for the Southern District of New York stressed the
``great many good reasons why federal prosecutors should be reluctant
to bring criminal charges relating to conduct in ongoing civil
litigation. Civil litigation typically involves parties protected by
counsel who bring frequently exaggerated claims that, under supervision
of a judicial officer, are narrowed and ultimately compromised during
pretrial proceedings. Prosecutorial resources would risk quick
depletion if abuses in civil proceedings--even the most flagrant ones--
were the subject of criminal prosecutions rather than civil remedies.
Thus, for numerous prudential reasons, prosecutors might avoid entering
this area.'' The ultimate acquittal of the Texaco defendants suggests
that prosecutors who fail to exercise discretion in close cases
involving allegations of perjury or obstruction of justice are unlikely
to persuade ordinary citizens to convict.
The most serious allegation against the president is that he may
have committed perjury before the grand jury when he appears to have
contradicted Ms. Lewinsky's assertion that he touched her breasts and
genitals with an intent to gratify her. But the President's denial was
phrased with typically exquisite legalisms: He testified: ``If you had
direct contact with intent to arouse or gratify, that would fall within
the definition . . . You are free to infer that my testimony is that I
did not have sexual relations, as I understood this term to be
defined.'' It seems absurd, on the one hand, that the only thing
standing between the president of the United States and impeachment is
his suggestion that he didn't intend to arouse or gratify Ms. Lewinsky
during their encounters. But it would be equally absurd to impeach him
on the ground that he committed perjury because he actually intended
for her to enjoy herself. Because this committee chose not to ask the
president to clarify his state of mind about this embarrassing subject
during its eighty-one questions to him, an impeachment count on this
ground might fall short of the clear and convincing evidence standard
that governed the Watergate impeachment hearings. Moreover, impeaching
the president based on his failure to admit that he intended to gratify
Ms. Lewinsky would be hard to reconcile with the Watergate Congress's
refusal to vote an impeachment count for President Nixon's alleged
false statements on his tax returns.
Finally, if one takes the view, as many constitutional scholars do,
that the president cannot be criminally indicted while he is in office,
it's arguable that the sole purpose of calling the president before the
grand jury was to obtain testimony from him in order to accuse him of
perjury before the House. This looks uncomfortably like what some
courts have defined as a ``perjury trap,'' and while the precise legal
contours of the perjury trap defense are unsettled, the House can
certainly weigh the possibility that the president was set up by
federal prosecutors, acting indirectly in concert with private
litigants, as it decides whether or not to impeach.
Let me end with a call for prosecutorial discretion. The Lewinsky
investigation has been, in many ways, a nightmare for the country; but
it has also been a constitutional education, reminding all of us that
even well-intentioned laws can have illiberal consequences when they
are expanded far beyond their historical roots. The Independent Counsel
law, we can now see more clearly than ever, has dramatically unsettled
the constitutional balance, creating a politically unaccountable and
unconstrained officer who combines the functions of prosecutor,
impeachment investigator, legislator, judge, and jury. By reclaiming
your constitutional duty to exercise ``the sole Power of impeachment,''
which includes the power not to impeach, you can offer the country a
shining example of statesmanship, while at the same time censuring the
president in a way that will remain an permanent part of his legacy.
Mr. Gekas. Thank you very much, Professor Rosen. We will
now begin the 5-minute rule exposition of the Members of the
committee. We will begin with 5 minutes granted to the
gentleman from Michigan.
Mr. Conyers. Thank you very much. I want to thank every one
of you who have been here today. For us the wait was worth it.
We only hope that it has some small measure of fulfillment for
you yet. I commend everyone here. Let us talk in terms of the
realities that confront the 37 Members in front of you. How do
we move toward the exit door with some small measure of grace,
Judge Higginbotham? How do we put a wrap around this inquiry
for when it is studied by future scholars and by other Members
on the Judiciary Committee? How do we put an end to it even
though we are so fragmented at this point apparently? But
somehow around this one question of perjury, which I think has
been discussed very importantly, Professor Dershowitz, and I
think that we have a frame of reference on it, what do you
think we might want to do? Professor Saltzburg has been most
explicit about that and I thank you for that part of it. But
would you begin this dialogue with us, please? Because that is
the key here. How can we find some path of reconciliation that
will get us with some small measure of honor out of the door
altogether?
Judge Higginbotham. Were you talking to me, sir?
Mr. Conyers. I was.
Judge Higginbotham. More than 100 years ago when Justice
Holmes gave his famous common law lectures, he said that ``the
life of the law has not been logic: it has been experience.''
At another time, he said that a page of history is worth a
volume of logic. It seems to me that you have to put this
impeachment issue within the corridor of history. There is
another poignant reminder chiseled on the walls at Auschwitz
that ``Those who cannot remember the past are condemned to
repeat it.'' If this committee reflects on history and becomes
aware of the fact that there has never been, never been an
impeachment proceeding at such a minuscule level, then it seems
to me you must pause and question whether an impeachment is
appropriate.
Everyone talks about the Nixon experience. But that is as
different as the difference between zero and infinity. In the
Nixon case, he was using the Internal Revenue Service, not
patting some woman on the side, using the Internal Revenue
Service, to engage in improper tax audits and investigation of
political enemies. In the Nixon case, he was attempting to
obtain confidential information maintained by the IRS
concerning political enemies. In the Nixon case, he was using
the Federal Bureau of Investigation, the Secret Service and
other executive personnel to undertake improper electronic
surveillance and other investigatory techniques with regards to
political enemies. In the Nixon case, he was creating and
maintaining a secret investigative unit within the Office of
the President which utilized the resources of the Central
Intelligence Agency, engaged in covert and illegal activities,
and I could name several others that are beyond dispute.
Is that comparable to this? If it is not, then I think
Justice Holmes was right, a page of history is worth a volume
of logic.
Mr. Conyers. Thank you so much, Judge. Professor
Dershowitz, would you elucidate for us, please?
Mr. Dershowitz. I think history will not be kind to this
committee. History will not be kind to this Congress. I think
this committee and this Congress will go down in history along
with the Congress that improperly impeached Andrew Johnson for
political reasons. I think there is no exit strategy that will
permit this committee and this Congress to regain any place in
history which is going to look positively. It made a dreadful
mistake by ever opening up an impeachment inquiry on the basis
of sex lies and coverups of sexual events. It is down that
line. Now it is getting worse. It is like my typical client.
First, he commits the crime and then he compounds the crime by
making it worse. Now it is becoming worse, because now we are
seeing incredible hypocrisy introduced into the debate. ``Oh,
we care so much about perjury. What a terrible thing perjury
is.'' The only reason the majority of this committee cares
about perjury is because they believe that President Clinton,
their political opponent, is guilty of it. They couldn't have
cared less about perjury when Caspar Weinberger was guilty of
it.
Mr. Gekas. The time of the witness has expired and the time
of the gentleman from Michigan has expired.
Mr. Dershowitz. And they don't care at all about perjury by
the police, as evidenced by the lack of attention to this
problem.
Mr. Conyers. Judge Gekas' patience has expired.
Mr. Gekas. That is exactly right. Now you may applaud.
Please don't take me literally.
The Chair now turns to the gentleman from Florida, Mr.
McCollum.
Mr. McCollum. Thank you very much, Mr. Chairman. First of
all, I sat on the Iran-Contra committee and I do not believe
for one minute that Caspar Weinberger committed perjury, but
that is beside the point. I also am chagrined with some other
testimony today that implies that the President of the United
States is irreplaceable. I don't think anybody is
irreplaceable. I don't think anybody is indispensable. I think
Al Gore would make as fine a President as President Clinton. I
don't necessarily agree with him politically but I certainly
do.
I also am very concerned that some have tried to diminish
the nature of the perjury and the obstruction of justice, which
I think there is compelling evidence of. The President
committed perjury, from my reading of every bit of the facts we
have here, and I am really convinced of this the more I have
studied it, and I have studied it a great deal more even this
weekend, when he lied both before the grand jury and in the
Paula Jones case about whether he had sexual relations with
Lewinsky, whether he was alone with her, whether he talked with
her about her testimony and on numerous other occasions, and
not only that but it is very clear that long before she was
subpoenaed in the Jones case, the President and Monica Lewinsky
had an understanding that she would deny and he would deny any
sexual relations if anybody ever asked about it, and then when
she was subpoenaed he suggested that she file an affidavit
knowing good and well that it was going to be false and
encouraged her to do that. And then when there was a subpoena
for her to produce any gifts that he had given to her that
specifically named a hat pin and she wondered why in the world
that was named there and was really worried about it because
that was the first gift she said he ever gave her, he then
conspired with her to hide those gifts from the court. And then
after that, he encouraged his secretary, Betty Currie to lie to
protect him.
Now, all of that to me if proven, and I think it has been
proven in this case and I think it would be proven in any court
of law and a jury would convict him of all of those things,
rises to a very high level of high crimes and misdemeanors. Not
only does it do that, but to me the problem that we see in this
is that there is injury to the Nation, grave injury, if we find
this to be true that the President has committed these crimes
and then we tolerate them, then we don't impeach him.
The real question here today shouldn't be what are the
consequences of perjury, the real question is what are the
consequences of not impeaching the President if he has
committed perjury and obstruction of justice and witness
tampering? What are the consequences? What are the consequences
to the courts with respect to that if we look the other way?
There are parties to every civil lawsuit. Those parties to
every lawsuit out there expect truth to be told. If witnesses
that they call or witnesses who are called lie or encourage
other people to lie or hide evidence or encourage other people
to hide evidence, then the parties to that lawsuit can't get
justice, they can't get a fair judgment. That is what
undermines the court system. And to have the President of the
United States engaging in activities that do that and then we
don't impeach him, he gets away with it, we tolerate it, we
don't hold him accountable, that is the problem. Congress has
that responsibility under the Constitution. I think that is the
injury to the Nation there.
Then with respect to our military, as, Admiral Edney, you
and General Carney well stated and Admiral Moorer said in
written testimony that he didn't give here today, what about
his role as Commander in Chief. When you expect military
officers to be the leaders and you expect military officers to
be, as Admiral Moorer, a former chairman of the Joint Chiefs of
Staff has said to us, to serve as role models for honorable and
virtuous conduct and you find that we don't hold the President
accountable, the Commander in Chief accountable for matters
that officers would be removed for, probably court-martialed
for, what does that do to undermine our military and our good
order and discipline in the military?
So I have two questions to ask. One I want to ask to Judge
Tjoflat and one I want to ask to you, Admiral Edney. Judge
Tjoflat, if we find the President guilty of perjury,
obstruction of justice, and so forth, and do not impeach him,
what injury do you believe this could cause to the justice
system? Are people more likely to commit perjury in the future
if we do that than not? And then because my time is running
out, I want to ask Admiral Edney if we find the President to
have been guilty of perjury, obstruction of justice, and so
forth, and don't impeach him, what does this mean since he is
the Commander in Chief? Does it mean that we are undermining
the trust and confidence you discussed essential to good order
and discipline in the military? Will we be undermining it if we
don't impeach him if we find him guilty of these crimes I just
described?
Judge Tjoflat, would you first respond and then Admiral
Edney.
Mr. Tjoflat. I think your question implies the answer.
Mr. McCollum. And the answer is?
Mr. Tjoflat. If that is the committee's finding, then there
is going to be an effect on the administration of justice.
Mr. McCollum. A negative effect?
Mr. Tjoflat. Yes.
Mr. McCollum. If we don't impeach him?
Mr. Tjoflat. Well, I don't know about the remedy. All I am
saying is if that is the committee's finding, then you have a
negative effect on the administration of justice, if that is
the case.
Mr. McCollum. What about the good order and discipline of
the military, Admiral Edney, you described? I have always heard
the term prejudice to the good order and discipline. Could you
tell us what that means and would we be undermining that if we
didn't impeach the President of the United States if he is
guilty of these crimes that have been described if we find him
so?
Mr. Edney. I don't believe that there is any straight,
clear answer to that, because the military of this country
serve under a different code, which you recognize as the UCMJ,
and the President operates under the civilian laws. The
professional military of this country will perform their duties
in loyalty to the Constitution and the Office of the President.
That is the strength of the military. Will it undermine the
good order and discipline to have that example? That is like
how you ensure safety. But it will not have a beneficial effect
in the ability to measure the disadvantages or the adversarial
effects as far as who stays in the military, who will come in
the military, who will serve and the quality of the people. We
need a portion of this country's best to serve in the military.
It is hard for me to put an exact quantitative statement to
your question, but certainly it is an issue that will not
affect the performance of the military, but it might affect the
quality and the numbers that make it a career.
Mr. Gekas. The time of the gentleman has expired. We turn
to the gentleman from Massachusetts for 5 minutes.
Mr. Frank. Admiral, let me follow up on that because I
gather you are saying that while you can't quantify, and I
appreciate your pointing out we all tend sometimes to be
alarmists and I would certainly agree with you that people that
are in the military now are going to do their best and we
should not assume they are as easily swayed from their duty and
people will make that on both sides, but you said it could have
a longer term negative effect and that is because the
commander, the person right up there in the chain of command,
in the civilian chain of command but nonetheless in the chain
of command, might be seen to be getting away with conduct and
not be held accountable for conduct that would be severely
punished in the military, is that true?
Mr. Edney. What you will see in my judgment, Congressman
Frank, is a tendency to see the rationale that is being put
forth here on the insignificance of lying and the
insignificance of adultery and these other issues as then being
used as a defense, and in that manner it will undercut the good
order and discipline.
Mr. Frank. We don't have to speculate, because in December
of 1992, George Bush, the outgoing President, pardoned Caspar
Weinberger, who had been Secretary of Defense for I think 6
years during the Reagan administration. While the Commander in
Chief is here, the Secretary of Defense is between you all and
the Commander in Chief, and he has a very direct relevance
here. So I guess I would ask you, my colleague from Florida
says he is confident that Caspar Weinberger didn't commit
perjury. I don't know whether Caspar Weinberger committed
perjury or not and will never know because George Bush pardoned
him. He was indicted on four counts, including obstruction of
Congress, false statements and two counts of perjury, and
George Bush pardoned him after the 1992 election. So the
Secretary of Defense, who is obviously very directly in the
chain of command of the Armed Services was indicted on two
counts of perjury and the President of the United States
pardoned him. Did that have the negative effect on the military
that you are afraid? If not, why not? Because isn't it very
similar? The Secretary of Defense certainly has a relevance to
the military. He is in the chain of command.
Mr. Edney. No, first of all, the Weinberger case was never
carried forth, so we do not know----
Mr. Frank. As a matter of fact, the President pardoned him.
But he was indicted. And the question about whether or not it
was carried forth begs the question because the question is
whether we should carry this forth. Caspar Weinberger was
indicted. I guess the question is, when George Bush pardoned
Caspar Weinberger was he saying to the military, ``Look, he's
not going to be held accountable,'' and did that not have a bad
effect to pardon someone before he was even tried but was
indicted?
Mr. Edney. There was no proof on whether or not Caspar
Weinberger committed----
Mr. Frank. Of course there was no proof because it didn't
go to trial. There couldn't be proof. George Bush made it
proof-proof. That is the problem. It would be similar here. So
if we don't move to impeach President Clinton there wouldn't be
any proof either. In both cases independent counsel have made
charges. In fact, in the Weinberger case, the independent
counsel went a step further. He brought indictments. In this
case he just came and told us. They are on the same footing. I
have to say if in fact this was the case, my guess is this
doesn't have a big effect on morale in either case.
I do want to say, I remember when George Bush pardoned
Caspar Weinberger, Les Aspin, the late Les Aspin who later
became the Secretary of Defense, he was chairman of the Armed
Services Committee, he praised, he said it was okay for George
Bush to do that. He wasn't terribly partisan. I don't criticize
George Bush for pardoning Caspar Weinberger, but I do think
what is sauce for the wild goose chase ought to be sauce for
the gander, to join our metaphors of the day.
Mr. Edney. Pardon my voice. One of the differences is the
Weinberger case involves the execution of foreign policy, which
is much more complex to understand than the issues involved,
whereas the issues involved here are a very common, frequent
occurrence in the military and they get----
Mr. Frank. I think, A, you are denigrating the military, at
least the top ranks. I would hope they would understand
national security policy that had to do with arms sales which I
think frankly many of you understand better than I, but also I
would say the charge was lying and not remembering. It wasn't
some complex question about name six Ayatollahs. It was not a
foreign policy test. It was, ``Do you remember?'' ``No, I don't
remember.'' It happened last week. Do you know of any such
things? They were on his desk. According to them he was denying
that he remembered things that were on the desk a little bit
away.
Bill Clinton is being accused by my friends on the other
side of perjury before the grand jury because he said in August
of 1998 that the activity began in February of 1996 and Monica
Lewinsky said November of 1995. That is one of the three counts
of grand jury perjury. A question of a couple of months
difference in remembering something over 2 years. Caspar
Weinberger was asked for a much shorter period of time.
So I disagree with you as to the complexity and I must say
I think that I, unfortunately, have to infer a lack of
objectivity in your approach to this.
Mr. Edney. I am not implying on either case, but I will say
that no matter who does it, whether it is a Republican or a
Democrat, if you are found to be guilty of lying under oath,
under the judicial system of this country, it is a serious
offense.
Mr. Frank. But neither one has been found because of the
pardon and----
Mr. Edney. Then there is no conclusion to your question. If
you haven't found guilt in Weinberger or the President, I'm not
making any conclusions.
Mr. Hyde. The gentleman's time has expired. The gentleman
from Pennsylvania, Mr. Gekas.
Mr. Gekas. I thank the Chair. Many of the Members who have
immediately rushed to the side of President Clinton, as they
did from the very first moment that this case began, have
already even from that very first moment pronounced that the
President is guilty of no offense, even though he lied under
oath or may have committed perjury or all these others, it is
not an impeachable offense. In my estimation, they have issued
individual pardons to the President as they sit here as Members
of Congress. They say he committed these acts, we don't think
that they should be impeachable.
Mr. Nadler. Will the gentleman yield?
Mr. Gekas. I will not yield.
I want to go to a little scene that was erected by Judge
Higginbotham and ask if I might use assuming arguendo back at
you for a moment.
Mr. Higginbotham. It would be a pleasure. I want you to
know that I once lived in your great Commonwealth.
Mr. Gekas. Very good. The scene that you constructed was of
the President admitting only to going 49 miles per hour while
everybody in the world knew that he was doing 55. Is that what
you said?
Mr. Higginbotham. No, I did not state it with that
precision. It is here, in my statement. I said the hypothetical
was the President factually was going 55 miles per hour in a 50
miles per hour zone. He is questioned before a grand jury as to
what was his speed, and he says 49, knowing that it was 55.
Mr. Gekas. Very good. Stop right there. Can you, assuming
arguendo, assume also that there is another person involved in
this case, a woman or a man or someone whose child was run over
by the defendant who insisted he did not go over 50 miles per
hour but everyone in the world knows that he violated the speed
limit at 50 and thus he could amount to be a destroyer of the
case of the plaintiff who insists that negligence, or speeding,
or going over the speed limit is the cause of the great damage
to one's family. Is that an assumption that is beyond scenario?
Mr. Higginbotham. I am perfectly willing to accept your
amendment of the scenario and I am willing to answer it if you
will allow.
Mr. Gekas. I will let you in a moment. What I am asking is,
isn't that tantamount to the Paula Jones case where Paula
Jones, whether you agree or not that she should have been
granted the right by the Supreme Court to sue the President of
the United States. By the way, I disagreed with that opinion of
the Supreme Court. I still rue the day that the Supreme Court
ruled that way in that particular case. But now that is
history. Paula Jones was entitled, then, under the ruling of
the Supreme Court, was she not, Judge Higginbotham, to the
pursuit of her rights to find damages against the defendant in
her case? Now, if indeed the President and Monica Lewinsky
testified falsely in those proceedings in order to destroy the
case of a fellow American citizen, to get away with not having
to pay damages, to avoid the possibility of being found liable
by a jury, to do all of those things, isn't that more serious
than just a case of a triviality like a traffic offense where
if it is limited to a traffic offense all of us would say you
are absolutely correct, but when it involves destroying a
negligence case or a reckless case of involuntary manslaughter,
doesn't it take on different connotations when rights are
destroyed by virtue of false statements under oath? That is a
very important question to me.
Mr. Higginbotham. No doubt about it. I tried personal
injury cases for 13 years as a Federal district court judge.
Not in your area, sir, but in Philadelphia. I must have had 200
right angle collisions tried before me where there was a
traffic light.
Mr. Gekas. That is why I didn't go to Philadelphia.
Mr. Higginbotham. In 200 cases, 199 of them had the green
light on each side. So that either Philadelphia has the worst
traffic light system in the world where all the lights are
green when people approach them or there is a diminution of
accuracy in such case.
Mr. Hyde. The gentleman's time has expired.
Mr. Gekas. I ask unanimous consent for 30 seconds more.
Mr. Hyde. Of course.
Mr. Gekas. I am simply drawing the parallel and you have
helped me to draw it, that the added element of the fact that
certain other American citizens' constitutional rights, to use
the words of Professor Dershowitz, the constitutional rights,
might be damaged by perjury where he thinks that should be
investigated further, these constitutional rights to sue for
damages might have been damaged by the testimony before a grand
jury.
I yield back the balance of my time.
Mr. Higginbotham. If you want me to answer, Mr. Chairman, I
am perfectly willing to, but I don't want to be disrespectful
of your ruling.
Mr. Hyde. You are being instructed that you should answer.
Mr. Higginbotham. All I was suggesting is you can't apply a
per se rule and you have to be factually specific.
Mr. Gekas. And you have helped me.
Mr. Higginbotham. Okay.
Mr. Hyde. I thank the gentleman. Mr. Boucher, the gentleman
from Virginia.
Mr. Boucher. Thank you very much, Mr. Chairman. I will
direct this question to Professor Rosen, Professor Saltzburg
and Professor Dershowitz, and following their answers if others
on the panel would also like to comment and if time permits, we
would be happy to hear from them as well.
Since the referral to this committee of September 9 by the
Office of Independent Counsel, a great deal has been said about
the supremacy of the rule of law and the principle of American
jurisprudence that no person, including the President of the
United States, should be above the law. We have heard
statements from witnesses today referring to those principles
and a number of Members of this panel have talked about those
very important principles in their questions. Some have
suggested that if one concludes that the President committed a
crime such as perjury, the only way to pay service to these
important principles is to impeach and remove the President
from office. But the constitutional history of the impeachment
power suggests that it was not designed as a punishment for
individual misconduct on the part of the President. Rather, it
was designed to protect the Nation from the conduct of a
President who through his actions has become a national threat.
Punishment of the individual for any crimes that the individual
may have committed while he holds the office of the presidency
is expressly provided for in Article I, Section 3 of the U.S.
Constitution.
In his testimony before this committee last week, the
independent counsel, Mr. Starr, stated that in his view the
President would be vulnerable to the criminal justice process
when he leaves the office of the presidency in January of the
year 2001. He stated that the President at that time could be
indicted, tried, convicted and given appropriate sentence for
any crimes, including perjury, that were committed by the
President during his tenure in the presidency. Mr. Starr also
confirmed that the statute of limitations for the offenses that
are described in his referral is 5 years and that there would
be time remaining within the statute of limitations to indict
and prosecute the President after he leaves office in the year
2001.
So given the fact that the President can be prosecuted for
any crimes that he may have committed while in office and given
the fact that the impeachment power was designed for the
protection of the Nation, not for the punishment of the
President individually, should the House of Representatives
decide that the President should not be impeached, would you
not agree that the rule of law and the principle that no person
is above the law, including the President of the United States,
is well served because the President is vulnerable to
prosecution, indictment and trial for any crimes that he
commits while he holds the office of President?
Mr. Dershowitz, let's begin with you.
Mr. Dershowitz. Theoretically the President could be
prosecuted after he leaves office. The President will not be
prosecuted after he leaves office, for several reasons. First,
this would be a selective prosecution. People who commit acts
like the President are never prosecuted for those acts. Second,
no prosecutor in his right mind would indict a President unless
he were confident he would get a conviction. There would be no
conviction in this case. The problem is that by Kenneth Starr
holding this threat of prosecution over the President and his
lawyers, they have made it impossible for the President to come
and apologize and do what many Members of this House would like
him to do, acknowledge more than he has already acknowledged.
As a practicing criminal lawyer, I can tell you no lawyer worth
his salt would ever recommend the President acknowledge
anything while there is a prosecution pending. So the answer is
very simple. Let Kenneth Starr announce now what he will
inevitably announce months from now, he will not prosecute the
President, and I have a relatively high level of assurance that
the President would respond by making statements unlike the
statements he has made up to now. But don't expect the
President to admit complicity while at the same time
encouraging the independent prosecutor to threaten him with
prosecution. It won't happen.
Mr. Boucher. Let me briefly ask the other two witnesses to
respond. And the question is this. Is not the rule of law well
served by the President being vulnerable to the criminal
justice process just as any other American is for crimes that
he commits while he holds the office of the presidency?
Professor Saltzburg.
Mr. Saltzburg. I want to begin my answer by just saying to
the chair that a couple of us have to leave at 5 and I know
that by yielding, if there are questions Members want to ask,
we would like to be able to answer them and I want to answer
this one. I think that it is very clear to me that there is now
a threat of criminal prosecution against the President. I am
very serious when I suggest to you that but for this
committee's going forward, I believe there is every reason to
think that Judge Wright would do what judges ought to do, which
is at the first hint, not just of perjury but that the court
has been deceived, it ought to take action. If you wanted to
really send a message to the American people that everybody is
equal under the law and you really cared about honesty and
integrity in the court system, what you would do is you would
put it in the hands of the court, where it can't be now because
the court out of respect for a co-equal branch of government
would just leave it with this committee. There is a solution
that would guarantee that the President would be no better off
and no worse off but for timing.
Mr. Boucher. Professor Rosen.
Mr. Rosen. I agree with Professor Saltzburg that Kenneth
Starr may indeed bring a criminal prosecution. But I'm
interested in the light that your question casts on the
decision that your colleagues on the other side face--those who
believe that the perjuries in question are impeachable
offenses. What light does the unlikelihood that a jury would
convict cast on the question of prosecutorial discretion? The
lying cases suggest that even overzealous prosecutors who bring
lying prosecutions rarely succeed.
Oliver North, for example, was prosecuted for lying to you,
for lying to Congress, and a Washington, DC, jury acquitted.
There are many other cases of juries who are far more indulgent
of lies because they have common sense intuitions about what
lies should be punished and therefore they ultimately acquit.
It seems that if you conclude that your jury, your trier of
fact, the Senate, is unlikely to convict, that might indeed be
a factor in your decision as the grand inquest of the Nation
whether or not to bring an impeachment article in the first
place.
Mr. Hyde. The gentleman's time has expired. Mr. Coble.
Mr. Coble. Thank you, Mr. Chairman. Thank you all for being
with us, gentleman. Judge Tjoflat, is perjury a less offensive
transgression in a civil case rather than a criminal one?
Mr. Tjoflat. No, the perjury is the same regardless of the
circumstances. I think that that is well-settled.
Mr. Coble. Thank you, sir. That was my thought as well.
Admiral or General, I am familiar with the military
imposition of sanctions for fraternization. I have always felt
that they should probably be imposed more flexibly. As an
enlisted member I have gone ashore with officers. As an officer
I have gone ashore with enlisted members and never had any
fraternization problems. So that is why I am thinking the way
that I do.
But let me put this to you, Admiral. In the unlikely event,
probably unlikely event that an admiral would have a sexual
affair with a seaman or a third class petty officer and it was
ultimately revealed, what would be the consequences?
Mr. Edney. The consequences would be immediate removal from
the position they held and a required resignation and potential
loss of salary. But certainly the first two, removal from
office and a required resignation. And then it would be up to
the Congress what the salary of my retirement would be.
Mr. Coble. General, I am sure you concur with that
probably?
Mr. Carney. It depends on the nature of the discredit to
the service. If this had become rather public within the
command, it was viewed to be detrimental to the good order and
discipline.
Mr. Coble. And I will talk with you all later on ashore one
night about the flexibility of sanctions. We will do that
another day. Professor Saltzburg, Professor Dershowitz says
that he believes that history will not smile favorably upon
this committee nor upon this Congress. How do you think history
will smile upon this committee, this Congress and President
Clinton?
Mr. Saltzburg. Let me say that I think anyone who predicts
history is wrong. Having said that, I will answer your
question. I don't think that--as for this committee, I think
Professor Dershowitz is premature. You haven't reached a
judgment yet. I know some of the press say you have. But if I
thought you had, I wouldn't have come today. You are struggling
with important issues. If you do your job well and, in my
judgment, if you decide that there is a better way to handle
this than impeachment, that there is a better way, then history
will say that you took a difficult task and you did it well.
I think as for the Congress, it depends also on what this
committee does. It is hard to know how the Congress will be
judged because it will depend upon what you do first. And as
for the President, I think tragically, for any President, I
don't just say this about this President, I think that
throughout history, every time the name Bill Clinton is
mentioned, the name Monica Lewinsky will be mentioned also, and
that for any President has to be the ultimate tragedy.
Mr. Coble. Of the professorial staff you were sitting in
between the two learned men, so I went in the middle. Let me
put a question to the appellate judges. Gentlemen, have you all
ever upheld a perjury case that was sent to you by a district
court?
Mr. Tjoflat. Yes, I think many times.
Mr. Coble. Judge Wiggins.
Mr. Wiggins. Yes.
Mr. Coble. And Judge Higginbotham.
Mr. Higginbotham. Yes, I cite some cases which I wrote in
footnote 13, sir.
Mr. Coble. I see my time is about to expire. I want the
chairman to recognize that I beat the red clock again, Mr.
Chairman. Good to have you with us, gentlemen.
Mr. Hyde. Thank you, Mr. Coble.
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I have a
question for the three professors at the end, Professors
Dershowitz, Saltzburg and Rosen.
We have talked a lot today about equality before the law.
The President is neither--should not be above the law,
presumably shouldn't be beneath the law either but he shouldn't
be above the law any more than any other person. I would like
to ask the three of you two separate questions on this. In
terms of the fairness of the procedure, I alluded earlier today
to the fact that we are considering impeachment, we are going
to be voting on articles of impeachment next week, and so far
what has happened is that an independent counsel gave us a
report in which he characterized testimony that he received or
his people received, he reached conclusions from it,
conclusions of fact and conclusions of law, the President did
this, the President did that, we know that from so and so's
testimony, and these deeds amount to impeachable offenses. He
reached those conclusions, he gave those conclusions to us. The
only witness we have had as to that so far has been the
prosecutor, who in effect said I was right in the report, these
witnesses said these things, we conclude, or I conclude that he
committed impeachable offenses and they are impeachable
offenses.
Now we are told that we don't need, the prosecution in
effect doesn't have to call any witnesses before the committee
because after all they testified under oath at the grand jury.
We don't need to hear them. We are also told--and they are
believable because they testified under oath. We are also told
that by the defense in effect, the Democrats here, not calling
any witnesses, we are pleading nolo contendere, we are
essentially admitting the facts. Some of us think the facts
haven't been put before the committee because there is no
evidence before the committee since the prosecutor's opinions
and conclusions are not evidence.
My first question is how would you judge all of that? Have
we followed any kind of procedure that comports with due
process or is this upside down?
My second question is a more simple question. The analogy
has been made to the grand jury, we don't have to call their
witnesses here, we are more like the grand jury, we just have
to find probable cause and pass it on to the Senate. Given the
precedents, do we need probable cause, do we need clear and
convincing evidence, what is our role?
Mr. Dershowitz. I think the two questions really are rolled
up into one. If in fact Congress is like the grand jury and if
impeachment is exactly like indictment, then what they are
doing is flawless. But obviously the analogy is completely
flawed. Indictment is the second most serious act that can be
taken in a constitutional government, second only--I am sorry,
impeachment, second only to removal. When you impeach a
President, you have gone down historically and made a very
significant decision. Andrew Johnson was impeached. That will
live with him for the rest of his life. It doesn't get undone,
in the rest of our lives, in the rest of the lives of our
country. It doesn't get undone simply by the fact that he was
not removed by one vote. And so for impeachment to occur, you
need to do what the committee did last time around with
President Nixon. You need to hear evidence. You need to make
credibility determinations. You need to ask yourselves the
question, is the evidence, has it reached a level of clear and
compelling evidence so that you are prepared to go down on
record historically as saying, I am prepared to impeach a
President of the United States, to start the process of undoing
an election, to in effect implement a legislative coup d'etat,
the most dramatic act of check and balance. To think that it is
like an indictment which could be handled on the basis of
hearsay testimony, having a prosecutor come in and say I have
interviewed six witnesses and this is what they say because the
courts say you can indict on the basis of hearsay, is to
misunderstand the difference between a criminal case and a
great constitutional crisis.
Mr. Nadler. Professor Saltzburg.
Mr. Saltzburg. Congressman, I don't know that you are going
to like my answer, but it is going to be shorter and
straightforward. As one who has watched this committee struggle
a little bit with accusations flying back and forth, let me
answer you this way. There was no independent counsel in 1974.
There was no one who did that kind of investigation, and it
makes all the difference in how you view due process in my
judgment. I think that the independent counsel's report is a
fair starting point. I think that it is wrong to suggest that
you ignore it and proceed as though it didn't exist, and that
it is perfectly fair for the majority to say point to the
things that we ought to take evidence on. I don't see how--
having said that, however, I don't see how, to answer your
first question, certain judgments could be made without certain
witnesses. I don't see how you could make an obstruction of
justice conclusion regarding gifts without hearing from the
participants because as I read the information that you have,
the testimony is absolutely confusing as to the gifts. You have
to hear that. That is one, while others, it seems to me, you
wouldn't have to hear witnesses. You know what the President
said. You heard his explanation. It is enough to make a
judgment about whether you think this is impeachable.
As for the standard, you know, there isn't a one of the
three of us who can give you much help on this because you know
more about it than we do. We didn't run for office. We didn't
go out to the voters and get elected. We aren't the ones who
held ourselves out there to be criticized, to fight those
battles. You know much better than anybody what this is about.
What it is about is a simple question. If you decide to impeach
the President, you are saying that it is important enough to
paralyze this country for some period of time because that is
what it will be. You have got to decide that it is that
important. And if it is, if you reach that conclusion, you will
do it. All I can tell you is, I have a judgment about that but
it is no better than yours and I don't think I can help you. It
is not just indictment. We can indict any individual anywhere
anytime without paralyzing the country. So the question you ask
yourself, is the quality of the evidence and the nature of the
charges enough to warrant putting the country, not just the
President but the country, through that kind of proceeding?
Mr. Hyde. Go ahead, Professor.
Mr. Rosen. I'm not sure that was shorter than Professor
Dershowitz's
Mr. Saltzburg. You don't have tenure. You should be
careful.
Mr. Rosen. The one salutary effect of this particular
hearing is to convince people on both sides of the political
spectrum of the deep constitutional problems with the
independent counsel statute, and I think this goes to the core
of the question. Section 595(c), which requires the independent
counsel to advise the House of Representatives of substantial
and credible evidence, arguably requires him to turn over raw
information. It is arguably a derogation of your sole
constitutional authority, under Article I, Section 2, to
exercise the sole power of impeachment if you allow the
independent counsel or anyone else to do the narrative project
of forming legal conclusions and judging the credibility of
witnesses. Clearly you do have an obligation to engage in
independent fact finding about whether or not the alleged
statements in question rise to the technical level of perjury.
As to the second question, regarding the Johnson Congress,
its name was taken in vain earlier today and I would like to
say a word on its behalf. The Johnson Congress acted with such
constitutional scrupulousness. The Senate carefully separated
the lower level charges of public disorderliness and general
partisanship from the abuse of power charge, violating the
tenure of office act. On that count--and this is an important
precedent, I think--it was established beyond clear and
convincing evidence. President Johnson didn't dispute that he
had, indeed fired Stanton, or that he was indeed guilty of the
charge in question. Therefore, the relevant precedent sets the
bar quite high. This is not probable cause. This is a question
about which the entire Congress, Members from both parties,
converged and agreed.
Mr. Hyde. The gentleman's time has expired. The Chair will
yield himself 5 minutes. I missed part of Professor
Dershowitz's statement and I regret that. I had to attend to
some other business. But I take it there was some concern about
this committee being the only engine in the country that is
moving in the direction we are moving in. By way of defense for
this committee, I am proud of this committee, both sides of
this committee. We are fighting really for a principle that is
submerged in all of the personality that overwhelms this
discussion and in the Dow Jones average.
We are fighting for the rule of law really. What does it
mean? What does an oath mean? It isn't that you tell a
falsehood about 55 miles an hour. It is that you have sworn to
almighty God to tell the truth, the whole truth, and nothing
but the truth in a formalized procedure and that you are the
one man in the country who has a constitutional obligation to
take care that the laws are faithfully executed. You are the
chief law enforcement officer in the country, and you have
taken that oath and you have cheapened it. You have disparaged
it. And is that not worth our time and discussion? Because the
rule of law--if you look at Auschwitz--do you see what happens
when the rule of law doesn't prevail?
Now, I do not leap from the Oval Office on a Saturday
afternoon to Auschwitz, but there are similarities when the
rule of law does not obtain, or where you have one law for the
powerful and one for the nonaristocratic. That is what we are
discussing, the significance of the oath, the significance of
truth, the breach of promise when someone lies to you having
raised their hand and sworn to tell the whole truth. I wonder
why they don't just say tell the truth. Why do they say the
whole truth and nothing but the truth? Evasions. Evasions.
There are all kinds of lies. There are fibs, little white lies,
there is hyperbole, exaggeration, mental reservations,
evasions. But then there is swearing to God to tell the truth,
the whole truth, and nothing but the truth and then
deliberately deceiving and lying. I think that is worth our
time to thrash this thing out. I don't know where it is going
to come out. I think if many of you--if Mr. Wiggins, who
surprised me today, has his way--we will pass a resolution of
impeachment out of here and it will fail on the floor and that
will end it. And what becomes of the rule of law? What has
happened to the oath? Has it been cheapened? And what does that
mean for the rule of law? These are important questions. And
what about that taking care that the laws be faithfully
executed? Have we diminished that?
Mr. Dershowitz. May I respond?
Mr. Hyde. Yes. If I am running out of ideas, you may
respond.
Mr. Dershowitz. I think you have made an excellent point
and I think it is crucially important for this committee to be
concerned with the rule of law and the importance of the oath.
I think this committee is doing a terrible, terrible disservice
to the rule of law and to the sanctity of the oath by
trivializing the differences, as Judge Tjoflat said in one of
the most unbelievably wrongheaded statements I have ever heard
from a judge, that there is no difference between types of
perjury. I challenge anybody to respond and say that there is
no difference between a police officer who deliberately frames
an innocent man or woman who he knows is guilty and subjects
that person to false imprisonment or the electric chair and
someone who lies to cover up a private embarrassing sex act.
What this committee is doing is trivializing the oath. What
this committee is doing is trivializing the rule of law. By
only focusing on perjury because they want to get a President
of the opposite party, they are telling the American public
they don't care about perjury, they don't care about the real
perjury that exists and is pervasive in this country in
courthouses and in courtrooms and police stations. All they
care about is Democratic perjury, not Republican perjury by
Caspar Weinberger, which doesn't exist because you have read
that record and you don't believe it is perjury, not perjury by
police officers, not perjury that affect the lives of Americans
on a daily basis but only perjury committed by one Democratic
President. Nothing can trivialize the rule of law more than to
selectively isolate this case and act as if it is the only case
of perjury that is worth--that is important.
Mr. Chairman, you contributed to that in the beginning when
you said that this was going to be a broad hearing about the
pervasive influence of perjury on the American system. That is
Hamlet without the prince. To talk about the pervasive
influence of perjury on the American legal system and ignore
100 years of police perjury and documented reports about police
perjury and pretend and close your eyes and make believe that
the only perjury worth considering is perjury about a sex lie
committed by a President of the opposite party trivializes the
rule of law and trivializes the oath of office.
Mr. Hyde. I thank you, Professor Dershowitz. I don't thank
you for criticizing the motives, saying that we are out to get
the President. You haven't the slightest idea of the agony that
many of us go through over this question. Many of us are
sensitive to those concerns, all of us I daresay. I think you
have disparaged us by leaping to conclusions without any basis.
I will tell you something. These two women who came here
today are suffering permanent damage because they lied under
oath about matters that are relatively trivial, relatively
trivial, and we are concerned about the double standard. That
may mean nothing to you.
Mr. Dershowitz. It means a great deal to me.
Mr. Hyde. But it means something to us.
Mr. Dershowitz. It means a great deal to me. You selected
these two women. When is the last time this committee has
expressed concern about the rights of criminal defendants?
Separate criminal defendants can show that the President is
being selectively prosecuted.
Mr. Conyers. Mr. Chairman.
Mr. Hyde. Yes, Mr. Conyers.
Mr. Conyers. And I thank you for this interchange, but it
is not unknown to ourselves and to anyone that has been
watching our proceedings in the Judiciary Committee that we are
split totally down the middle in the most partisan fashion that
has ever happened. Never, Judge Wiggins, in our '74 proceedings
were we split this far apart. The result is fairly obvious of
what is going to happen to anybody with the least understanding
of this matter. So for you to be offended by the Dershowitz
evaluation strikes me as a little disingenuous. You know what
we are going to do here, because it has been said repeatedly by
every Republican Member of the committee. So let's not get
offended by the truth at this point in our proceedings.
Mr. Hyde. You know a lot more than I know about how the
Republicans, every Member, is going to vote, because I don't
know.
Mr. Conyers. Well, I have heard them tell me what they were
going to do. They tell me what is impeachable. I have heard it,
sir. And I thank you for the intervention.
Mr. Hyde. You bet. The gentleman from Texas.
Mr. Smith. Mr. Chairman, I am going to yield part of my
time to my colleague from California, Mr. Gallegly.
Mr. Gallegly. Thank you very much for yielding, my good
friend from Texas, Mr. Smith. Mr. Chairman, thank you for your
comments. You echoed, I am sure, the sentiments of many Members
on this committee, and we share that frustration. I want to
thank this witness panel for coming here today. I know the hour
is getting late. I understand we have a couple of individuals
that have to leave here shortly. We still have 20 Members of
our committee that have not had an opportunity to ask a
question. So for the sake of brevity and respect for the
gentleman that yielded to me, I would just like to ask Judge
Tjoflat one question.
Judge, if you would be kind enough to explain to us your
opinion of what the consequences would be to our system of
justice if perjury becomes commonplace in our courts? What
would happen if lying on the witness stand is winked at because
the person on the witness stand for whatever reason feels it is
inconvenient, embarrassing or maybe even politically harmful if
he or she told the truth under oath?
Mr. Tjoflat. As I said in my opening remarks, the system of
justice functions because of three things: First an impartial
judge, second lawyers who obey the cannons of ethics and
thirdly witnesses who take the oath sincerely. And it is a
three-legged stool. If any one of those legs collapses, then
the system is unable to render justice, as I see it. And of
course if it happens repeatedly, then the people lose respect
for the law, they lose confidence in the system of justice and
they resort to other means to resolve their disputes.
Mr. Gallegly. Thank you very much, Judge Tjoflat. I want to
thank Mr. Smith for yielding to me and would yield back to him.
Mr. Smith. Mr. Chairman, I am going to reclaim my time and
address my first question to Judge Wiggins. Judge Wiggins, in
your prepared testimony, you made this assertion: ``The answer
to the question of whether perjury or obstruction of justice is
a high crime or misdemeanor is a relatively simple one. Of
course it is.'' It is not that clear to everybody here today
and perhaps to some of your panelists, though it is clear to a
large number of other people. Why is it that you feel that
perjury is an impeachable offense?
Mr. Wiggins. Why do I feel that way?
Mr. Smith. Yes.
Mr. Wiggins. I think the phrase treason, bribery and other
high crimes and misdemeanors is a deliberately vague phrase and
does not have a fixed meaning, except perhaps for treason and
bribery. But the others, offenses, are vague. And I don't think
that you must impeach for every finding of perjury and every
finding of obstruction of justice. But there are some findings
of perjury and obstruction of justice that are so clearly
important to arouse public attention to the gravity of the
offense and misconduct of the offender and you must react. Now
I think that if you say that is the crime of perjury, for
example, an impeachable offense, of course it is. It is a
crime. It is a felony. Thousands of people are in jail or have
been in jail for violating that crime. If the President commits
perjury, he is vulnerable for impeachment. But--and that is the
issue before this committee. But once it passes from this
committee----
Mr. Smith. I understand.
Mr. Wiggins. It is for the House of Representatives and
that is where I may draw a different conclusion.
Mr. Smith. The point that I was hoping to make, which you
did make, was that perjury, in your judgment at least, is
clearly and can be an impeachable crime. Is that right?
Mr. Tjoflat. Of course it can be.
Mr. Smith. Thank you.
Thank you, Mr. Chairman.
Mr. Hyde. Thank you.
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, I want to submit for the record with
unanimous consent a copy of Rule 6(c) of the Rules of Criminal
Procedure that state that the court shall appoint one or more
jurors to be the foreperson and another to be deputy
foreperson. The foreperson shall have the power to administer
oath and affirmations and shall sign all indictments.
It is my understanding that the President was sworn in by
one of the prosecutors at the grand jury testimony. I also have
a copy of a memo from Bob Weinberg that outlines the basis for
raising questions about the oath and two cases that are
relevant to this issue, and I would like these introduced into
the record.
Mr. Hyde. Without objection, so ordered.
[The information follows:]
Rules of Criminal Procedure for the U.S. District Courts
iii. indictment and information
Rule 6. The Grand Jury
* * * * * * *
(c) Foreperson and deputy foreperson.The court shall appoint one of
the jurors to be foreperson and another to be deputy foreperson. The
foreperson shall have power to administer oaths and affirmations and
shall sign all indictments. The foreperson or another juror designated
by the foreperson shall keep a record of the number of jurors
concurring in the finding of every indictment and shall file the record
with the clerk of the court, but the record shall not be made public
except on order of the court. During the absence of the foreperson, the
deputy foreperson shall act as foreperson.
______
The Fatal Flaw in Starr's Case for Grand Jury Perjury: An Essential
Element is Missing
(By Robert L. Weinberg \1\)
---------------------------------------------------------------------------
\1\ Robert L. Weinberg has been a Visiting Lecturer in Criminal
Procedure at the University of Virginia School of Law for the past 33
years, and was the court-appointed counsel for the appellant in the
District of Columbia Circuit case ofGaither v. United States (cited
above). He is a former president of the District of Columbia Bar.
---------------------------------------------------------------------------
Introduction
Now that the post-election proceedings of the House Judiciary
Committee are focusing on whether any of the Independent counsel's
charges rise to the level of an impeachable offense, the alleged grand
jury perjury of the President is the charge that impeachment proponents
most strongly argue constitutes a ``high Crime or Misdemeanor.'' For
example, at the November 9 Judiciary Subcommittee Hearing seeking to
define impeachable offenses, South Carolina Rep. Lindsey Graham opined
that Clinton should not be impeached for his allegedly perjurious
deposition in the Paula Jones case but that the President's alleged
perjury before the grand jury would be ``a good candidate for an
article of impeachment.'' (The Washington Post, Nov. 10, 1998, p. A4.
The President has of course vigorously denied the factual basis of
Starr's charge of grand jury perjury, which rests upon certain
contradictions between the grand jury testimony of Lewinsky and
Clinton. But close scrutiny of the record of Clinton's grand jury
appearance may render it unnecessary for the House and Senate to
adjudicate this underlying factual controversy, because it will show
that the charge of grand jury perjury lacks an essential legal element.
this missing element would require dismissal of an indictment against
the President for the ordinary crime of perjury. it should likewise
defeat a charge by the House that he is guilty of the ``high crime'' of
grand jury perjury.
The Oath
The transcript of President Clinton's grand jury testimony,
submitted to Congress by the Office of Independent Counsel (OIC) in
support of its perjury allegation, recited that Clinton was ``duly
sworn.'' \2\
---------------------------------------------------------------------------
\2\ House Doc. 105-311, p. 454.
---------------------------------------------------------------------------
But was he? Or is this transcript misleading?
By omitting a verbatim transcription of the administration of the
oath to the President, the OIC transcript glosses over the circumstance
that the grand jury oath was given to the President by the wrong
person. The Clinton grand jury transcript contrasts with the
transcripts of grand jury testimony by Monica Lewinsky and other
witnesses, which recite that the witness was ``duly sworn by the
Foreperson of the Grand Jury.'' \3\ The difference is critical, because
the Federal Rules of Criminal Procedure authorize only the grand jury
foreperson (or in her absence, the deputy foreperson) to swear the
witness.
---------------------------------------------------------------------------
\3\ House Doc. 105-311, pp. 723, 964; House Doc. 105-316, pp. 14,
124, 173.
---------------------------------------------------------------------------
A different version of the transcript, attributed to the Federal
Document Clearing House, was printed in The Washington Post the day
after the videotaped version was publicly released by the House.\4\ The
Post version does include the verbatim transcription of the
administration of the oath to President Clinton, recording that the
oath was given by a Mr. Bernard J. Apperson. But Mr. Apperson is not
the grand jury foreperson; she was sitting a mile away from the
President with the other grand jurors, listening to the oath in the
Court House on a video feed. The oath-giving Mr. Apperson was
identified in the Post transcript as an associate counsel of OIC, a
member of Kenneth Starr's prosecution staff.
---------------------------------------------------------------------------
\4\ The President's Grand Jury Testimony,'' The Washington Post,
Sep. 22, 1998. p. A31.
---------------------------------------------------------------------------
Legal Argument
Under the federal perjury statute, 18 U.S.C. Sec. 1621, the
prosecution must establish, as the first essential element of the
offense of perjury, that the defendant took ``an oath authorized by a
law of the United States.'' \5\ This requirement, that the oath be
authorized by a federal statute, rule or regulation, has been
recognized in numerous cases, including the U.S. Supreme Court's
decisions in U.S. v. Hvass, 355 U.S. 570, 574 (1958), and U.S. v.
Debrow, 346 U.S. 374, 376 (1953). ``the oath administered must be
authorized by a law of the United States.'' Debrow at 377.\6\ It
necessarily follows that: ``An oath taken before an officer who has no
authority to administer it cannot serve as the basis for an indictment
for perjury.'' U.S. v. Doshen, 133 F.2d 757, 758 (3rd Cir. 1953).\7\
---------------------------------------------------------------------------
\5\ The quoted language appears in U.S. v. Hvass, 355 U.S. at 574
(1958), which in turn quotes it from U.S. v. Debrow, 346 U.S. at 376
(1953).
\6\ In Hvass, the Court held, 8 to 1, that an oath required by a
duly promulgated Rule of a Federal District Court was an oath
authorized by ``a law of the United States'' within the meaning of
Section 1621.
\7\ In Doshen the conviction on a perjury count was reversed by the
Third Circuit because the immigration officer who administered the oath
was not authorized to swear a witness in the particular type of
immigration proceeding that was involved. In Smith v. United States,
363 F.2d 143, 144-45 (5th Cir. 1966), the Fifth Circuit reversed a
perjury conviction because the prosecution failed to offer the evidence
needed to prove ``an essential element of the crime of perjury,''
``Proof of the charge requires that sufficient evidence be adduced
before the jury upon which it can be found beyond a reasonable doubt
that an oath was administered to the defendant by some officer
authorized to do so.''
---------------------------------------------------------------------------
This requirement is no recent innovation. It has been an essential
element of perjury ever since the federal perjury statute was adopted,
in 1790. In an 1882 Supreme Court case reviewing an indictment brought
under the federal perjury statute, the perjury counts were invalidated
because the oath had been taken before a notary public who was not
authorized by the laws of the United States to administer the oaths in
question (oaths which were required for certain reports to the
Comptroller of the Currency). The Supreme Court held:
``It is fundamental in the law of criminal procedure that an
oath before one who, although authorized to administer some
kind of oaths, but not the one which is brought in question,
cannot amount to perjury at common law, or subject the party
taking it to a prosecution for the statutory offense of
wilfully false swearing.'' United States v. Curtis, 107 U.S.
671, 672-73 (1882). (Emphasis supplied.)
Thus President Clinton cannot be charged or convicted ``for the
statutory offense of wilfully false swearing'' before the grand jury,
if Mr. Apperson, who administered the oath, lacked legal authority to
do so. Indeed, Mr. Starr's own legal memorandum, transmitted to
Congress in support of his Referral, recognizes this principle in its
analysis of the elements of the federal perjury statute, 18 U.S.C.
1621; but it does not even consider whether the Independent Counsel
might have failed to comply with the statutory requirement. See Legal
Reference by OIC, House Doc. 105-311, pp. 268-69.\8\
---------------------------------------------------------------------------
\8\ Starr's discussion is directed specifically to 18 U.S.C.
Sec. 1621. The Memorandum also discusses a slightly different perjury
statute, 18U.S.C. Sec. 1623, listing the five minor respects in which
Sec. 1623 differs from Sec. 1621; but the oath requirement is not one
of these differences. See Legal Reference, House Doc. 105-311, at pp.
269-70, n.6.
---------------------------------------------------------------------------
Prior to the adoption of the Federal Rules of Criminal Procedure,
which became effective in 1946, the federal perjury statute had
included an express requirement that an indictment for perjury aver the
name of the person who administered the oath and his authority to do
so. (R.S. Sec. 5396; former 18 U.S.C. Sec. 558.) Although this formal
pleading requirement was replaced by the more liberal pleading
provisions of the Federal Rules of Criminal Procedure, Rule 7(c)--under
which it was sufficient for perjury indictments to allege that the oath
was ``duly authorized''--proof of this essential element of due
authorization still required proof at trial that the oath which had
been administered to the defendant was one authorized by law. This is
shown by the Supreme Court's decision, upholding the validity of a
perjury indictment and conviction, in U.S. v. Debrow, 346 U.S. 374
(1953).
The only authorization in federal law for administering an oath to
a grand jury witness is found in Rule 6(c) of the Federal Rules of
Criminal Procedure. That Rule provides that the Court shall appoint the
foreperson and deputy foreperson of each federal grand jury, and that:
``The foreperson shall have power to administer oaths and affirmations
. . . . During the absence of the foreperson, the deputy foreperson
shall act as foreperson.'' The U.S. Supreme Court, in describing the
duties of the grand jury foreperson,\9\ lists ``administering oaths''
as one of the foreperson's three responsibilities. Hobby v. U.S., 468
U.S. 339, 344-45 (1984). Similarly, a Justice Department Manual
provides that ``the witness is sworn by the grand jury foreman'' and
that `` one of the foreman's most important functions is the
administration of the oath to witnesses.'' U.S. Department of Justice
Antitrust Division, Grand Jury Manual (1976) at p. 149 and p. 25.
---------------------------------------------------------------------------
\9\ The opinion uses the term ``foreman.'' Subsequently, Rule 6(c)
was amended to use the gender neural term ``foreperson.''
---------------------------------------------------------------------------
Nowhere in the Federal Rules of Criminal Procedure, or any statute
governing grand jury proceedings, is a prosecutor authorized to
administer the oath to grand jury witnesses. Only the grand jury
foreperson, or deputy foreperson, is authorized to swear the witnesses.
The lack of such authority for prosecutors is not an oversight, or a
technicality; it is inherent in the constitutional role of the grand
jury. The framers of the Bill of Rights included in the Fifth Amendment
a guarantee of grand juries for the federal courts, in order to protect
the ordinary citizen against the power of the federal prosecuting
authorities. Just as grand juries in the thirteen colonies had served
to protect colonists from oppressive prosecutions by the Crown, the
Fifth Amendment's grand jury clause was intended to protect Americans
from unwarranted prosecutions by the new federal government. Opinions
of the U.S. Supreme Court have often noted the constitutional
obligation of the federal grand jury to stand as an independent body
between the prosecuting attorney and the accused; e.g.
Stirone v. United States, 361 U.S. 213, 218 (1960); Russell v.
United States, 369 U.S. 749, 770-71 (1962); Ex parte Bain, 121 U.S. 1,
11 (1887). The U.S. Court of Appeals for the District of Columbia--the
jurisdiction where the Starr grand jury sits--has followed the teaching
of these cases in Gaither v. United States, 413 F.3d 1061 (D.C. Cir.
1969), where the court invalidated longstanding practices of
prosecutorial infringement on the independence of all D.C. grand
juries. As stated by the D.C. Circuit in Gaither:``The grand jury is
interposed `to afford a safeguard against oppressive actions of the
prosecutor or the Court.' '' \10\
---------------------------------------------------------------------------
\10\ The D.C. Circuit's quotation was from the Fifth Circuit's
decision in the famous case of U.S. v. Cox, 342 F.2d 167, 170 (5th
Cir.), cert denied sub nom Cox v. Hauberg, 381 U.S. 935 (1965). ``The
constitutional provision is, as has been said, for the benefit of the
accused.'' Ibid.
---------------------------------------------------------------------------
In its most recent analysis of the grand jury's constitutional
role, the Supreme Court noted: ``the grand jury is mentioned in the
Bill of Rights, but not in the Constitution . . . . In fact the whole
theory of its function is that it belongs to no branch of the
institutional Government, serving as a kind of buffer or referee
between the Government and the people.'' As one manifestation of this
independence, ``It swears in its own witnesses.'' United States v.
Williams, 504 U.S. 36, 47, 48 (1992).
It is thus hardly surprising that only the neutral foreperson, and
not the partisan prosecutor, was entrusted with the authority to
administer oaths to witnesses when the Supreme Court promulgated, and
the Congress approved, Rule 6(c) of the Federal Rules of Criminal
Procedure. Independent Counsel Starr and his staff simply failed to
follow the prescribed procedure for predicating a perjury charge on a
duly authorized grand jury oath.
A possible reason for OIC taking this risky course is suggested by
an intriguing colloquy between the President and a Deputy Independent
Counsel, recorded near the end of the Clinton transcript. The President
notes that he had invited all the grand jurors to come to the White
House to participate in the proceeding. (If they had come, then the
grand jury foreperson would presumably have been there to administer
the oath.) But the Deputy Independent Counsel responds that the
President's invitation was rejected because, if the grand jurors
attended at the White House, then videotaping of the session would have
been precluded. (House Doc. 105-311, pp. 627-28.) Thus OIC's tactic for
obtaining a videotape which it presumably comtemplated releasing to
Congress, undercut OIC's strategy of ensnaring the President in a
perjury net before the grand jury.
The invalidity of the OIC-administered oath did not, however,
deprive the President's questioning of its value for the grand jurors.
They were provided the opportunity to hear and evaluate the information
provided by the President under 4 hours of interrogation by the OIC
staff, and to consider that information in their subsequent
deliberations. The situation is similar to a grand jury receiving and
considering a report, transcript or videotape of a police or FBI
interview in deciding whether or not to charge the interviewee, or
anyone else, with a substantive crime. But since the interviewed
witness was not sworn, he obviously could not be charged with perjury,
even if the grand jury disbelieved his answers to the police. In the
absence of an oath validly administered to President Clinton, there
likewise is no predicate for charging him with perjury before the grand
jury, as a ground for impeachment or in a criminal indictment.
While a majority of the Judiciary Committee, or of the House, might
seek to argue that a false but non-perjurious statement to grand jurors
could still be considered an impeachable offense, it is much harder to
make the case that a non-perjurious denial of details of private sexual
conduct amounts to a ``high Crime or Misdemeanor.'' Among all the
grounds of impeachment urged in the Starr report, the ringing charge of
``perjury'' before the grand jury has presented the strongest case for
OIC and its Congressional supporters to argue that a ``high Crime or
Misdemeanor'' is properly alleged for a potential impeachment trial
before the Senate. But if the ``perjury'' charge must be dismissed
because an essential element of the ``high crime'' is lacking, then
there is no occasion for the Senate to try, or the House to resolve,
the underlying substantive issue: whether President Clinton or Monica
Lewinsky was untruthful in their conflicting grand jury testimony as to
who touched whom, where and when. The Senate can be spared an unseemly
trial, and the House a fatally flawed charge.
______
UNITED STATES v. HVASS
No. 92
SUPREME COURT OF THE UNITED STATES
january 27, 1958, argued
march 3, 1958, decided
Prior history
Appeal From the U.S. District Court for the Northern District of
Iowa.
Disposition
147 F.Supp. 594, reversed and remanded.
Core terms
Perjury, oath, indictment, regulation, administered, clear
legislative, prescribe, authorizes, contest, lawfully, founded,
competent tribunal, satisfactory, resident, Criminal Appeals Act,
fitness to practice, rules of practice, willfully false, homestead
entry, decisional law, material fact, time to time, local land, local
rule, prescribed, supplied, residing, wilfully
Summary
An indictment charging an attorney with violating the federal
perjury statute (18 U.S.C. 1621) by making a wilfully false statement
of a material fact in a hearing under oath, held pursuant to a local
rule of a Federal District Court in which it was sought to determine
the attorney's fitness to practice before the court, was dismissed by
the U.S. District Court for the Northern District of Iowa, Central
Division. The dismissal was based upon the District Court's holding
that the local rule under which the attorney took his oath was not a
law of the United States for purposes of the perjury statute's
provision that perjury is committed by one who, having taken an oath
before a competent tribunal, officer, or person, in any case in which a
law of the United States authorizes an oath to be administered, that he
will testify truly, wilfully and contrary to such oath states any
material matter which he does not believe to be true.
On appeal, the U.S. Supreme Court reversed the judgment below.
Eight members of the Court, in an opinion by Whittaker, J., after
ruling that the Supreme Court had jurisdiction of the appeal under the
statute dealing with direct appeals by the government in criminal cases
since the District Court's dismissal of the indictment was based upon
its construction of the perjury statute, stated that, because federal
statutes as well as the Federal Rules of Civil Procedure authorize
federal courts to establish rules for the conduct of their business,
the hearing at which the attorney testified under oath was a ``case in
which a law of the United States authorizes an oath to be
administered,'' within the meaning of that clause as used in the
perjury statute.
Douglas, J., agreed that the Court had jurisdiction of the appeal,
but dissented on the merits, taking the view that a judge-made rule is
not ``a law of the United States'' within the meaning of the perjury
statute.
When a Federal District Court holds that an indictment, not merely
because of some deficiency in pleading but with respect to the
substance of the charge, does not allege a violation of the statute
upon which the indictment is founded, there necessarily occurs a
construction of that statute, within the meaning of the federal law (18
U.S.C. 3731) permitting direct appeal by the government to the Supreme
Court from a District Court's decision or judgment dismissing any
indictment where such decision or judgment is based upon the
construction of the statute upon which the indictment is founded.
Under the federal statute (18 U.S.C. 3731) providing that an appeal
may be taken by the United States direct to the Supreme Court of the
United States from a District Court decision or judgment dismissing an
indictment where such decision or judgment is based upon the invalidity
or construction of the statute upon which the indictment is founded,
the U.S. Supreme Court has jurisdiction, on appeal by the government,
to review a District Court's dismissal of an indictment charging that
wilfully false statements of material facts were made by an attorney in
proceedings, conducted under a local rule of a Federal District Court,
to determine his fitness to practice before it, where the ground for
the dismissal was that the local rule was not a law of the United
States within the meaning of the federal statute specifying that
whoever, having taken an oath before a competent tribunal, officer, or
person, in any case in which a law of the United States authorizes an
oath to be administered, that he will testify truly, wilfully and
contrary to such oath states any material matter which he does not
believe to be true, is guilty of perjury.
On an appeal by the government from a District Court's dismissal of
an indictment in a criminal case, under the statute (18 U.S.C. 3731)
permitting such appeals where the District Court's dismissal is
grounded upon the construction of the statute underlying the
indictment, the U.S. Supreme Court is not at liberty to go beyond the
question of the correctness of that construction and consider other
objections to the indictment; the government's appeal does not open the
whole case.
The essential elements of the crime of perjury, as defined in 18
U.S.C. 1621, are: (1) an oath authorized by the law of the United
States, (2) taken before a competent tribunal, officer, or person, and
(3) a false statement wilfully made as to facts material to the
hearing.
The phrase ``a law of the United States,'' as used in the federal
perjury statute's (18 U.S.C. 1621) provision respecting cases ``in
which a law of the United States authorizes an oath to be
administered,'' is not limited to statutes but includes as well Rules
and Regulations which have been lawfully authorized and have a clear
legislative base.
Under the statutes (28 U.S.C. 2071, 1654, respectively) authorizing
the federal courts to prescribe rules for the conduct of their
business, and authorizing parties to plead and conduct their own cases
personally or by counsel as, by the rules of such courts, are permitted
to manage and conduct causes therein, and under Rule 83 of the Federal
Rules of Civil Procedure which provides that each District Court may
from time to time make and amend rules governing its practice, a
District Court is lawfully authorized to prescribe its local rules, and
such rules have a clear legislative base.
The federal perjury statute (18 U.S.C. 1621) covers ex parte
proceedings or investigations as well as ordinary adversary suits and
proceedings.
A hearing under oath, held pursuant to a local rule of a Federal
District Court, in which it is sought to determine an attorney's
fitness to practice before that court, is a ``case in which a law of
the United States authorizes an oath to be administered,'' within the
meaning of that clause as used in the federal statute (18 U.S.C. 1621)
providing that whoever, having taken an oath before a competent
tribunal, officer, or person, ``in any case in which a law of the
United States authorizes an oath to be administered,'' that he will
testify truly, wilfully and contrary to such oath states any material
matter which he does not believe to be true, is guilty of perjury.
Syllabus
1. When a Federal District Court dismisses an indictment on the
ground that it does not allege a violation of the statute upon which it
was founded, not merely because of some deficiency in pleading but with
respect to the substance of the charge, that is necessarily a
construction of the statute, and a direct appeal to this Court lies
under 18 U.S.C. Sec. 3731. Pp. 573-574.
2. A willfully false statement of a material fact, made by an
attorney under oath during a Federal District Court's examination into
his fitness to practice before it constitutes perjury within the
meaning of 18 U.S.C. Sec. 1621, when the examination was made under a
local rule of the District Court specifically authorizing such
examination under oath; since such an examination is a ``case in which
a law of the United States authorizes an oath to be administered,''
within the meaning of the statute. Pp. 574-577.
(a) The phrase ``a law of the United States,'' as used in the
perjury statute, is not limited to statutes, but includes as well rules
and regulations which have been lawfully authorized and have a clear
legislative base, and also decisional law. P. 575.
(b) There can be no doubt that the District Court was lawfully
authorized to prescribe its local rules and that they have a clear
legislative base. Pp. 575-577.
Counsel
Ralph S. Spritzer argued the cause for the United States. On the
brief were Solicitor General Rankin, Warren Olney, III, then Assistant
Attorney General, and Beatrice Rosenberg.
Warren B. King argued the cause for appellee. With him on the brief
was Charles Alan Wright.
Judges
Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan,
Brennan, Whittaker
Opinion
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
The question for decision is whether a willfully false statement of
a material fact, made by an attorney under oath during the District
Court's examination, under its local rule, into his fitness to practice
before it. constitutes perjury within the meaning of 18 U.S.C.
Sec. 1621.\1\
---------------------------------------------------------------------------
\1\ That section, in pertinent part, provides: ``Whoever, having
taken an oath before a competent tribunal, officer, or person, in any
case in which a law of the United States authorizes an oath to be
administered, that he will testify, declare, depose, or certify truly,
. . . willfully and contrary to such oath states . . . any material
matter which he does not believe to be true, is guilty of perjury. . .
.''
---------------------------------------------------------------------------
Acting under 28 U.S.C. Sec. Sec. 1654, 2071, and Rule 83 of Federal
Rules of Civil Procedure, authorizing federal courts to prescribe rules
for the conduct of their business, the District Courts for the Northern
and Southern Districts of Iowa promulgated local rules governing
practice in those courts. Their Rule 3, in pertinent part, provides:
``All attorneys residing outside of the State of Iowa and
having civil matters in the court shall associate with them a
resident attorney on whom notice may be served and who shall
have the authority to act for and on behalf of the client in
all matters . . . . Non-resident attorneys who have so
associated with them a resident attorney shall be permitted to
participate in a particular case upon satisfactory showing of
good moral character.
``Provided further that where the action is one to recover
damages for personal injuries sustained in Iowa by one who at
the time was a resident of Iowa . . ., the Court may on its own
motion, or on motion of a member of the bar of either District,
before permitting a nonresident attorney to participate in the
case, require a satisfactory showing that the connection of the
said attorney [with the case] was not occasioned or brought
about in violation of the standards of conduct specified in
Rule 8 hereof.\2\ The Court as a part of said showing may
require the plaintiff and the said attorney to appear and be
examined under oath.''
---------------------------------------------------------------------------
\2\ Rule 8 is a substantial adoption of the Canons of Professional
Ethics of the American Bar Association.
Appellee, an attorney residing and maintaining his office in
Minneapolis, Minnesota, had instituted two actions in the District
Court for the Northern District of Iowa, as counsel for citizens of
Iowa, seeking damages for bodily injuries which they had sustained in
that State. On October 3, 1955, the court, acting under its Rule 3,
entered an order scheduling a hearing to be held by the court on
October 12, 1955, for the purpose of affording an opportunity to
appellee to show that his connection with the two damage suits was not
brought about in violation of the standards of conduct specified in its
Rule 8, and directing appellee to appear at that time and to submit to
an examination under oath, if he wished further to participate as
counsel in those actions. Appellee appeared at the hearing and, after
being sworn by the Clerk, was examined by the District Attorney on
matters deemed relevant to the hearing. On November 1, 1955, the court
entered an order finding that ``the applicant [had] not made
satisfactory showing of the matters which must be satisfactorily shown
under said Local Rule 3,'' and it struck his appearance as counsel in
the two damage actions from the record.
On March 20, 1956, a four-count indictment was returned against
appellee in the same District Court. Each count charged that appellee,
while under oath as a witness at the hearing of October 12, 1955,
``unlawfully, wilfully, and knowingly, and contrary to [his] oath,
[stated] material matters which he did not believe to be true'' (in
particulars set forth in each count), ``in violation of Section 1621,
Title 18, United States Code.'' Appellee moved to dismiss the
indictment for failure of any of the counts to state an offense against
the United States. The court,\3\ after full hearing upon the motion,
concluded ``that Rule 3, under which the defendant took his oath, is
not such a law of the United States as was intended by Congress to
support an indictment for perjury,'' and, on that ground, dismissed the
indictment. 147 F.Supp. 594. The Government brought the case here by
direct appeal under the Criminal Appeals Act, 18 U.S.C. Sec. 3731. We
postponed further consideration of the question of jurisdiction to the
hearing on the merits, 353 U.S. 980.
---------------------------------------------------------------------------
\3\ The court was then being presided over by a district judge from
another district, sitting by designation.
---------------------------------------------------------------------------
At the threshold we are met with appellee's contention that we do
not have jurisdiction of this appeal. We think the contention is
unsound. 18 U.S.C. Sec. 3731, in pertinent part, provides that: ``An
appeal may be taken by and on behalf of the United States from the
district courts direct to the Supreme Court of the United States . . .
from a decision or judgment . . . dismissing any indictment . . . where
such decision or judgment is based upon the invalidity or construction
of the statute upon which the indictment . . . is founded.'' This
indictment was founded on the federal perjury statute, 18 U.S.C.
Sec. 1621. The District Court dismissed the indictment not because of
any deficiency in pleading or procedure but solely because it held that
Rule 3 ``is not such a law of the United States as was intended by
Congress to support an indictment for perjury.'' It thus dismissed the
indictment upon its construction of the federal perjury statute. In
these circumstances, the question of our jurisdiction is settled by
United States v. Borden Co., 308 U.S. 188, 193:
``When the District Court holds that the indictment, not
merely because of some deficiency in pleading but with respect
to the substance of the charge, does not allege a violation of
the statute upon which the indictment is founded, that is
necessarily a construction of that statute.''
Such is the case here, and the result is that we have jurisdiction of
this appeal.
This brings us to the merits. The scope of this appeal is very
limited. No question concerning the validity of the District Court's
Rule 3 is properly before us. Nor are we at liberty to consider any
question other than the single one decided by the District Court, for
when, as here, ``the District Court has rested its decision upon the
construction of the underlying statute this Court is not at liberty to
go beyond the question of the correctness of that construction and
consider other objections to the indictment. The Government's appeal
does not open the whole case.'' United States v. Borden Co., supra, at
193.
``The essential elements of the crime of perjury as defined in 18
U.S.C. Sec. 1621 are (1) an oath authorized by a law of the United
States, (2) taken before a competent tribunal, officer or person, and
(3) a false statement wilfully made as to facts material to the
hearing.'' United States v. Debrow, 346 U.S. 374, 376. Only the first
element of perjury is involved here because the District Court's
dismissal of the indictment was upon the sole ground that ``Rule 3 . .
. is not such a law of the United States as was intended by Congress to
support an indictment for perjury.'' Therefore, the only question open
here is whether the admission hearing, held under the District Court's
Rule 3, and at which appellee testified under oath, was a ``case in
which a law of the United States authorizes an oath to be
administered,'' within the meaning of that clause as used in the
perjury statute. We think it was. The phrase ``a law of the United
States,'' as used in the perjury statute, is not limited to statutes,
but includes as well Rules and Regulations which have been lawfully
authorized and have a clear legislative base (United States v. Smull,
236 U.S. 405; Caha v. United States, 152 U.S. 211; Viereck v. United
States, 318 U.S. 236; Lilly v. Grand Trunk R. Co., 317 U.S. 481), and
also decisional law. Glickstein v. United States, 222 U.S. 139. And see
Wigmore, Evidence (3d ed.), Sec. Sec. 1815, 1816, 1824.\4\
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\4\ The author there shows that the requirement that a witness must
take an oath before giving testimony goes back to early civilizations
and has a long history at common law (Sec. 1815), and that for
centuries Anglo-American law has remained faithful to the precept that
``for all testimonial statements made in court the oath is a
requisite.'' Sec. 1824.
---------------------------------------------------------------------------
28 U.S.C. Sec. 2071 provides: ``The Supreme Court and all courts
established by Act of Congress may from time to time prescribe rules
for the conduct of their business. Such rules shall be consistent with
Acts of Congress and rules of practice and procedure prescribed by the
Supreme Court.'' And 28 U.S.C.A. Sec. 1654 provides: ``In all courts of
the United States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such courts, respectively,
are permitted to manage and conduct causes therein.'' (Emphasis
supplied.) Consistently, Rule 83 of Federal Rules of Civil Procedure,
in pertinent part, provides: ``Each district court by action of a
majority of the judges thereof may from time to time make and amend
rules governing its practice not inconsistent with these rules. . . .''
These statutes and Rule 83 leave no room to doubt that the District
Court was lawfully authorized to prescribe its local rules and that
they have a clear legislative base. Whether or not its Rule 3 is
invalid for any reason--which, as stated, is a question not before us--
it was prescribed pursuant to statutory authority, and expressly
provides that, under the conditions specified, the court may require
the ``attorney to appear and be examined under oath.''
Rule 3 had at least as clear a legislative base as did the
Regulations involved in Caha v. United States, supra, and United States
v. Smull, supra. In the Caha case defendant was indicted under the
federal perjury statute--then in precisely the same terms as it is
now--and charged with perjury through the making of a false affidavit
to officials of the Land Office of the Department of the Interior in
respect of a contest, then pending in the Land Office, over the
validity of a homestead entry. The defendant was convicted and on
appeal contended that no statute authorized such a contest and that
therefore it could not ``be said that the oath was taken in a `case in
which a law of the United States authorizes an oath to be
administered.' '' By statute Congress had authorized the Commissioner
of the General Land Office, under the direction of the Secretary of the
Interior, ``to enforce and carry into execution, by appropriate
regulations, every part of the [laws relating to public lands].''
Pursuant to that authority the Commissioner adopted rules of practice
including an express provision ``for a contest before the local land
officers in respect to homestead as well as preemption entries, and for
the taking of testimony before such officers . . . .'' This Court, in
denying defendant's contention and in sustaining the conviction, said:
``We have, therefore, a general grant of authority to the
Land Department to prescribe appropriate regulations for the
disposition of the public land. . . . Clearly then . . . the
local land officers in hearing and deciding upon a contest with
respect to a homestead entry constituted a competent tribunal,
and the contest so pending before them was a case in which the
laws of the United States authorized an oath to be
administered.''
Id., at 218. (Emphasis supplied.)
The Smull case involved very similar facts. The District Court
sustained a demurrer to the indictment, ``ruling that the affidavit was
not within the statute defining perjury.'' The Government brought the
case here under the Criminal Appeals Act. This Court reversed, saying:
``The charge of crime must have clear legislative basis. . .
. This statute [the perjury statute, in precisely the same
terms as the present one] takes the place of the similar
provision of Sec. 5392 of the Revised Statutes, which in turn
was a substitute for a number of statutes in regard to perjury
and was phrased so as to embrace all cases of false swearing
whether in a court of justice or before administrative officers
acting within their powers. . . . It cannot be doubted that a
charge of perjury may be based upon [the perjury statute] where
the affidavit is required either expressly by an act of
Congress or by an authorized regulation of the General Land
Office, and is known by the affiant to be false in a material
statement. . . . When by a valid regulation the Department
requires that an affidavit shall be made before an officer
otherwise competent, that officer is authorized to administer
the oath within the meaning of [the perjury statute]. The false
swearing is made a crime, not by the Department, but by
Congress; the statute, not the Department, fixes the penalty.''
\5\
---------------------------------------------------------------------------
\5\ These cases, as well as United States v. Morehead, 243 U.S.
607, show that the perjury statute covers ex parte proceedings or
investigations as well as ordinary adversary suits and proceedings.
Id., at 408-409.
It follows that the admission hearing, held under the District
Court's Rule 3, and at which appellee testified under oath, was a
``case in which a law of the United States authorizes an oath to be
administered,'' within the meaning of that clause as used in the
perjury statute.
The judgment of the District Court is reversed and the case is
remanded to that court for further proceedings not inconsistent with
this opinion.
Reversed.
MR. JUSTICE DOUGLAS agrees that the Court has jurisdiction of the
appeal; but he dissents on the merits. In his view this judge-made rule
is not ``a law of the United States'' within the meaning of the perjury
statute, 18 U.S.C. Sec. 1621.
______
UNITED STATES v. DEBROW
No. 51
SUPREME COURT OF THE UNITED STATES
october 20, 1953, argued
november 16, 1953, decided
Prior history
Certiorari to the U.S. Court of Appeals for the Fifth Circuit.\1\
---------------------------------------------------------------------------
\1\ Together with No. 52, United States v. Wilkinson; No. 53,
United States v. Brashier; No. 54, United States v. Rogers; and No. 55,
United States v. Jackson, all on certiorari to the same court.
---------------------------------------------------------------------------
The District Court dismissed indictments of the respondents for
perjury. The Court of Appeals affirmed. 203 F.2d 699. This Court
granted certiorari. 345 U.S. 991. Reversed, p. 378.
Disposition
203 F.2d 699, reversed.
Core terms
Oath, indictment, administered, perjury, subcommittee, competent
tribunal, repealed, revision, definite, authorizes, wilfully,
administer oaths, plead, material matter, willfully
Summary
An indictment charging perjury committed before a subcommittee of
the Senate alleged that the subcommittee was a competent tribunal,
pursuing matters properly before it, that in such proceeding it was
authorized by a law of the United States to administer oaths, and that
each defendant had ``duly taken an oath.'' The defendants filed motions
to dismiss, which were sustained below on the ground that the
indictments did not allege the name of the person who administered the
oath nor his authority to do so.
In an opinion by Minton, J., the Supreme Court unanimously
reversed, holding that the indictment sufficiently set forth the
elements of the offense sought to be charged. In particular, the
requirement in the perjury statute that the oath administered must be
authorized by law was held met by allegations in the indictments that
the defendants had ``duly taken'' an oath.
Reed, J., did not participate.
An indictment is required to set forth the elements of the offense
sought to be charged.
The true test of the sufficiency of an indictment is not whether it
could have been made more definite and certain, but whether it contains
the elements of the offense intended to be charged, and sufficiently
apprises the defendant of what he must be prepared to meet, and, in
case any other proceedings are taken against him for a similar offense,
whether the record shows with accuracy to what extent he may plead a
former acquittal or conviction.
The Federal Rules of Criminal Procedure are designed to eliminate
technicalities in criminal pleading and are to be construed to secure
simplicity in procedure.
The essential elements of the crime of perjury, as defined in 18
U.S.C. 1621, are (1) an oath authorized by the law of the United
States, (2) taken before a competent tribunal, officer, or person, and
(3) a false statement wilfully made as to facts material to the
hearing.
The requirement that an indictment for perjury, as defined in 18
U.S.C. 1621, allege that the oath administered must be authorized by a
law of the United States is met by allegations in the indictment that
the defendant had ``duly taken an oath.''
An oath ``duly taken'' means an oath taken according to a law which
authorizes such oath.
The name of the person who administers the oath is not an essential
element of the crime of perjury. The identity of such person goes only
to the proof of whether the defendants were duly sworn.
An indictment for perjury, as defined in 18 U.S.C. 1621, clearly
informs the defendant of that with which he is accused, so as to enable
him to prepare his defense and to plead the judgment in bar of any
further prosecution for the same offense, when it alleges that a
subcommittee of the Senate was a competent tribunal, pursuing matters
properly before it, that in such proceeding it was authorized by a law
of the United States to administer oaths, and that each defendant duly
took an oath before such competent tribunal and wilfully testified
falsely as to material facts.
The sufficiency of an indictment is not a question of whether it
could have been more definite and certain in describing the offense. If
a defendant wants more definite information as necessary, he may obtain
it by requesting a bill of particulars under Rule 7 (f) of the Federal
Rules of Criminal Procedure.
Syllabus
The indictments of respondents under 18 U.S.C. Sec. 1621 for
perjury in wilfully testifying falsely to material facts, after each
had ``duly taken an oath,'' before a Senatorial subcommittee duly
created and duly authorized to administer oaths, complied with Rule 7
(c) of the Federal Rules of Criminal Procedure; and they should not
have been dismissed for failure to allege the name of the person who
administered the oaths or his authority to do so. Pp. 375-378.
(a) The name of the person who administered the oath is not an
essential element of the crime of perjury. Pp. 376-377.
(b) R.S. Sec. 5396, which required that an indictment for perjury
aver the name and authority of the person who administered the oath,
was repealed by the Act of June 25, 1948, 62 Stat. 862, revising the
Criminal Code. P. 377.
Counsel
John F. Davis argued the cause for the United States. With him on
the brief were Acting Solicitor General Stern, Assistant Attorney
General Olney, Beatrice Rosenberg and Felicia H. Dubrovsky.
Ben F. Cameron argued the cause for respondents. With him on the
brief were W.S. Henley, R.W. Thompson, Jr., Albert Sidney Johnston,
Jr., W.W. Dent and T.J. Wills.
Judges
Vinson, Warren, Black, Frankfurter, Douglas, Jackson, Burton,
Clark, Minton; Mr. Justice Reed took no part in the decision of this
case.
The District Court dismissed indictments of the respondents for
perjury. The Court of Appeals affirmed. 203 F. 2d 699. This Court
granted certiorari. 345 U.S. 991. Reversed, p. 378.
Opinion
MR. JUSTICE MINTON delivered the opinion of the Court.
The respondents here, defendants below, were charged by separate
indictments with the crime of perjury, as defined in 18 U.S.C.
Sec. 1621.\2\ Each indictment read in material part as follows:
---------------------------------------------------------------------------
\2\ ``Perjury generally.
``Whoever, having taken an oath before a competent tribunal,
officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony, declaration,
deposition, or certificate by him subscribed, is true, willfully and
contrary to such oath states or subscribes any material matter which he
does not believe to be true, is guilty of perjury, and shall, except as
otherwise expressly provided by law, be fined not more than $2,000 or
imprisoned not more than five years, or both.''
``The defendant herein, having duly taken an oath before a
competent tribunal, to wit: a subcommittee of the Senate
Committee on Expenditures in the Executive Departments known as
the Subcommittee on Investigations, a duly created and
authorized subcommittee of the U.S. Senate conducting official
hearings in the Southern District of Mississippi, and inquiring
in a matter then and there pending before the said subcommittee
in which a law of the United States authorizes that an oath be
administered, that he would testify truly, did unlawfully,
knowingly and wilfully, and contrary to said oath, state a
---------------------------------------------------------------------------
material matter which he did not believe to be true. . . .''
The defendants filed motions to dismiss, which were sustained on
the ground that the indictments did not allege the name of the person
who administered the oath nor his authority to do so.\3\ The Court of
Appeals affirmed, one judge dissenting, 203 F.2d 699, and we granted
certiorari, 345 U.S. 991, because of the importance of the question in
the administration of federal criminal law.
---------------------------------------------------------------------------
\3\ United States v. Debrow et al., U.S.D.C.S.D. Miss., Feb. 11,
1952 (unreported).
---------------------------------------------------------------------------
An indictment is required to set forth the elements of the offense
sought to be charged.
``The true test of the sufficiency of an indictment is not
whether it could have been made more definite and certain, but
whether it contains the elements of the offense intended to be
charged, `and sufficiently apprises the defendant of what he
must be prepared to meet, and, in case any other proceedings
are taken against him for a similar offence, whether the record
shows with accuracy to what extent he may plead a former
acquittal or conviction.' Cochran and Sayre v. United States,
157 U.S. 286, 290; Rosen v. United States, 161 U.S. 29, 34.''
Hagner v. United States, 285 U.S. 427, 431.
The Federal Rules of Criminal Procedure were designed to eliminate
technicalities in criminal pleading and are to be construed to secure
simplicity in procedure. Rule 2, F. R. Crim. Proc. Rule 7 (c) provides
in pertinent part as follows:
``The indictment . . . shall be a plain, concise and definite
written statement of the essential facts constituting the
offense charged. . . . It need not contain . . . any other
matter not necessary to such statement. . . .''
The essential elements of the crime of perjury as defined in 18 U.S.C.
Sec. 1621 are (1) an oath authorized by a law of the United States, (2)
taken before a competent tribunal, officer or person, and (3) a false
statement willfully made as to facts material to the hearing. The
indictments allege that the subcommittee of the Senate was a competent
tribunal, pursuing matters properly before it, that in such proceeding
it was authorized by a law of the United States to administer oaths,
and that each defendant duly took an oath before such competent
tribunal and wilfully testified falsely as to material facts. The oath
administered must be authorized by a law of the United States. This
requirement is met by the allegations in the indictments that the
defendants had ``duly taken an oath.'' ``Duly taken'' means an oath
taken according to a law which authorizes such oath. See Robertson v.
Perkins, 129 U.S. 233, 236. The name of the person who administered the
oath is not an essential element of the crime of perjury; the identity
of such person goes only to the proof of whether the defendants were
duly sworn. Therefore, all the essential elements of the offense of
perjury were alleged.
The source of the requirement that an indictment for perjury must
aver the name and authority of the person who administered the oath is
to be found in R.S. Sec. 5396, 18 U.S.C. (1940 ed.) Sec. 558. It may be
worthy of note that this provision was expressly repealed by Congress
in 1948, 62 Stat. 862, in the revision and recodification of Title 18.
The House Committee on Revision of the Laws had the assistance of two
special consultants who were members of the Advisory Committee on the
Federal Rules of Criminal Procedure and who ``rendered invaluable
service in the technical task of singling out for repeal or revision
the statutory provisions made obsolete by the new Federal Rules of
Criminal Procedure.'' H.R. Rep. No. 304, 80th Cong., 1st Sess., p. 4.
In the tabulation of laws omitted and repealed by the revision, it is
stated that R.S. Sec. 5396 was repealed because ``Covered by rule 7 of
the Federal Rules of Criminal Procedure.'' Id., at A214. The charges of
the indictments followed substantially the wording of the statute,
which embodies all the elements of the crime, and such charges clearly
informed the defendants of that with which they were accused, so as to
enable them to prepare their defense and to plead the judgment in bar
of any further prosecutions for the same offense. It is inconceivable
to us how the defendants could possibly be misled as to the offense
with which they stood charged. The sufficiency of the indictment is not
a question of whether it could have been more definite and certain. If
the defendants wanted more definite information as to the name of the
person who administered the oath to them, they could have obtained it
by requesting a bill of particulars. Rule 7 (f), F. R. Crim. Proc.
The indictments were sufficient, and the dismissal thereof was
error. The judgments are
Reversed.
MR. JUSTICE REED took no part in the consideration or decision of
these cases.
Mr. Scott. I have asked Judge--excuse me--Mr. Starr to
comment on this, and I am awaiting his response.
[See the December 11, 1998 letter from Judge Starr to the
Committee reprinted in the Appendix, page 176, responding to
Mr. Scott's argument.]
Mr. Chairman, I have raised questions of fairness and the
need for the first order of business to be designating what the
charges are that we are actually pursuing.
I was interested to see earlier today that, when challenged
by the gentleman from Massachusetts as to one of three of the
perjury charges, maybe I misunderstood you, but I thought I
understood you to say that one was not particularly serious,
which would mean that we wouldn't have to respond to that one.
We have also today expanded the focus of the inquiry. So
without a designation of what charges we are actually
investigating, it seems absurd to me to ask anyone to respond
to the charges before they know what the charges are.
Another point I want to make, Mr. Chairman, is that we keep
hearing that if we don't impeach the President, we condone his
actions. As my colleague from Virginia, Mr. Boucher, has
mentioned, we are limited in our constitutional ability to do
anything unless the allegation is treason, bribery or other
high crimes or misdemeanors.
We heard at our constitutional hearing that the term
treason, bribery and other high crimes or misdemeanors does not
cover all felonies. And, therefore, it is conceivable that the
President could commit a felony and we would have no legal
authority under the rule of law to do anything about it. My
colleague from Virginia noted, however, that the President
would be subject to indictment, prosecution and punishment for
violation--for commission of a felony, but that would obviously
wait until after he is out of office.
Judge Wiggins, you mentioned perjury as, of course, an
impeachable offense. Could you cite any person impeached in
United States history or English history, for that matter,
going back to 1300, where the underlying behavior was personal
in nature and not an abuse of power?
Mr. Wiggins. I am unable to cite specific instances with
it, but I will be pleased to respond to your question in
writing.
Mr. Scott. If you find one, you will be the only person to
have provided a positive answer to that question.
Mr. Wiggins. Well, I believe I already found one.
Mr. Scott. The Congressional Research Service has looked
back to 1300 and has not found one.
Mr. Wiggins. You are advising me that the Congressional
Research Service has determined that no public official subject
to impeachment has been impeached for perjury; is that right?
Mr. Scott. No, for perjury involving personal behavior, not
an abuse of power.
Mr. Wiggins. Well, what is that?
Mr. Scott. What Richard Nixon did.
Mr. Wiggins. I am not sure. Say again? I am eager to
respond to some of these outrageous comments about Richard
Nixon, but I have held my breath, but I will be pleased to do
so.
Mr. Scott. Let me try to get in one question to Judge
Higginbotham.
We have heard that all perjury is the same. In your
comments, you indicated that the sentencing guidelines
differentiate different kinds of perjury and punishments,
depending on what kind of perjury it was. Could you comment on
all perjuries being the same?
Mr. Higginbotham. Well, it is clear that all perjury is not
the same, just like all people are not the same size. You are
much brighter than I am, but I am taller than you.
On page 5, I spend a considerable amount of time going over
the U.S. Sentencing Guidelines, and I spell out a whole series
of those sections where there are significantly varying
penalties. And as you, of course, know, that when the Founding
Fathers created the Constitution, they didn't put the word
``perjury'' in, they put the word ``treason.'' So you have
necessarily an ambiguity. And if they felt that all perjury
should be included, they would have at least put perjury.
So I am persuaded by the historians who have studied this,
from my having read Farrand, from my having read Elliot, that
certain types of perjury clearly involving a private activity
would not reach the impeachment criteria.
Mr. Scott. Mr. Chairman, the----
Mr. Hyde. The gentleman's--yes.
Mr. Scott. I would like to, first of all, apologize to
Judge Wiggins. I didn't mean to be abrupt. The point I was
making was that the Congressional Research Service has not
found a person's personal behavior as the subject of
impeachment. I apologize for the reference to President Nixon.
I didn't mean to be abrupt, but I was trying to get in one last
question, so I want to apologize for being short with him.
Mr. Wiggins. You need not apologize for comments about
Richard Nixon. I lived with Richard Nixon literally all of my
life because people are making adverse comments about him, but
I don't understand where they get their facts. They probably
read them in the newspaper. And I sat up here next to your
Ranking Minority Member, Mr. Conyers, and heard evidence; and I
didn't come away with that conclusion.
You know, that was a massive investigation of the Nixon
administration, and the press convinced the American people
that the Nixon administration had to be replaced. But the Nixon
administration wasn't subject to impeachment. It was one
individual, and Richard Nixon was the target. And if he didn't
participate and had no knowledge or didn't conspire with others
to violate the law, he is being unjustly accused. But he did
conspire briefly with others to violate the law back in 1972,
and he was punished for that. But it was a very brief period of
time.
Mr. Scott. Mr. Chairman, I am glad I gave him an
opportunity to respond. Thank you.
Mr. Hyde. The gentleman's time has expired.
The gentleman from Tennessee seeks recognition to go out of
order.
Mr. Bryant. Mr. Chairman, I do ask unanimous consent. I
need to catch a very important plane, and I would like the
opportunity to examine the two professors who have to leave.
Mr. Hyde. Very well.
Mr. Bryant. Thank you, Mr. Chairman.
I thank the distinguished panel for your testimony. I think
about four of you showed up about a week late, I think. You
missed the panel where we had the law professors and historians
testifying, but I still appreciate your opinions, and I take
them just as they are, opinions. I certainly think in some
instances the slips were showing in terms of partisanship, but
we will overlook some of that because we are used to having
that said about us, too.
Let me ask the two professors on the end who have to leave,
Professor Saltzburg and Professor Rosen, a question that has
come up. I am one of those people who believes that, because of
the separation of powers, we have to be very careful that the
fence among the three branches is very tall, and we have to be
very careful when we talk about such things as censure and
reprimand. I oppose that. I feel strongly that our obligation
is to pursue the articles of impeachment if the proof leads us
that way.
But since I do have your availability and the expertise
that you bring to this table, and because it seems to be
floating around in the newspapers and on all the talk shows, I
wanted to ask you, Mr. Richardson, our very distinguished
former Attorney General, made the comment about being limited
to, if we impeach, if we send it to the Senate, they would be
limited to simply removing the President from office and/or
limiting his ability to serve for other Federal office, to hold
office.
As I read that part of the Constitution, and I want to get
the exact language, because I think this is important, under
section 7 of that, it says, ``Judgment in cases of impeachment
shall not extend further than to removal of office'' and so
forth, which seems to me to set a maximum, a ceiling, if you
will, which if one wanted to argue that censure or reprimand
was appropriate, you could say, well, that's the ceiling, and
you could do less than that if you wanted to.
And that is a position I am coming around to, but I feel
very strongly, and I want to get your opinion on this, that--
and the position I am coming around to, if there is censure or
reprimand available, it is through the Senate only and that is
their decision.
I would say that we as a House have only the constitutional
requirement to charge, to impeach, if you will, not to punish.
And to get to the point where the Senate could consider some
type of punishment, they first have to have these articles of
impeachment. We have to vote these out in order to get a
censure, in effect, a reprimand, opportunity.
I would like to have your comments from you two.
Mr. Rosen. I very much respect the seriousness with which
you are struggling with this important constitutional issue,
and it is a delicate and hard one.
Let's think of a range of options that you have available
to you. I think no scholar would say that if you were to pass
concurrent resolutions in the House and the Senate expressing
your deep condemnation of the President's behavior that that
would raise any constitutional difficulty at all. It wouldn't
be part of the impeachment process and, therefore, it wouldn't
derogate from it nor would it have the force of law that would
be presented to the President for his signature and therefore
couldn't be considered a bill of attainder.
Mr. Bryant. Let me ask you this. Wouldn't that--in the
interest of trying to invent something here, wouldn't that, and
in the interest of expediency, wouldn't that be a terrible,
terrible precedent? I mean, I know folks like me that get very
upset with a President who maybe vetoes a bill that I feel we
need, and wouldn't I now have that possibility if we do it here
that I could say, well, let's start a move to reprimand the
President over this?
I think what we have to have is a two-step process, if you
are going to get to that point. The first is the indictment, so
to speak, by the House; and then it goes to the Senate to let
them consider it. But I don't think either House ought to be
able to independently pass a resolution to reprimand the
President.
Mr. Rosen. But then that would exacerbate the very
constitutional problem you are worried about.
If the censure were part of the impeachment process, then
it would derogate from the process set out in the Constitution.
By contrast, a concurrent resolution wouldn't be a troubling
process, because it would have no more weight than a citizen
saying that the President is a bad person. Surely you have the
same right to express your opinion of the President in any form
you please.
You may want to go further and pass a bill presented to the
President for his signature, and in that case I think you have
to be very careful to make sure that it is not presented as a
threat. It is not a lesser punishment, as you put it, but
instead is a conditional amnesty. In other words, Mr.
President, if you do X, Y and Z, then you will be censured and
granted immunity. But that requires you to give him some
benefit in return, and this you may not be willing to do.
Mr. Hyde. The gentleman's time has expired.
The gentleman----
Mr. Conyers. Mr. Chairman, Professor Saltzburg had a very
brief comment.
Mr. Saltzburg. I thought that question was also directed to
me, Mr. Chairman.
I disagree with my colleague in part. I agree in part.
Congressman Bryant, let me see if I can explain this to you.
First, the language that you read that the punishment shall
not exceed removal from office, the history of that, I am sure
you heard on November 9th, was, in England, it was common when
they had impeachments to prescribe punishment that included
death, and the framers wanted to make sure what the limits of
punishment were.
If you decide to vote articles of impeachment and they pass
the House and if the Senate convicts, I believe the
Constitution requires removal as a minimum. The Senate wouldn't
have to convict. The Senate could acquit, and then they could
propose a resolution of censure. That could happen.
The stomach for a censure resolution or anything after you
went through that process I think would be unlikely that
anybody would want to go forward. It is--as I said I think
before, it is absolutely consistent with the Constitution for
you to reach the judgment if this is what you think is right.
If you say, on balance, we don't like this conduct, but we
don't think that we will vote impeachment, we don't think it
rises to that level, so we have answered our question, we are
not going to charge, then I agree with Jeffrey that you have
every right under the Constitution to pass a resolution just as
you would condemning Saddam Hussein, praising Turkey, you know,
creating National Mother's Day, whatever you want to do you can
do.
The thing I think he is wrong about, and I think it is not
unimportant, is a joint resolution of both Houses I think must
be sent to the President, and that is a significant thing.
Because his signing it could be, when you talk about bringing
us together, it seems to me that that is something that might
work.
Mr. Bryant. Okay.
Mr. Hyde. The gentleman's time has again expired.
Mr. Delahunt is being recognized out of order with the
permission of those people disadvantaged by this maneuver.
Mr. Delahunt. Thank you, Mr. Chairman.
I appreciate my colleague's--I have a meeting that I have
to attend to, and I appreciate my friend, Mr. Bryant, raising
the issue of censure, because it is my intention to bring a
resolution of censure up when we go to markup on this
committee.
And I am really struck by the testimony of Judge Wiggins. I
have a memory, Judge Wiggins, of watching you as a member of
the minority during the Watergate hearings. I had dark hair at
that point in time, and I am sure you can empathize with my
position as a member of the minority.
But you said something just recently or just a moment ago
regarding President Nixon, and you made the statement that you
heard evidence. And I would ask you to refresh your memory as
to the witnesses you actually heard from, whom you took
testimony from, if you can remember.
Mr. Wiggins. Well, yes. We heard testimony from H.R.
Haldeman, from Ehrlichman, John Ehrlichman, from John Dean,
from a guy named Parker, I think his name was.
Mr. Delahunt. That's fine. I simply wanted to make the
point that during the Watergate hearings--and you were, as I
indicated, a minority member, you are a Republican--the process
at that particular juncture in our history was to take evidence
from individuals who had firsthand knowledge of the events that
occurred and which led to a vote on articles of impeachment. Is
that a fair statement?
Mr. Wiggins. I think so. But there is a difference, and I
think you should recognize that difference. The President of
the United States has literally admitted----
Mr. Delahunt. I am sorry?
Mr. Wiggins [continuing]. Admitted to telling a falsehood.
Mr. Delahunt. I might disagree with you. In fact, I do
disagree with you on that particular point, but I respect your
opinion.
I just want to move to another subject, and that is the
discussion surrounding censure. Because, again, I want to read
from your written testimony, which I found interesting, and I
am quoting: ``I don't mind confessing that if I had a vote on
this committee, I would vote to impeach the President''----
Mr. Wiggins. Yes.
Mr. Delahunt [continuing]. ``But before the full House of
Representatives, I certainly am not sure. I am presently of the
opinion that the misconduct immediately occurring by the
President is not of the gravity to remove him from office.''
Mr. Wiggins. That's the remedy.
Mr. Delahunt. Would you then support a resolution to
censure or sanction or rebuke or condemn?
Mr. Wiggins. Oh, yes. You should read on in my testimony. I
recommended that the President be sanctioned monetarily, and I
bounced a figure of $1 million off of you, and that he be
personally brought to account by the resolution of probably
both Houses.
Mr. Delahunt. So you as a former member of this committee
who sat as a member of the Watergate proceedings feel
comfortable with the concept of censure?
Mr. Wiggins. Well, yes. There is some historical precedent
for it. The person of Andrew Jackson is clear, although it was
reversed subsequently.
Mr. Delahunt. I also just want to make a point, too, in
terms of your testimony, you used the concept of probable
cause, and I respectfully take issue with that particular
standard, because from everything that I have been able to
discern from the precedents and the literature, the standard is
clear and compelling evidence, or clear and convincing
evidence.
Mr. Wiggins. Well, it has been articulated in many ways,
and I think you will probably find the use of the term beyond a
reasonable doubt in the Nixon impeachment process.
Mr. Delahunt. In--my time is running out, and again, I
don't mean to interrupt you----
Mr. Wiggins. The proper analogy is the grand jury analogy.
Mr. Delahunt. Fine. Let me just conclude by asking this
particular question. Do you think it is the responsibility of
this committee to hear evidence as you did during the Watergate
hearings from witnesses who had firsthand knowledge? By doing
that, I believe--and I will give you my opinion--I believe we
meet our constitutional responsibility, rather than simply
accept a report from a prosecutor which clearly creates in many
areas disparate inferences and can lead to varying conclusions.
Do you feel that we have that constitutional responsibility?
Mr. Wiggins. Well, I am not sure. I am not sure. I think
your responsibility is to get at the truth and to resolve the
legal question of whether the offenses alleged are high crimes
and misdemeanors.
Mr. Delahunt. I note my time is up, and I want to thank you
very much. I would also just note for a matter of record that--
while I don't want to get into the nuances of perjury, there
are gradations.
Mr. Wiggins. Oh, yes indeed.
Mr. Delahunt. In Massachusetts, for example, if you commit
perjury in a capital case, the sanction, the penalty is life
imprisonment. If you commit perjury in a civil deposition,
clearly the court I presume would entertain something less than
life imprisonment.
Mr. Hyde. The gentleman's time has expired.
Mr. Delahunt. Thank you, Mr. Chairman.
Mr. Hyde. The gentleman from Florida, Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman.
I want to thank all of the members of this panel for being
with us here today. We appreciate your testimony, which I think
has been helpful to the work of the committee.
I want to go back to a question that was raised by Mr.
Scott on the issue of whether any official has ever been
impeached for personal misconduct as opposed to abuse of
office.
I can't give an exhaustive answer to that, but one clear
example of an official recently being impeached for personal
misconduct as opposed to abuse of office is the case of Judge
Harry Claiborne, a district court judge from the State of
Nevada. In that case, Judge Claiborne was impeached by the
House and removed from office because he signed an income tax
return that was false. Basically, he was removed because he
made a false statement about his personal income. I think that
example is very clear, it is relatively recent, and I think
that should be noted.
Now, on this issue about perjury and gradations of perjury,
I think all of us would recognize that any offense, depending
on the context, may be more serious than that same offense in
another context. That is not really contested. What I object to
is the argument that any acts of perjury that the President may
have committed would fall into the category of less serious
offenses of perjury.
Now, I agree that we should not apply a per se rule that
any perjury automatically, regardless of the context, would
result in impeachment. But I think we have to look at several
factors in the evidence before us which go to the seriousness
of the offenses that the evidence shows the President
committed. And I haven't reached a final conclusion on that,
but so far we are seeing no effort to really rebut the facts.
And the facts show that this was a pattern of conduct. It
shows that there were multiple instances of perjury. There was
a false affidavit. There were multiple lies, which Mr.
Goodlatte recounted in his statement earlier today, in the
President's deposition. There was perjury before a grand jury.
And, finally, I believe that there were false and misleading
answers to the questions that the Chairman of this committee
propounded to the President very recently.
Beyond that, the perjury was calculated. This is not a case
of a witness being surprised and reacting instinctively and
understandably to cover up an embarrassing situation. Instead,
this is the case of a witness who went in with a plan to lie.
This was calculated. And I think that goes to the seriousness
of the offense. And, to state the obvious, the perjury was
sustained. The evidence points to the conclusion that the
President has been lying for nearly a year.
Now, I suggest to you that all of this points to the
conclusion that the President has been guilty of an egregious
disregard for the oath that he took to tell the truth, the
whole truth and nothing but the truth. Now, we can have
differences of opinion on that, but I think we need--if we look
at this in context, we are pushed toward the conclusion that
this is, indeed, not a trivial instance of perjury, but a
serious matter.
Now, I would again refer the members of the committee to
something I read earlier. Now, this is a statement that was
prepared, a report prepared by the Association of the Bar of
the City of New York on the law of presidential impeachment. I
think this is important, because this was prepared long ago in
the context of the Nixon impeachment. This was not aimed at
anybody who is before us today. This wasn't framed with a view
toward getting at President Clinton. But what the lawyers of
the bar association of New York said is this. This is their
conclusion:
``We believe that acts which undermine the integrity of
government are appropriate grounds for impeachment, whether or
not they happen to constitute offenses under the general
criminal law. In our view, the essential nexus to damaging the
integrity of government may be found in acts which constitute
corruption in or flagrant abuse of the powers of official
position. It may also be found in acts which, without directly
affecting governmental processes, undermine that degree of
public confidence and the probity of executive and judicial
officers which is essential to the effectiveness of government
in a free society.''
I believe that this is a reasonable interpretation of the
impeachment power, and I believe that the course of conduct
which the evidence points to here undermines the integrity of
government. I don't know how else you could interpret that.
So I would just ask that the members step back and look at
all of the evidence, look at this in a dispassionate way, and I
think if we do that, we are going to understand that we have a
very, very serious matter before us.
Mr. Dershowitz, I just want to respond to what you said
about the motives of the members of the committee. None of us
are enjoying this. This is not to the political advantage of
anyone, and you don't have to be very smart to figure that out.
But we have a serious matter before us, and we are trying to
deal with it in a responsible way, and I think that is the duty
that we have under the oath that we have taken under the
Constitution.
I yield back the time which I don't have remaining.
Mr. Hyde. The gentleman's time has expired.
Once more, we leap out of turn for Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
First, I would yield to Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
The gentleman from Florida mentioned the Claiborne case.
First, I would like to clarify the question that I asked Judge
Wiggins was whether he knew of any individual impeached for
personal activity involving perjury. It wasn't any impeachment;
it was just perjury. But since----
Mr. Canady. If the gentleman would yield.
Mr. Barrett. No, no.
Mr. Scott. But since the gentleman mentioned the Claiborne
case, I just want to say 727 F.2d at page 42, where it says
that count 1 of the indictment alleged Claiborne solicited and
received $30,000 in return for being influenced in his
performance of official acts, and footnote one said that counts
4, 5 and 6 charge that Claiborne failed to report bribes as
income on his tax returns, which I think associates it, and it
was still doing research on this.
Mr. Barrett. I yield to Mr. Conyers.
Mr. Conyers. Professor Dershowitz, do you happen to have a
response to my friend from Florida's reference to the New York
bar evaluation in 1974? About this pattern of lies and so forth
that, to him, creates a case. I just wanted to see if there was
a brief response from you.
Mr. Dershowitz. I appreciate that. I think the Association
of the Bar of the City of New York report is regarded very well
by people, historians and legal scholars. It was talking
largely about impeachment in general of judges and not singling
out the President. I think many scholars now agree that the
criteria for impeaching and removing a President must be
different from the criteria for removing a single member of the
judiciary. A member of the judiciary, for example, serves
during good behavior, and any failure of good behavior might
constitute an impeachable offense or removable offense. The
President is the executive branch of government----
Mr. Barrett. If I could, I would reclaim my time.
Mr. Dershowitz. I am sorry--so I think it is quite
different.
Mr. Barrett. We have had a good afternoon. We have heard
from 9 gentleman who are very good. Last week, we heard from 9
or 10 gentleman who are experts on impeachment, and one woman.
I think the time is now to bring in 10 mothers or 10 grade
school teachers to talk about what we do when someone has done
something wrong, because that is what has occurred here. We
need again to move forward.
I hear my colleagues from the other side who say that
perjury is a serious offense, and I agree with that. People
should not perjure. It is that simple. People should tell the
truth when they are under oath.
But the question that we face is if we want this principle
to be held in high regard, what do we do? And I have yet to
talk to one single person who thinks that the U.S. Senate would
ever have a two-thirds vote to convict the President and remove
him from office. So if we are going to go down that route, at
the end of the day, those people who say that he must be held
accountable are going to be as angry then as they are now. The
only difference is we are going to drag this country through a
year of hearings, and I don't think that that is going to
increase respect for the rule of law. I think the longer we
drag this thing out, the worse it is going to get.
This whole incident, escapade, reminds me of a problem in a
family: Uncle Harry did something wrong, and I think the
question we have to decide is are we going to continue to flog
ourselves for 9 months, 10 months a year as a family, as a
national family, or are we going to deal with it?
The American people have said over and over and over again,
we want you to deal with it. And I think that the censure
resolution shows the gravity of the offense and allows us to do
it in a way that does not drag this on. We should move on to
something else. We should move on to the Nation's business.
If in the end we are going to have an impeachment without a
conviction, it is really no different in effect than a censure,
because an impeachment without a conviction is also just a slap
in the face. Some might argue it is a stronger slap in the face
or it is a constitutionally created slap in the face, but it is
a slap in the face, nothing more.
President Clinton is going to carry this with his legacy,
and when he gets to heaven or wherever he goes and all the ex-
presidents are standing there, and they are going to say what
was the biggest event in your last 23 years, his legacy is
going to be: I either escaped impeachment or I didn't. If I
were President of the United States, that is not something I
would be proud of. So I think he is carrying a scar with him,
and it is a scar that he can't escape, regardless of what this
committee does.
But I think it is time for us to move forward. I think that
the Chairman should get together three Republicans and three
Democrats, or four Republicans and four Democrats, on a
bipartisan basis. It would be just like we did when Speaker
Gingrich got in trouble. We had people from both parties sit
down, iron out what the language should be, and then we bring
it to the floor. And we move on.
We should be acting like the Ethics Committee in that
matter where the Speaker had lied. We can do that, and we
should do that. If we do, I think this committee will be
remembered as doing something great, Mr. Dershowitz. I think we
will be remembered as a committee that fought bitterly, but in
the end decided that, for the sake of this country, it was more
important for us to say that perjury is wrong, to say that
lying under oath is wrong, and to say this is what the
condemnation will be: a public reprimand.
And that is not something that is taken lightly. The last
time it happened was 150 years ago. I don't think that there is
a danger that you are going to have every Congress applying the
same remedy simply because they disagree for political reasons.
I yield back the balance of my time.
Mr. Hyde. I thank the gentleman.
I would announce that it is almost 5 o'clock, and some of
the panel have expressed a desire to leave because of
commitments, and we sure understand that. So I want you to
know, none of us will be offended if you should head towards
the door, but we will try to wind up as quickly as we possibly
can if the questions are crisp and the answers are crisper.
So the gentleman from South Carolina, Mr. Inglis.
Mr. Inglis. Thank you, Mr. Chairman.
We have heard the other view. You know, it is interesting.
Apparently, no matter what, particularly you, Mr. Chairman, do,
you will be criticized, because now we hear that we need to
move along and not I assume have any witnesses. That was the
import of the last discussion, no witnesses, move along. So I
really understand the challenge that the Chairman has. He has
really got to figure out these sort of conflicting arguments
that we are hearing.
Another point that I would make, Mr. Chairman, is Mr. Frank
mentioned earlier something that I dare say that neither
Admiral Edney or General Carney would probably be comfortable
speaking of, but, if I may, I will not speak on your behalf but
on behalf of many South Carolinians who have said this to me,
is that they and military families are severely affected by
what is going on in the White House and that morale is
dangerously low and dangerously affected by what they perceive
is a clear lie by the commander in chief.
Again, I won't put the folks in uniform or formerly in
uniform on the spot there, but that is what I am hearing. It is
the same thing that I hear from my 8 year old who said to me
recently, Daddy, the President is lying, isn't he? I said, yes,
he has admitted to lying, admitted to lying under oath.
Now, he would say it is not technically perjury, and maybe
Professor Dershowitz has a new client here because he says that
his clients commit the crime and then they compound their
problem by lying about it. So he may have a new client here
down at the White House. William Jefferson Clinton would be
available as a good client to fit that MO.
But there is something that I would particularly like to
take up with my evidence professor, Professor Saltzburg. There
is something that I do find that I agree with Professor
Dershowitz about, and I would disagree with what you were
saying, and that is, I think Professor Dershowitz is right. The
prospect of this President being prosecuted after leaving
office is really a nonstarter.
I mean, I would love it if it weren't, because I think that
is, as you said earlier, a way of vindicating the rule of law.
If we don't impeach and if the President has committed the
crimes that he is accused of and if we don't impeach, then
prosecuting him upon leaving office is one way to vindicate the
rule of law.
And in response to some questions from Mr. Boucher earlier,
there was some discussion from Professor Dershowitz about how
that is really a nonstarter.
So I would ask you, Professor Saltzburg, the prospect of
this President entering the east front of the Capitol, walking
over to the west front to swear in a new President in 2001 and
then walking back to the east front and being handcuffed upon
descending the stairs is probably not a picture that any
President who succeeds him would want to be part of.
So is that really a nonstarter in what we are talking about
here? Your suggestion that he might be prosecuted and that
would be a way of vindicating the rule of law, is that really a
nonstarter? Do you disagree with Professor Dershowitz on that?
Mr. Saltzburg. I disagree with him in part.
By the way, it is quite an honor to have a former student
hold your position. It makes me very proud. That is why we
teach. I had hoped that you would put a question to me, and I
would try my best to answer it.
Mr. Inglis. Let me put a hypothetical to you. That would be
a better way, and then I could call on you: Mr. Saltzburg,
answer this question.
Mr. Saltzburg. I think the--what I would say is, I don't
want to repeat myself, but, immediately, I think if you make a
decision or the House makes a decision not to proceed further,
I think that the President, like any person who deceived a
Federal court as a litigant, can be punished by the court
without any doubt, and I think that will happen. I think that
is a starter. I think that is required if this system is going
to make any sense.
Now, as to whether he will be prosecuted, I have my doubts.
I have my doubts. Because I tell you what I really think will
happen. I believe that when this process ends, and I believe it
will end, I think the Republican candidate for President,
whoever that person is, will say, I would pardon him if
somebody would try to prosecute him because this process has
punished him.
Every punishment comes in very, very different ways. We all
know that. No other American would be put through anything like
this process. No other American would be censured as he might
be.
And I think that if I were Judge Wright and the case were
before me rather than before you, the punishment I would impose
in terms of a sanction on him would be so much higher than I
would impose on any other citizen to send a message that what I
believe is not only that honesty and integrity in the courts
matter, for the reasons Judge Tjoflat said, but that
responsibility does increase with the office that you hold. And
the lessons we teach are important. I just tried to say, you
don't need to impeach a President to teach those lessons. There
are better ways to do it.
Mr. Hyde. The gentleman's time has expired.
The gentlelady from Texas.
Ms. Jackson Lee. I think you are aware, Mr. Chairman, that
I am not taking anyone's place out of order.
Mr. Hyde. No, ma'am.
Ms. Jackson Lee. Let me--as Professor Saltzburg has to go,
let me thank him for his presence and thank every one of the
panelists for what has been an eloquent presentation of a very
difficult question. Each of you have acknowledged the task and
the charge that we have before us. And excluding the military
witnesses and I believe Judge Tjoflat, I think collectively
witnesses on both the minority and majority side seem to
conclude that there is a major question as to whether or not we
have in these fact situations impeachable offenses. And I
think, frankly, surprisingly for all of us, on December 1,
1998, we may have some form of consensus.
I think it is also good that many of us are discussing
censure in this committee. Several of us, including myself,
have drafted resolutions on censure and expect to offer them.
So maybe we have come further than we thought we would have
come.
So I would like to just pose some questions and make some
comments, in particular to Judge Higginbotham and General
Richardson.
I think that our Republican friends are splitting hairs, if
you will. Royalty of many years ago stated, let them eat cake.
And for some reason, I think my colleagues are attempting to
have their cake and eat it, too. And the reason I say that is
because impeachment is decidedly a constitutional process.
But yet my colleagues today have been reminding us
constantly of the rule of law, and I would simply bring to the
panelists' attention as to whether or not we have actually had
the rule of law in these proceedings. Was it the rule of law
when due process was denied the President by way of no notice
and the lack of the opportunity of his lawyers to make a
presentation for more than 30 minutes until raised in the
committee? Was the rule of law followed when attorney-client
privilege was obliterated and ignored? Was the rule of law
followed when grand jury testimony was released not to the
Nation or to the House of Representatives but to the world?
And, frankly, do we have the rule of law when we ignore the
rights that are given to any American who might defend
themselves against perjury on the grounds that they thought
they were telling the truth, or whether or not the issue was
material?
So I think that as we discuss this very somber process we
have to consider what we have done to the rule of law and
realize that we are standing more grounded in the basis of
constitutional premises as we decide really the decision that
will warrant one of conscience and understanding of the
Constitution.
Let me, before I ask a question, just simply say to the
gentlemen representing the military, I have the highest degree
of respect for you and your service and the men and women who
have served us and are serving us in this Nation. In fact, it
saddens me that this week in Texas we lost Roy Benvedes, a
Medal of Honor winner, who rose time and time again, wounded in
Vietnam, to save several of his comrades, to participate in
reconnaissance. And when they wanted to applaud him, he simply
said, it was my duty.
So I would take issue with you about any suggestion of the
demoralizing of the outstanding military personnel that we have
for the bad acts, of the commander in chief, or any other
commander in chief, such as President Reagan, who did not
remember the Iran Contra Affair: selling weapons for drugs or
vice versa. I respect you for your presence.
But let me ask Judge Higginbotham and the General these
questions. Judge Higginbotham, I would ask the questions, if
you would answer it. Would you help me understand the
distinction between the criteria for a presidential and
judicial impeachment? That has been raised about an impeachment
of a judge, and we keep talking about double standards around
here and why the President is privileged, and I think the
American people should not have a distorted perspective. I am
going to finish my question, and then I would like you to
answer it.
General Richardson, let me thank you for being a great
American. You were actually in the midst of the proceeding, the
activities of 1974. You resigned rather than be fired by the
President of the United States because you refused to fire, I
believe, Archibald Cox, if I have it accurately, who refused to
accept the compromise of President Nixon. Do you think at that
time there was abuse of power, and do you feel that we would be
in a comfortable position if we offered to resolve these
matters with a censure by this body, by this House?
Mr. Richardson. I would say very clearly that the
distinction is sharp and wide because of the pattern of some
actions undertaken by Richard Nixon, all of which were
antecedent to, or separate from, any false statement by him. He
was, in addition, charged with false statements, the so-called
cover-up of the burglary. But there was a pattern shown in
Watergate which involved abuses of executive power, the
deliberate undercutting of the procedures of various
institutions of government, and the condoning, indeed, of a
second burglary, that of the psychiatrist Elsburg, a man who
had written a critical analysis of the conduct of the Vietnam
War.
To put it briefly, there is no comparison between the
aggregate of the things for which this committee voted articles
of impeachment in 1974 and the conduct of the President in a
sexual relationship with a White House intern. So if you put
the conduct on one side and look at the conduct of President
Clinton and compare it with the conduct of President Nixon, the
contrast is marked and dramatic.
On the other side, the elements of concealment primarily
noted in the Nixon case are with regard to the burglary. But a
long series of attempts to conceal, avoid, deny, and deceive
goes back to the very existence of the sexual relationship with
Monica Lewinsky.
So the issue before the committee is how seriously should
we regard that cumulative series of efforts to hide the
relationship. There is a lot of it, but there is only one
underlying situation, and that one underlying situation did not
in any respect involve matters of state or the powers of the
president per se.
So it is against that background one addresses the
question--was this aggregate set of misleading statements--
lies, whether or not technically perjury, sufficient to be
regarded as a high crime or misdemeanor?
Now, what I have suggested and I would submit to this
committee--and I am glad I have the opportunity to restate it--
is that there are only three possible outcomes of this matter.
One is removal from office. If the President is impeached by
the House, it automatically then and there goes to the Senate.
The Senate is then required to hold a trial. A trial can only
have two possible outcomes: acquittal or conviction. If the
President is convicted, there is only one penalty permitted by
the Constitution, and that is removal from office.
Now, this committee can right now, as I have tried to
emphasize, address the question of whether everything you know,
assuming the worst--with great respect to the members of the
committee who have said, well, we haven't heard the witnesses,
I would say, yes, if the question of whether or not to impeach
might be tipped one way or the other, by all means, hear the
witnesses. But if you assume the worst of everything that has
been said and ask yourselves the question, do we believe that
because of this issue of lies the President of the United
States should be removed or not? You know everything you need
to know to answer that question. Why not address it?
If the answer is, yes, he should be removed, then you vote
the articles of impeachment that would get submitted to the
House and if approved by the House, it would go to Senate. But
if you think that is too much--and, by the way, as a law clerk
for judges, I learned that all the hard questions are questions
of degree. You can't divide the outcome into a series of
graduated responses, no matter how close the call may be. You
only, as a practical matter, have one choice, to impeach or
not, censure or not.
Mr. Hyde. The time of the gentlelady has expired.
Mr. Conyers. Judge Higginbotham was asked a question, sir.
Ms. Jackson Lee. I would appreciate it if he could answer
the question.
Mr. Cannon. Mr. Chairman, the lady's time has far since
expired.
Mr. Conyers. We weren't questioning that, sir. We were just
pointing out that Judge Higginbotham had been asked the first
question and had not responded.
Mr. Hyde. Certainly. We will hear from Judge Higginbotham.
Ms. Jackson Lee. Thank you, Mr. Chairman. Thank you, Mr.
Conyers.
Mr. Higginbotham. Well, Mr. Chairman, keep the light on. I
won't be long.
Mr. Hyde. Sounds like a commercial for a motel, doesn't it?
We will keep the light on for you.
Ms. Jackson Lee. I will be there.
Mr. Higginbotham. There is a Brahman expression, if you
don't know where you are going, any road will take you there.
And the importance of a civilized society is that you have due
process so that you do have a road map which describes the
journey which one must take to get justice.
I think that there are more profound injustices which are
cause by procedural unfairness than by substantive
adjudication. So in terms of what this group should do, you, I
submit respectfully, should be the models of fairness from an
analytical way in terms of how you probe evidence.
More than 60 years ago, a governor of Mississippi pled
before the U.S. Supreme Court in behalf of black prisoners who
had received capital punishment; and he said to Chief Justice
Hughes, help us save my State, because they have been denied
due process. And that was the first case where the U.S. Supreme
Court ever held that a confession which had been extracted
involuntarily with brutality and cruelty was not admissible,
and that is a gloried day in the history of the Supreme Court.
It seems to me that you have the same kind of obligation
that Chief Justice Hughes recognized the Nation must have in
terms of procedural fairness, and the questions you raised fit
within that.
Mr. Hyde. The gentlelady's time--are you through, Judge? I
am sorry.
Mr. Higginbotham. I will waive the rest of what I was going
to say.
Ms. Jackson Lee. Mr. Chairman, he had a question on
comparing.
Mr. Hyde. Ma'am, really----
Ms. Jackson Lee. May I just ask him to put it in writing
for me, please?
Mr. Hyde. Yes.
Ms. Jackson Lee. Judge Higginbotham, I will await your
answer in writing on the difference between presidential and
judicial impeachments.
I thank you. I know that you answered several questions at
once.
Mr. Higginbotham. And I have it on page 10 and 11 of the
document I submitted to you, because I think it is one of
profound difference.
Ms. Jackson Lee. Thank you.
Mr. Hyde. Mr. Goodlatte.
Mr. Frank. Mr. Chairman, could I just for a second thank
you for your forbearance? This has been a tough day, and you
have really gone out of your way to keep this in the best
possible light. I want to express my appreciation.
Mr. Hyde. I owe you a very good cigar.
Ms. Jackson Lee. I echo that, Mr. Chairman. Do I get one as
well?
Mr. Hyde. I plead the fifth.
Mr. Frank. Not from me.
Ms. Jackson Lee. Mr. Chairman, we are an aboveboard
committee here.
Mr. Hyde. Yes, we are, indeed.
The gentleman from Virginia.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Chairman, all afternoon we have been treated to
diatribes by Professor Dershowitz regarding the motivation of
the members of this committee regarding the issue of perjury
and his assertion that we don't care to address it except when
it amounts to what he considers to be the lowest level of
perjury, which is somebody lying to conceal something--their
embarrassment about their personal indiscretions.
First, I reject both of the premises. I agree with the
gentleman from Florida that no one on this committee on either
side of the aisle has asked to have this burden placed upon us,
and it is incumbent upon us to deal with the facts that we have
before us. But most especially I reject the second assertion,
and that is that this is simply about lying to cover up
personal indiscretions.
First, with regard to the testimony before the grand jury,
at the end of the process, I would like to read something
written on August 20th of this year: ``If the President's
public speech is any guide to what he swore behind closed
doors, it may be possible to discern his new battle plan, to
admit to private sexual indiscretions, which are provable but
not impeachable, and to deny obstruction of justice and
subornation of perjury, which would be impeachable but are not
provable.''
You wrote that, Professor Dershowitz----
Mr. Dershowitz. That is right.
Mr. Goodlatte [continuing]. In the Boston Herald on August
20th under your byline, and it seems to me that on August 20th,
you hit the nail on the head. The reason for the President
testifying falsely under oath, if indeed he did, before that
grand jury was not to cover up personal indiscretions, because
he went on national television moments after that testimony and
admitted those personal indiscretions. The reason he lied, if
the evidence supports that conclusion, is because he wanted to
evade criminal prosecution for his previous efforts to obstruct
justice, suborn perjury, and commit perjury in the Paula Jones
lawsuit.
So now we go back to the Paula Jones lawsuit, and we say,
well, did the President of the United States lie under oath in
that case for the purpose of avoiding personal indiscretions?
Well, I suggest not, because in those very depositions he
admitted to other personal embarrassing indiscretions that he
had committed.
No, I would suggest to you that the evidence would suggest
that he did so for the purpose of defeating that lawsuit, of
winning the case, which, I might add, is exactly the same
reason why you have criticized and rightly criticized police
officers and others for committing perjury and lying under oath
in cases involving your clients that you have defended and
others, to win the case. It is exactly wrong for them to do it
and exactly wrong for the President to do it, and we certainly
should take a strong stand against perjury, including perjury
by law enforcement officers.
And recently a Boston police officer--you may be familiar
since you are from the Boston area--was recently sentenced in
Federal court to 2 years and 10 months in prison for being
convicted of one count of perjury before a Federal grand jury
and one count of obstruction of justice for giving evasive and
misleading testimony and withholding information from the grand
jury. The officer lied about his observations of events where a
plainclothed officer mistaken for a suspect was beaten by other
Boston police officers.
I agree with you. I was going to ask you the question
before we ever got your testimony at the outset, and I agree
with you, though, that lying under oath by law enforcement
officials is particularly egregious. But what about lying under
oath by the chief law enforcement officer in the country, the
President of the United States, and not simply to cover up
personal indiscretions but to defeat a lawsuit and to avoid
criminal prosecution because of previous violations under the
law? That, it seems to me, is the heart of what this matter is
about before this committee, not lying to cover up personal
indiscretions.
I will give you an opportunity to respond. Briefly, since I
have very little time.
Mr. Dershowitz. I appreciate it. Thank you very much.
First of all, I did not engage in diatribes against this
committee. I responded to a point made by the Chairman
characterizing my remarks which he did not hear, and I
responded to a specific allegation made in a single instance,
and I stick by what I said. If I offended anybody, I am sorry.
I certainly don't want to attack the----
Mr. Goodlatte. Apology accepted.
Mr. Dershowitz. Well, I don't want to attack the
motivations of any individual on this committee, and I intend
to--what I have looked at is the votes of the committee on a
partisan basis. That is upsetting. The issue that you have put
is a very good one. In a book that I have written analyzing the
case, I don't completely disagree with your analysis. I think
that the problem began with an attempt to keep from the
President's family a matter of personal interest. It then may
have evolved and evolved and evolved. I take it very, very
seriously. And I am very critical of the President's actions, I
am critical of the actions of his lawyer Robert Bennett for
allowing him to get into this situation rather than settling
the case, and I don't mean in any way to trivialize the
President's misbehavior. I do very strongly take the position,
though, that there is a difference between an impeachable crime
of perjury and condemnable but not impeachable allegations of
perjury.
Mr. Goodlatte. Since my time is very brief and may have
already expired, let me recall my time that is remaining and
serve you some more of your words, because I think that is the
heart of the question there, divining between whether or not
this is an impeachable offense or not, because you do agree
with us that certain types of perjury would be an impeachable
offense.
Mr. Dershowitz. Of course.
Mr. Goodlatte. Well, on July 29, 1998, you appeared on the
show Hardball with Chris Matthews. During that show you said, I
think his lawyers and he are in a very difficult dilemma,
referring to the President, precisely because it is what he
does from now on, and your comments were prescient because this
was in July before he ever appeared before the grand jury. If
he were now to go in front of a grand jury and he were to
repeat his apparently categorical denial of any sexual contact
and get himself into a swearing contest with a bought witness,
Monica Lewinsky, that could cause a very serious problem. If
the prosecutor could prove that he committed perjury in front
of a grand jury, he would, I believe, be impeached.
Mr. Dershowitz. I stick by that position.
Mr. Goodlatte. That is what we are going to decide in this
committee, Mr. Chairman. I yield back.
Mr. Dershowitz. Let me please finish the answer because you
have taken my answer out of context. I was very prescient.
Before he ever testified in front of the Paula Jones case, I
urged settlement or default. I wish he had taken that advice. I
also urged that he be completely forthright in his grand jury
testimony. I don't believe he was completely forthright in his
grand jury testimony. But I don't believe that he committed
perjury in his grand jury testimony.
And there is a big difference. He did not categorically
deny any sexual contact. He admitted sexual contact. And then
he refused to answer questions, and the committee--I'm sorry,
and the Starr people didn't press him, as perhaps they should
have and might have. And so I think we have a record that is
not--does not demonstrate perjury in front of a grand jury. If
it did, or if there were evidence of subornation of perjury, of
the kind of cover-up that you describe, I think it would be a
very, very different matter. Even though the origin was an
offense of sexual conduct, if it eventually escalates to the
point of obstructing and suborning and compounding the perjury
in front of a grand jury, that escalates the matter very
considerably.
Mr. Hyde. The gentleman's time has expired.
The gentleman from Massachusetts Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman.
The hour is getting late. It has been a long day. I guess
we do impeachment by news cycles. I guess the news cycle today
is going to be that the impeachment matter is going from the
Lewinsky matter to campaign finance. We are going to have a
reprise of Dan Burton's greatest hits. That will be the news
cycle tomorrow.
I always find it interesting to hear many of the
committee's Republican members expounding on the campaign
finance abuses. It seems that many of them didn't appear the
slightest bit interested in closing the soft money loophole,
which is the root of many of our campaign finance abuses, at
the time when we debated the issue on the floor of the House,
when we had a bipartisan bill that 51 Republicans voted for,
but the vast majority of members of the committee didn't vote
to close that loophole at that time. Nonetheless, we were able
to pass a bill through the House.
I am interested in many of the comments. I associate myself
with the comments of Mr. Barrett, my colleague from Wisconsin,
when he talks about the need for bipartisanship, and wouldn't
it be great if we could get three Republicans and three
Democrats to get together and work out some kind of a censure
or some kind of a reasonable middle ground. But it isn't going
to happen. Every Republican member of this committee will vote
to impeach the President. It is a vote that is going to take
place next week, because the week after that, we need to have
the full House come in to vote on it. So as much as it would be
nice if we could listen to the witnesses and determine whether
there is a reasonable middle ground, this is a done deal. The
die has been cast. We are going to vote; a majority of the
members of the committee are going to vote to impeach the
President of the United States sometime next week, regardless
of who is subpoenaed, regardless of who is or isn't called as
witnesses, and whether they are material or not.
I was interested to hear Attorney General Richardson talk
about the gravity of what we face, because I hear a lot of
Republican Members say, ``Well, we are going to vote to impeach
the President, but we are just like a grand jury. We are a
grand jury here. We just determine whether we send it over to
the U.S. Senate for trial. The trial would be over there. This
is the same standard that any grand jury would have to meet.''
Well, that is fine. But any of us who have been around
grand juries clearly recognize that the old saying that a grand
jury would indict a ham sandwich if a prosecutor suggested they
should is true. I call this, by the way, the ``Ham Sandwich
Theory of Impeachment.'' ``We are just a grand jury, we are
going to send it over to the Senate. Let them decide whether
the President should be removed.''
I was interested, Attorney General Richardson, on your
perspective on that. I am wondering, what do you think about a
lax level of scrutiny, and is it appropriate for the Judiciary
Committee or the full House to use this grand jury ``ham
sandwich'' level of scrutiny to impeach the President?
Mr. Richardson. Obviously my answer is clearly no. When I
was U.S. Attorney for the District of Massachusetts, my
instruction to my assistants was that they should never seek an
indictment unless, if they were the trial judge, they would
reject a motion for a directed verdict of acquittal at the end
of the government's case. And I think that is the standard that
this committee ought to have. But I have to reiterate that in
the criminal process, in the criminal courts, the sentence can
be very precisely adjusted to the relative seriousness of the
offense.
I don't yield to anybody at this table, including my
military colleagues, as to the seriousness of the offense of
perjury or misrepresentation of the truth in any government
context. But unlike the Federal district court, the Senate has
no choice in deciding what the appropriate sentence should be.
That is why, as I say, from my point of view, I say
respectfully, you could address any old time the issue of
whether or not removal would be the correct result. A vote to
impeach is a vote to remove. If Members of the committee
believe that should be the outcome, they should vote to
impeach. If they think that is an excessive sentence, they
should not vote to impeach, because if they do vote to impeach,
the matter is out of their hands and, if the Senate convicts,
out of its hands.
Mr. Meehan. Thank you.
Mr. Hyde. The gentleman's time has expired.
The gentleman from Indiana Mr. Buyer.
Mr. Buyer. Thank you very much.
I have with me here testimony of Admiral Thomas H. Moorer,
U.S. Navy, retired, a former Chairman of the Joint Chiefs of
Staff and would ask unanimous consent that his written
testimony here be placed in the record, Mr. Chairman.
Mr. Hyde. Without objection, so ordered.
[The prepared statement of Mr. Moorer follows:]
Prepared Statement of Thomas H. Moorer, Admiral, USN (Ret.), Former
Chairman of the Joint Chiefs of Staff
I appreciate the Judiciary Committee's invitation to submit these
comments on the corrosive effects on the military's code of honor of
having a Commander in Chief who has admitted misleading the nation. The
President, by his own poor choices, has created a crisis of
constitutional proportion within the same Armed Forces he is duty-bound
to lead. It is now up to Congress to solve this crisis by holding the
President accountable.
When I had the honor to serve as Chairman of the Joint Chiefs of
Staff in the early 1970's, I was the senior uniformed member of the
U.S. Armed Forces. As such, like every other commissioned officer, I
served ``during the pleasure of the President.'' Like every other
officer, I also swore to ``support and defend the Constitution of the
United States against all enemies foreign and domestic,'' and to ``bear
true faith and allegiance to the same. . . . So help me God.''
The Committee is addressing today a critical problem within the
Armed Forces that many civilians do not fully appreciate. The President
is the Commander in Chief. Although he does not wear a military
uniform, he is a military leader. In this regard, I urge the Committee
to address two fundamental issues of military leadership: honor and
accountability. Within the leadership of the U.S. Armed Forces, these
virtues are indispensable. Without them, soldiers, sailors, airmen,
marines, and civilians die unnecessarily.
If the Committee finds that the Commander in Chief has engaged in
conduct that undermines the standards Congress has set for military
leadership--to which the President has already indisputably admitted--I
urge Congress to hold the Commander in Chief accountable not only for
the good order and discipline of the U.S. Armed Forces, but also, more
fundamentally, for the survival of the American Rule of Law.
When a military leader chooses to engage in dishonorable conduct,
he either resigns or is removed from any position of responsibility,
i.e. cashiered, by those to whom he is accountable. In any event,
military leaders are accountable for poor choices. Military leaders
also serve as role models for honorable and virtuous conduct. Their
troops expect no less. When the troops know a leader is not being held
accountable for dishonorable conduct, the ``corrosive effect'' is
devastating on the good order and discipline of the Armed Forces.
President Theodore Roosevelt, who served as Assistant Secretary of
the Navy, leader of the ``Rough Riders'' in the Spanish-American War of
1898, as Vice President, and then as President and Commander in Chief,
said this about American national greatness and leadership:
The stream will not permanently rise higher than the main
source; and the main source of national power and national
greatness is found in the average citizenship of the nation.
Therefore it behooves us to do our best to see that the
standard of the average citizen is kept high; and the average
cannot be kept high unless the standard of the leaders is very
much higher.
Congress is responsible for setting these ``very much higher''
standards of leadership for the U.S. Armed Services. Section 8 of
Article I empowers Congress to ``make Rules for the Government and
Regulation of the land and naval Forces.'' Congress is also responsible
for holding the Commander in Chief accountable for ``high Crimes and
Misdemeanors.''
Technical legal arguments that the Uniform Code of Military Justice
may not apply to the Commander in Chief miss the point. At issue are
some of the first principles upon which our colonial forefathers
pledged their ``sacred honor.''
The First Article of the 1775 ``Rules for the Regulation of the
Navy of the United Colonies of North-America,'' which is still public
law (10 U.S.C. 5947), mandates that: ``All commanding officers and
others in authority in the naval service are required to show in
themselves a good example of virtue, honor, patriotism, and
subordination; . . . to guard against and suppress all dissolute and
immoral practices, and to correct, according to the laws and
regulations of the Navy, all persons who are guilty of them.''
Likewise, the current congressional mandate that all commissioned
officers comport to a higher standard of personal behavior--both on and
off duty--traces to the 1775 ``American Articles of War,'' which
forbade officers from ``behaving in a scandalous, infamous manner,''
and required that any officer found guilty ``of any fraud . . . be ipso
facto cashiered, and deemed unfit for further service as an officer.''
A crisis of military discipline looms if any commander, by his
words and actions, promotes an adage that ``you can engage in whatever
behavior you get away with, and even if you're caught, it's OK to evade
accountability if you can get away with that''; a constitutional crisis
looms if Congress does not hold all officers with full responsibility
to a standard of full accountability. Responsibility without
accountability ``according to law'' undermines the core foundation of
the Constitution, the principle known as the Rule of Law (as opposed to
the rule of men), without which our Constitution is no more than a
piece of paper. By definition, the Rule of Law cannot be influenced by
public opinion, whether through public opinion polls or otherwise.
The U.S. Armed Forces now have a more fundamental challenge to
leadership training than simply instilling character traits adverse to
lying, cheating, and stealing: How do we instill in young leaders the
moral courage to admit when they are wrong and to accept accountability
for poor choices? Personal example by senior leaders, up to and
including the Commander in Chief, is an essential starting point--and
risk to personal ambitions is no excuse for any officer of the U.S.
Armed Forces to fail in this regard.
I urge Congress to consider the high standards of personal conduct
it has set for leaders of the American military, and to hold the
Commander in Chief accountable to at least those standards--for the
good order and discipline of the U.S. Armed Forces and for the survival
of the American Rule of Law.
Mr. Buyer. I note that Admiral Moorer, the former Chairman
of the Joint Chiefs, wrote, ``The President is the Commander in
Chief. Although he does not wear a military uniform, he is a
military leader.'' He also goes on to say, ``I urge Congress to
hold the Commander in Chief accountable not only for the good
order and discipline of the U.S. Armed Forces, but also more
fundamentally for the survival of the American rule of law.
When a military leader chooses to engage''--I suppose when he
said ``military leader,'' he is also meaning the Commander in
Chief. ``When a military leader chooses to engage in
dishonorable conduct, he should either resign or is removed
from any position of responsibility, i.e. cashiered by those to
whom he is accountable.'' He goes on to say, ``When troops know
a leader is not being held accountable for dishonorable
conduct, the coercive effect is devastating on the good order
and discipline of the Armed Forces.''
I have some questions I would like to ask of you, Admiral
and General, and I appreciate your testimony here and your
candor. You have made a contribution.
Admiral, at the Naval Academy--and these would be yes or no
questions--at the Naval Academy, do midshipmen learn that the
President is the Commander in Chief of the military and that
the President's picture is present on every ship stationed
throughout the military in that capacity of the chain of
command?
Mr. Edney. That is correct.
Mr. Buyer. Admiral, do you agree that integrity, honesty
and ethics are required traits of a military leader?
Mr. Edney. That is correct.
Mr. Buyer. Admiral, as the ethics professor at the Naval
Academy, do you teach your midshipmen that they must have a
strong moral character in order to be an effective military
leader?
Mr. Edney. That is correct.
Mr. Buyer. Admiral, is it for that reason that the Naval
Academy and all the service academies, to include the service
of the military colleges, have honor codes that state
individuals in essence will not lie, cheat or steal, nor
tolerate those who do?
Mr. Edney. That is correct. We have a different toleration
clause, but the purpose is the same in our concept that the
Academy says you must identify all truth, act on the truth and
do what is right. But you are right.
Mr. Buyer. Admiral, do you also teach the midshipmen at the
Naval Academy that good leaders must set the example for the
sailors and marines under their command?
Mr. Edney. That is correct.
Mr. Buyer. Admiral, would you say that it is essential that
those sailors and marines trust those in the chain of command
in order for a unit to be effective?
Mr. Edney. That is correct. Trust and confidence is earned.
But you are right.
Mr. Buyer. It is earned. Isn't it also true, though, that
trust and confidence is reposed in the commission that is
granted unto an officer by the President of the United States?
Mr. Edney. That is correct. It is in the oath of office.
Mr. Buyer. It is reposed.
Mr. Edney. It is reposed. That is correct.
Mr. Buyer. General, would you agree with that?
Mr. Carney. The President reposes special trust and
confidence in the patriotism, valor and fidelity of the officer
he is commissioning.
Mr. Buyer. So the President does that in the commissioning
oath. So he grants that repose authority under the
commissioning?
Mr. Carney. That is true.
Mr. Buyer. So it comes from the President as the Commander
in Chief?
Mr. Carney. Correct.
Mr. Buyer. General Carney, is it not true that those at the
top of the chain of command, in particular commanders, set the
tone of the military organization?
Mr. Carney. Yes, sir.
Mr. Buyer. General, is it true that if the commander sets a
poor example, there is a detrimental effect on the morale and
discipline of the force?
Mr. Carney. Yes, sir.
Mr. Buyer. Regardless of the size of that force, whether it
is a division commander all the way down to a platoon
commander?
Mr. Carney. The lower the commander, the more visible is
the impact, but high-level commanders are also impactful.
Mr. Buyer. General, would you say that it would be
devastating to a unit's morale if the commander disciplined an
individual for an action that the commander himself was accused
of?
Mr. Carney. Yes, sir.
Mr. Buyer. General, although the President is not a member
of the armed services, do the President's actions constitute
the appearance of a double standard between the Commander in
Chief and his military forces?
Mr. Carney. The President is held accountable to the
Constitution and to the very difficult challenges which you
face to remove him by the law of impeachment. That is different
than the law that Congress gave the military in the form of the
Uniform Code of Military Justice.
Mr. Hyde. The gentleman's time has expired.
The gentleman from New Jersey Mr. Rothman.
Mr. Rothman. Thank you, Mr. Chairman, and I appreciate the
answer of the last witness. It is a constitutional decision
that we have to make here on the Judiciary Committee whether
the President committed an act of treason, bribery or other
high crime or misdemeanor; not whether the President's behavior
was deceitful, wrongful, immoral, but whether he engaged in
treason, bribery or other high crimes and misdemeanors.
Some have talked about our upholding the rule of law.
Throughout my lifetime--as an adult lawyer and a former
Surrogate Court judge, I believe in the rule of law. But this
President will not get any double standard. He can always be
sued criminally for his conduct. So that would uphold the rule
of law and show that the President is not above any other
American. He can be prosecuted criminally and held criminally
responsible for his conduct.
I am the father of two kids, and I tell my kids that lying
violates the Ten Commandments. Adultery by the President
violated the Ten Commandments. It is wrong, it is morally
wrong, and I have said publicly it should be condemned. It was
wrong when the President waved his finger and didn't tell the
truth about his relationship with Ms. Lewinsky, and he should
be punished, let alone for his having an affair with an intern
in the White House. So he can be censured, rebuked, reprimanded
for his not telling the truth to the American people, and we
can teach our kids that lying has negative consequences, and we
can uphold the rule of law.
What we have to decide, though, is whether the President,
according to Mr. Starr, committed perjury, obstruction of
justice or abuse of power. That is our job. Now, the charges by
Mr. Starr, he talked about them, he wrote us a 450-page report,
17 boxes of information, and gave a speech before us for 2\1/2\
hours. The President's counsel responded with two rebuttals. So
we have the prosecutor, if you will, giving his opening
statement twice, in writing and orally, and then we had the
President's counsel filing two written responses addressing
every one of the charges of perjury, obstruction of justice, or
abuse of power.
So how do we decide who is telling the truth? How do we
decide where is the clear and convincing evidence that one side
is right or not? Who bears the burden of proof? I always
thought as an American familiar with our notion of fairness and
due process, it was the prosecution that bore the burden of
proof, to prove before the defendant had to defend and prove
his or her innocence, if you will.
Professor Dershowitz, you say that there was no perjury
before the grand jury. Why do you feel that the President did
not commit perjury before the grand jury?
Mr. Dershowitz. Perjury is a very technical and difficult
offense to prove, and it ought to be. The difference between
the rule of law and the rule of human beings is precisely the
technicalities of the rules. The President was advised by an
excellent lawyer, David Kendall. At this point, unlike in the
previous situation, he told his attorney everything presumably.
There were no secrets, and the answers were carefully crafted.
I have looked at the answers. They seem at certain points to be
less than completely and totally forthcoming, and the President
acknowledged that he was not going to be forthcoming about the
details and specifics of his sexual conduct.
Mr. Rothman. Why isn't it perjury?
Mr. Dershowitz. Because it was not literally false, at
least not literally false in any way that I have seen evidence
to demonstrate beyond a reasonable doubt.
Mr. Rothman. Professor, if I may, now we have got a
distinguished legal scholar saying there was no perjury, we
have got Mr. Starr making charges, the President's lawyer
responding, everything in writing. We don't have a single
solitary fact witness upon whom Mr. Starr relied in making his
case. Not a single solitary fact witness has been brought
before this committee, and we are left with dueling papers and
professors, the majority of whom say either don't impeach or
there was no perjury, or if there was perjury, perhaps it is
too much to threaten the security of the Nation to have an
impeachment. So who bears the burden of proof?
Mr. Dershowitz. I think on impeachment there is a very
heavy burden on the proponents of impeachment. It is not like
indictment.
And there is another thing that is very wrong. You hear
from people both on this committee and elsewhere that the
President has acknowledged this, has conceded this. I heard
today the President admitted he lied. I challenge anybody to
find any statement where the President concedes he lied. Indeed
that is one of the criticisms made of the President, that he
never conceded he lied. One cannot take this case as a nolo
contendere or on the pleadings take every statement made by the
President and his lawyers and say, aha, there is a concession
of impeachable conduct.
Mr. Rothman. In the Kendall report, Kendall refutes every
single charge by Mr. Starr, so I don't see how there could be
an admission. I for one am looking forward to finding out what
the truth is. Since I have heard from all the lawyers, I want
to hear from witnesses.
Mr. Hyde. The gentleman's time has expired.
Mr. Chabot. Mr. Chabot, would you defer questioning?
Mr. Chabot. I would be happy to.
Mr. Hyde. Would you think--try to think maybe over the
dinner hour how you can mislead without lying? Maybe body
language. Anyway, thank you.
Mr. Chabot. Thank you, Mr. Chairman. The gentleman from
Wisconsin----
Mr. Rothman. Point of inquiry, Mr. Chairman.
Mr. Chabot. Let me finish.
Mr. Rothman. Were you addressing the question to one of the
panelists?
Mr. Hyde. To Mr. Chabot. I do that occasionally. We talk.
Mr. Rothman. Because I thought if you were asking the
panelists, you would give them the opportunity to respond. Mr.
Chairman, I thought if you were addressing the panelists, you
would give them an opportunity to respond.
Mr. Chabot. I assume we will be getting the full 5 minutes,
Mr. Chairman?
Mr. Hyde. Yes.
Mr. Chabot. Thank you, Mr. Chairman.
The gentleman from Wisconsin, and he is not with us now,
but early on he mentioned something to the effect that he
thought the President had carried on behavior which was
inappropriate and deserved to be punished, but not necessarily
impeached, because he said that impeachment, if it went over to
the Senate, would drag out for a year, and the country couldn't
stand that turmoil, or something to that effect.
And that is exactly what they said about this committee.
They said if we took this up, we had to limit the scope of this
impeachment, the matters that we took up, and also the time,
because they said this would drag on for a year or perhaps even
2 years. The Chairman was determined not to let that happen, to
move forward in an expeditious manner, which we have done, and
it is quite likely that this matter will be wrapped up this
year.
I think that if the Senate carried this forward in an
appropriate and expeditious manner, they could wrap it up one
way or the other in a relatively short period of time. So I
don't think this would necessarily drag on for a year or 2
years as some have alleged.
In addition to that, there are many, particularly on the
other side of the aisle and a few on ours, although not on this
committee, I don't think, that are looking for censure as a way
out. They believe that the President should be punished, but
they don't think that he should be impeached or removed from
office. As we all know, constitutionally if the House
impeaches, it goes to the Senate, and they ultimately don't
have to remove the President from office. That is for the
Senate to determine.
A lot of folks look at the polls. I don't look at the
polls, but a lot of folks do look at the polls. They say that
the public doesn't want this President to be impeached,
although they do want him to be punished. Now, if the President
is impeached and not removed from office, that will certainly
be a mark on his record and one justifiably received, assuming
that the facts alleged against this President are true. So I
think moving toward censure at this juncture is inappropriate
and not for the House to determine. If the Senate wants to
consider censure, then that is up to them to determine.
We have also heard it said by a panelist this afternoon, in
fact a couple of panelists, that perjury happens in courtrooms
all the time, police commit perjury. It has been compared to a
traffic offense. It was also said that people are never really
charged or punished in this country for the type of perjury
that the President allegedly carried out. Yet we had two women
before us this morning on an earlier panel who clearly showed
that perjury oftentimes is punished, and punished very severely
in this country. Those two women certainly were. In addition to
that, there are 113 other Americans who are behind bars or on
some sort of home release or whatever, but being punished by
the Federal courts because they committed perjury--they
committed perjury in a Federal courtroom. And we have thousands
of people in this country who are suffering criminal penalties
because they committed perjury in a State courtroom. So people
are punished for it.
I wanted to--Judge Tjoflat is now gone for the day, I
assume. Let me shift over to General Carney and Admiral Edney,
if I could ask you a quick question here.
At one point in the Jones case, the President had argued
that he was immune from suit because he was Commander in Chief
and should in effect be considered an Active Duty officer and
should not be subject to suit at that time. If that particular
argument had carried the day and the President were now subject
to the Military Code of Justice, what types of penalties could
he face for the charges of perjury or adultery or obstruction
of justice? Either the admiral or the general?
General Carney. The Uniform Code of Military Justice, for
which he is not subject, has a perjury article and a false
official statement article, and it has what is called a general
article, 133, conduct unbecoming an officer, from which an
officer will be charged with lying whether it is under oath or
not. So there would be a number--if I were in the similar
situation and, say, commanding the 82nd Airborne Division,
there would probably be five specifications to the various
charges against me.
Mr. Chabot. Thank you, General.
Mr. Hyde. The gentleman's time has expired.
The gentleman from North Carolina----
Mr. Chabot. I think the admiral also, Mr. Chairman----
Mr. Hyde. I am sorry, Admiral.
Mr. Edney. I just wanted to make the point, first of all, I
don't agree that you can make that assumption, that the
President is under a different law and he doesn't come under
UCMJ, but when you come under UCMJ, because of the importance
of command and trust and confidence in command, the first act
under UCMJ is to remove the officer from the position of
command because you have lost that trust and confidence,
because you cannot leave that person suspect out there in
command. Then you do the investigation.
So the process is totally different, and the requirement
for speed and action to maintain trust and confidence is
essential to the military. That is why we act the way we do.
Mr. Hyde. The gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. I will start by just
assuring all the witnesses that I am not being punished by
going last on this side. And the Chairman is not punishing me.
It was actually at my request that I went last. For those who
might be worried, I wanted to make sure that the Chairman got
the benefit of that, also.
I actually had intended to ask a couple of questions to
Judge Tjoflat, but since he has left, perhaps I can ask these
questions to Judge Higginbotham and Mr. Rosen.
Is there a difference between lying under oath and perjury?
Mr. Higginbotham. Yes.
Mr. Watt. If so, could you tell me what that difference is?
Mr. Higginbotham. It is my recollection that Congress
amended the statute because they thought that there were some
issues which were not incorporated in the perjury standard. I
would be pleased to send you a note on it. But for an
impeachment proceeding, unless you tell me that someone was
lying and did not take the oath, it would not make a difference
whether it would be lying under oath or perjury in terms of
your making a judgment on impeachment.
Mr. Watt. Mr. Rosen.
Mr. Rosen. There is a clear difference between lying under
oath and perjury. All sorts of things that all of us would
acknowledge are lies don't rise to the level of perjury unless
they are both intentional and material. And the President
claims in regard to all of the allegations against him that
although he may have engaged in what we might call a lie or we
might call a misstatement, none of his lies rise to the
technical level of perjury because they were not intentional;
that is to say, he believed they were true when he told them,
and they were not material to the cases at hand.
Mr. Watt. Let me go to the second part of that, not the
knowledge that he was lying, but the materiality of the
misstatement. Can you tell me a little bit about what
materiality means in the definition of perjury?
Mr. Rosen. Materiality means that the lie had to have been
important enough that there was some possibility that it had a
chance of affecting the proceeding in which it was told. That
is to say, an irrelevant lie, a question that was asked about
some embarrassing matter that couldn't possibly have affected
the proceeding, wouldn't have been material.
Reasonable people can certainly disagree about whether the
misstatement or lie told in the Jones deposition was or was not
material. The judge, when she ruled the evidence inadmissible,
said it didn't go to the core issue of the case. At the same
time she did say that it might be relevant. So one could argue
the case either way.
It is important, though, to stress that in convicting
people of perjury, jurors tend to give people the benefit of
the doubt and don't convict in close cases where the
materiality is open to question.
Mr. Watt. Thank you, Mr. Chairman. I yield back the balance
of my time.
Mr. Hyde. I thank the gentleman.
The gentleman from Georgia, Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Chairman, I have been taking some time this afternoon
during some of the other questioning and testimony and
refreshing my recollection, which in this instance is
remarkably good, of certain provisions of the U.S. Criminal
Code, title 18. I have looked over the various provisions on
obstruction, false declarations before a grand jury, perjury,
and frankly, Mr. Chairman, I don't find any gradations there. I
don't find any context there. I find Federal criminal statutes
that the American public and the two witnesses here earlier
today who have been convicted of those offenses understand a
lot better than some of the folks on this panel.
When I first heard from this panel, other than beginning
with Judge Tjoflat, I was somewhat depressed, because what we
seem to be hearing from many of the witnesses is perjury may be
perjury, obstruction may be obstruction, but you have to look
at the context. You have to look at whether it was really a
serious offense. You have to look at whether or not a person
won an election by 49.3 percent or 49.2 to determine whether or
not it is really--that was one of the points, Professor
Dershowitz, that was made by one of the other witnesses. They
harkened back to the percentage by which the President had won
the election, not a majority, but a plurality, as if that
apparently figures in whether or not it is impeachable to
commit perjury or not.
But I am not depressed, Mr. Chairman, and the reason I am
not depressed is there really are, I think, two Americas, and
there is a real America out there, and I think our military
witnesses understand that, and the two witnesses earlier today
understood that, and Judge Tjoflat understands that. It is that
America that I have great faith in, because it is that America
that understands what perjury is. It is that America that
understands that there are not gradations of perjury when we
are talking about the President of the United States of America
going before a Federal judge or a Federal grand jury. They
understand, for example, that indeed, as reflected in the
sentencing guidelines themselves, it is indeed more serious for
sentencing purposes if you have a person in a position of
public trust than if you have an average citizen. Now, some on
this panel may argue that the President is not in a position of
public trust. I think that clearly the sentencing guidelines
contemplate that.
And here again, the American public, the real America out
there, understands that there ought to be a very high standard
for our public officials. The same America out there that
understood when I was called upon as a U.S. attorney to
prosecute a sitting Republican Member of Congress who served on
this very panel back in the 1980's for doing precisely what the
President of the United States now has done, and that is to
impede, obstruct and lie before a Federal grand jury, I
prosecuted him, because down in Georgia, in the Northern
District of Georgia, we understand that there are not
gradations of perjury, there are not gradations of obstruction
of justice, there are not gradations in contextual concerns
that come into play whether or not to prosecute a Member of
Congress or the President of the United States for committing
those acts.
Also the reason I am not depressed, Mr. Chairman, is in the
real world out there, people understand the Constitution, and
they understand--not like some of our law professors today--
they understand that the primary focus of the Constitution as
given to us by our Founding Fathers for abuse of office, which
is not so vague a term as to be unintelligible to any President
despite some of the testimony here today, they understand that
the way the Constitution is crafted, the primary mechanism for
dealing with abuse of office is impeachment. It is not
prosecution for a criminal offense. That is precisely why the
first point at which abuse of office by a President and a Vice
President and other high officials comes up is in the context
of impeachment, and then the Constitution goes on to provide
that that shall not prohibit essentially prosecution.
So despite the fact that some of our law professors here
today think that this matter should all be handled by the
courts, and the Constitution should just be shoved aside, real
America understands that the Constitution is there for a
reason, that it does mean something, the same as our title 18
of the Criminal Code means something in terms of defining with
tremendous clarity perjury, obstruction of justice and
tampering with and interfering with the work of a grand jury.
Mr. Chairman, even though at the beginning of this panel I
was somewhat depressed at what we were hearing, I am heartened
by the fact that I don't think these views represent the
clarity and the rationality and the common sense with which the
real America views these matters.
Mr. Dershowitz. May I respond 30 seconds to what I perceive
to have been a personal attack? First of all, whenever I hear
the word ``real Americans,'' that sounds to me like a code word
for racism, a code word for bigotry and a code word for anti-
Semitism.
Mr. Barr. That is absurd. He ought to be ashamed. That is
the silliest thing I have ever heard.
Mr. Dershowitz. When I hear you describe me as something
other than a real American, shame on you. We may have a
disagreement about the merits of these issues, but I would no
more impugn your Americanism than you should impugn mine, sir.
Mr. Barr. You are being silly, Professor. You are being
absolutely silly.
Mr. Higginbotham. May I respond, Mr. Chairman?
Mr. Hyde. Yes, indeed. Far be it from me to not have anyone
respond. Go right ahead.
Mr. Higginbotham. I take profound disagreement with
Congressman Barr's categorization of the real America, which he
apparently understands with such fine discernment, and to which
those of us who teach at universities are oblivious. You know,
we have students, and they teach us something. My father was a
laborer. My mother was a domestic. And I climbed up the ladder.
And I did not come to where I am through some magical wand, so
that I am willing to match you any hour any day in terms of the
perception of the real America.
Now, let me put this in perspective, because I cited some
statistics, and apparently that is not relevant to the real
America. On page 7, I gave the fact that President Clinton got
379 electoral votes and 47,401,054 popular votes. I cited that
because when you do an impeachment, when you do an impeachment,
you remove someone, Congressman Barr, who got elected by the
real America. And it is the pernicious consequences on which
that could happen.
Let me give you an example as a Federal judge. In the Sixth
Circuit, Tennessee, Michigan, Ohio, Kentucky, from the day when
President Reagan got in to President Bush's last day, there was
never one African American appointed to those courts. And
before them President Carter appointed blacks; after them
President Clinton appointed blacks. Now, when you remove a
President, you will be removing someone who may have some
values which are as important as what you call perjury, and
that is pluralism, the opportunity for people who are black to
get into the system. There is still conflict whether some
people accept what Roger Brooks Taney said in the Dred Scott
case, that a black man had no rights which the white was bound
to respect. That was values, and that was a real America. But
Justice McLean and Justice Curtis dissented, so that we have in
this country, when Dred Scott was decided, when Plessy was
decided and in recent cases, a profound division in terms of
pluralism and inclusion. And I think that there is a real
America which President Clinton took in terms of fairness, and
I would be delighted to debate this issue with you in far
greater detail.
Mr. Hyde. Does the gentleman from Georgia wish 2 minutes to
respond?
Mr. Barr. Thank you, Mr. Chairman.
My point would be, you know, all of that is fine and good.
It is utterly irrelevant, the same as the silliness that
Professor Dershowitz thinks that talking about a real America
in terms of understanding certain concepts of the law, the
Constitution, military discipline, he thinks that, what was it,
a racial issue or something, I don't know, it was so silly.
Mr. Dershowitz. A code word.
Mr. Barr. But I think my concern, Mr. Chairman, is when we
bring these sorts of things up and say simply because we have a
President that we might remove from office for violating his
oath of office or otherwise committing high crimes and
misdemeanors, simply because of certain policies, then we get
into constitutional and legal relativism that I would certainly
think that a learned member of the bar and former member of the
Federal judiciary would not stray into. Using as an excuse for
not upholding the rule of law or the constitutional standards
that we have simply because we have a President that might do
certain things politically that we like I think is a very, very
slippery slope, Mr. Chairman, and I thank you for letting me go
into that.
Mr. Hyde. The gentleman from Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman.
I would just like to ask some short questions of General
Carney, if I could, and then give the remainder of my time to
Professor Dershowitz if he chooses to respond to the Chairman's
question of Mr. Chabot.
General, I find as a part of this debate not just today,
but the ongoing debate over the last year, the issue of morale
in the military. While it may not be directly related to
impeachment or directly related to the issues that this
committee concerns itself with, I find that to be one of the
most concerning issues, and the allegations that some make that
the President's conduct has in some way, significant or
otherwise, lowered the morale in the military. My experience in
terms of speaking with people in the military in Florida, when
you get right down to it, if there is, in fact, a morale
problem, it seems to me from my conversations to stem more from
budgetary shortfalls, more from a perceived--and I would
agree--a perceived lack of increases in pay, things that really
matter to the members of the military more than a specific
reference to the behavior of the President.
I was wondering, one, if you might comment on that, and,
two, what I also hear from admittedly junior officers and the
enlisted personnel in terms of this portrayed double standard
of law, what I hear from enlisted personnel regarding the
adultery policy is--and I don't know if this is quantifiably
correct, but they certainly seem to suggest, at least a number
of them that I have talked to, that there is a double standard;
that the court-martial program is much more quickly used with
respect to enlisted personnel as it is with respect to, and I
think the word is red flag officers.
I was wondering if you might speak to that. How many red
flag officers have been court-martialed for adultery, say, in
the last 40 years? The people in the military that I have
talked to, admittedly, again, not the high officers, but the
personnel people, seem to think there is a double standard.
Mr. Carney. Congressman, I was the deputy chief of staff of
personnel. I never heard the term ``red flag officers.'' But I
do understand your meaning. I am not aware of a double standard
by any stretch of the imagination. What the enlisted people
that you are talking to probably don't understand is what
happens to senior officers is not very well known to them.
Secondly, to your first point, yes, indeed, there is a
morale problem. I know Congressman Buyer knows it well. There
is a 13 to 15 percent gap in military pay. There is a
retirement system change that was voted in in 1986 that
midcareer officers and enlisted soldiers find to be obnoxious.
There is an increase in deployments that have occurred in these
past 6 years in the face of a 40 percent reduction of force
structure, and a whole bunch of other problems.
Now, is there a problem caused by the President's conduct?
I don't have any idea. It would, in my view, be a violation of
Article 88 if the military were to even conceive of taking such
a poll. And so I doubt seriously that anybody can really
respond to what you have said.
Mr. Wexler. Thank you. I appreciate that.
If I could, Mr. Chairman, I would like to give Professor
Dershowitz an opportunity to respond to your earlier question.
Mr. Dershowitz. Chairman Hyde, you asked what the
difference is between perjury and misleading testimony. The
answer is Bronston v. United States.
Mr. Hyde. That isn't what I asked.
Mr. Dershowitz. What was the question?
Mr. Hyde. I asked how you can mislead without lying.
Mr. Dershowitz. How you can mislead without lying?
Mr. Hyde. Yes.
Mr. Dershowitz. The Supreme Court took the following case.
A Mr. Bronston was asked whether or not he has ever had a Swiss
bank account. He responded by misleading, by saying the company
had an account there. In fact, he had an account there.
The Supreme Court said that petitioner's answers were
shrewdly calculated to evade. Yet they were not lies. They were
literally the truth with a clear subjective intent to mislead.
Now, you and I wouldn't deal with our families that way. I
wouldn't deal with my students that way. It is wrong to do it
that way. But the difference between lying and perjury is
whether or not something is a literal truth. A misleading
literal truth is not perjury. The President acknowledged in his
testimony that he intended to deny information to the Paula
Jones lawyers, but he did not intend to commit perjury.
Mr. Hyde. I am not talking to upbraid you. He says he
misled people, but he didn't lie.
Mr. Dershowitz. That is right.
Mr. Hyde. I am having trouble reconciling how you mislead
without lying.
Mr. Dershowitz. If you tell a literal truth that you
understand will mislead, that is misleading without literally
lying.
Mr. Hyde. I can see that if you want to soften it around
the edges, but the person who continues to evade telling you
the whole truth and nothing but the truth I would call a liar.
Mr. Dershowitz. I think that is a fair assessment. I think
it is a fair appraisal to say in colloquial talk a person who
continually misleads is somebody that we would generally regard
as a liar. But there is a difference between moral talk and
legal talk, and that is the difference between the rule of law
and the rule of people. Under the rule of law, that does not
constitute technical lying. It does not constitute the crime of
perjury.
Mr. Hyde. Thank you.
Who is next? Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman.
Professor Dershowitz, if I understand your testimony, you
have concluded that if the President lied under oath in the
Paula Jones deposition, that would not be an impeachable
offense. Is that correct?
Mr. Dershowitz. That is right.
Mr. Hutchinson. These aren't complicated questions. They
aren't trick questions. But then you got to the grand jury
testimony. I believe you concluded in your judgment that he did
not commit perjury----
Mr. Dershowitz. That is right.
Mr. Hutchinson [continuing]. In the grand jury testimony.
But if one were to conclude that the President committed
perjury in the grand jury testimony, would you agree that it is
a fair consideration and a fair debate as to whether that rises
to the level of an impeachable offense?
Mr. Dershowitz. I think that is a very fair question. I
think reasonable people could disagree about that if the
origins of it were an attempt to prevent embarrassing questions
from coming up. I think if you had a President that clearly sat
down and made a deliberate, calculated decision to try to
commit perjury to a grand jury that was investigating his
criminal conduct, you could reasonably include that within the
category of impeachable offenses.
Mr. Hutchinson. Thank you, Professor. I appreciate that.
And I think that is consistent with the essays that you wrote
contemporaneously and really preceding the President's grand
jury testimony. You along with others were sounding alarms to
the President, ``Make sure you tell the truth.''
Mr. Dershowitz. No, no, make sure you don't commit perjury
is what we said. I obviously would have preferred for him to
tell the truth, the whole truth.
Mr. Hutchinson. I just want to read some of the language
that you used at the time in July of 1998. You stated that his
testimony promises to be the single most important act in his
Presidency. He must tell the truth, whatever the truth may be.
Mr. Dershowitz. That is right.
Mr. Hutchinson. And then continuing on, you also wrote in
August of 1998, again preceding the President's testimony
before the grand jury, that there is nothing the President had
done so far, that would get him impeached because it all
occurred in the context of a civil suit that has been
dismissed. But if he were now to deny any sexual involvement
with Lewinsky during his grand jury testimony, and if that
testimony were to be proved false, you remember what you said
then?
Mr. Dershowitz. He would be impeached.
Mr. Hutchinson. You said, he might well lose his
Presidency.
Mr. Dershowitz. And I think if, in fact, he had denied any
sexual contact with Monica Lewinsky at that point and the DNA
evidence had then come forth afterward and proved that he was
categorically lying about something which was then the subject
of a grand jury investigation, and lied in so dramatic a way,
yes, I agree with that. But he didn't do that.
Mr. Hutchinson. Reclaiming the time, I think your testimony
is that if he perjured himself before the grand jury, that
might well constitute an impeachable offense.
Let me move on to Professor Rosen. You talked about the
criminal sanction. A number of people have made the point that
the President could face sanctions and accountability because
he is subject to criminal prosecution. Is this really something
that you think is an option? First of all, would it not be the
independent counsel, Kenneth Starr, that would pursue a
prosecution of the President of the United States for perjury?
Mr. Rosen. It might well be. The independent counsel has
shown an imperviousness to public opinion before, so it is
quite conceivable that he might bring a perjury prosecution if
you decide not to impeach.
Mr. Hutchinson. But it is his call. What you are saying and
others are saying, Mr. Rosen, is that the President should be
punished. If we really want accountability, what are the best
odds here? What is best for the country? Should he be punished
by Kenneth Starr, waiting 2 years for him to be prosecuted
until the year 2001? Or is it better for the Congress of the
United States to deal with this issue now?
Mr. Rosen. Congressman, the crucial question, the wonderful
question that you have posed to the country in these hearings
is how can we subject the President of the United States to the
same rule of law that was imposed on those witnesses that we
heard from this morning? The answer is the ordinary rule of
law. It should be up to a prosecutor, like Kenneth Starr, to
decide to prosecute or not, and he would be subject to the same
constraints of prosecutorial discretion.
Mr. Hutchinson. Which is really an escape hatch because as
Professor Dershowitz said, he will not be indicted after he
leaves office.
That is your opinion, is it not, Professor?
Mr. Dershowitz. Absolutely.
Mr. Hutchinson. And is that your opinion, Professor Rosen?
Mr. Rosen. It is not my opinion. I would not presume to
predict the calculations of the independent counsel Kenneth
Starr, who might well indict the President.
Mr. Hutchinson. I think everybody in the country would say
that we punted on this issue, it was a punt on third down, if
we do not deal with the issue that is before this committee.
Mr. Hyde. The gentleman's time has expired.
The gentleman from Indiana, Mr. Pease.
Mr. Pease. Thank you, Mr. Chairman.
I find myself, as I often do at the end of the day, with
all of the things that I intended to ask having been addressed
by those who are brighter than I. I do want to thank the
witnesses for being with us. I do want to express my regret
that at times there were personal statements made by both
members of this committee and by members of the panel. I find
that unfortunate. But I am grateful for the information that
was provided, the expertise that was shared and the time that
you spent with us.
Having said that, I want to yield the balance of my time to
my colleague from Indiana Mr. Buyer.
Mr. Buyer. I thank the gentleman for yielding to me.
I wear another hat here in Congress. I chair the Military
Personnel Subcommittee of the National Security Committee. And,
General Carney, that is where you and I have had a good working
relationship. I appreciate your candor here today.
The message of military personnel is, I believe, that they
do look to the Commander in Chief to set the high standard of
moral and ethical behavior. They look all the way up that chain
of command to the President as Commander in Chief. And the
military--I think it is proper for the American people to
demand of the military the highest standard and to lead by
example. Adherence to high moral standards is the fabric of
good order and discipline. Both of you have testified to that
today, and I concur with you. When military leaders, to include
the Commander in Chief, fall short of this idea, then there is
confusion and disruption in the ranks. And today many do see a
double standard.
I am out there. I have been with the Marines. I have been
with the Third Fleet before they sailed. There is a disruption.
There is confusion. But the great thing is, the message I can
say to America is that we have a professional military, and we
do have an adherence to civilian control. And, General Carney,
I agree with your answer to Mr. Wexler. They are professional,
and they will respond, and they are the greatest military in
the world.
And it is very difficult for us to measure this issue about
morale. I think Mr. Wexler asked very good questions about
morale, because it is multifaceted at the moment, but it would
be wrong for us not to ask that difficult question about what
is the impact on the force, is it detrimental, what is its
impact upon readiness when the force is disgruntled when the
Commander in Chief is then held to a different standard or a
lower standard than that which he demands of his own service.
I want to be informative here to my colleagues about the
issue of exemplary conduct. And that moves to this question
about should the President as Commander in Chief be held to the
same standards of those he leads within the military. You see,
the Founding Fathers were concerned about the ethical standards
of the military leaders. It was John Adams that included in the
first naval regulations language that called for naval officers
to have high moral and ethical standards. Admiral Moorer in his
statement included that reference. This language was codified
for naval officers by Congress in 1956.
When I conducted the review after the Aberdeen sexual
misconduct incidents, I learned so clearly about the importance
of the chain of command because there are those that sought to
weaken the chain of command. And when you look at the
Goldwater-Nickles law, it goes from that lowly recruit all the
way through the Secretary of Defense, the national command
authority, it drops right at the Commander in Chief.
So what did we do? We then said in 1997 if, in fact, the
exemplary conduct language applies to the Navy, then we said
apply it to the Air Force and the Army, and the Congress did
that in 1997, and the President signed that into law. I then
said, you know, but it is not done yet. We then need to say it
applies to the national command authority as set out in law.
That is what we have here. The Navy, Army and Air Force
have exemplary conduct language. What I did is--what this says
is that it calls for the officers to show themselves a good
example of virtue, honor and patriotism, and to subordinate
themselves to those ideals, and to guard against and to put an
end to all dissolute and immoral practices, and to correct all
persons who are guilty of them.
You see, there is frustration and confusion in the
military, because I have traveled to a number of the military
installations both in the United States and overseas. I have
heard the questions from the military personnel on the behavior
of the Commander in Chief. As a Member of Congress and as a
military officer myself, I find these questions disturbing.
The services are recruiting young people across the Nation.
At boot camp they are infusing the young people with moral
values of honor, courage and commitment. They are teaching
self-restraint, discipline and self-sacrifice. Our military
leaders are required to provide a good example to these young
recruits. Yet when they look up the chain of command, they see
a double standard at the top.
That is why I sought to include this exemplary conduct
language to apply to the Secretary of Defense and the
President, who is Commander in Chief. I have no interest in
placing these two civilians under the Uniform Code of Military
Justice. This was included in the defense bill, but the Senate
would not go along with it. So what we have is a sense of the
Congress resolution.
See, the Congress has already spoken on this issue and said
that we believe that the President as Commander in Chief should
be held to this high exemplary conduct language that I read
here.
I thank the gentleman from Indiana for yielding to me on
this point, because the language that we are asking the
President to abide by is very simple, and that is that the
President and the Secretary of Defense are to show themselves a
good example of virtue, honor and patriotism, and to
subordinate themselves to those ideals; to be vigilant in
respecting the conduct of all persons who are placed under
their command; to guard against and put an end to all dissolute
and immoral practices; and to correct, according to laws and
regulations in the Armed Forces, all persons who are guilty of
them; and to take all necessary and proper measures under the
laws, regulations and customs of the Armed Forces to promote,
to safeguard the morale, the physical well-being and the
general welfare of the officers and the enlisted persons under
their command or charge.
It is not in law, but I will come back in the next Congress
to try to make this law so that everyone understands and will
know what standard will everyone be applied to. Thank you.
Mr. Hyde. I thank the gentleman.
The distinguished gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman.
I would like to, first of all, apologize to the panel for
having interrupted on a couple of occasions to try and keep the
5-minute rule at least within the 20-minute parameters.
Mr. Hyde. I accept the chastisement.
Mr. Cannon. It was actually an apology. But we will see
about the next hearing when the Minority has its time again.
Let me just make a couple of points since I had some
questions for the two judges who have left us, Judge Wiggins
and Judge Tjoflat. In the first place let me point out that I
think when we talk about gradations of perjury, we are often
really talking about gradations of proof or evidence. And where
we have clear proof, there should not be much reason not to
proceed in any case of perjury.
Secondly, Mr. Rosen pointed out that we don't know what the
President's state of mind was, he hasn't told us what his
intent was, but let me point out that all perjurers say that
they were not intentionally lying or consciously lying. One of
the remarkable things about our two witnesses earlier today was
after having been caught, after having gone through the
process, they appeared rather repentant.
Now, let me turn to Judge Wiggins' idea of a million-dollar
penalty. That million dollars, of course, is a great deal of
money, and I suppose it is meant there to express something
about the seriousness of the President's perjury. But it occurs
to me that to impose such a penalty either becomes an ex post
facto bill or a bill of attainder on the one hand, both
contrary to the Constitution, or on the other hand the
President comes forward and agrees that that kind of penalty
should be imposed upon him. In doing so, it seems to me breaks
down the barriers between the branches of government. I think
it is a great constitutional sin, and that is why I am deeply
opposed to the idea of censure or censure plus or censure with
pain.
Let me just point out that I have at this time a deep
concern about our constitutional system. As part of that
concern, I have great fear and concern for our military, and so
I appreciate General Carney and Admiral Edney joining us today.
If I might just ask the two of you a few questions.
In the first place, does by his behavior, this President,
pose a danger to our country?
Mr. Carney. No, sir.
Mr. Cannon. Admiral.
Mr. Edney. No. Let me give you a specific. I just got a
direct communication from the Chief of Naval Operations. He
came back with the troops in the Gulf and the marines in the
Gulf telling how highly committed they were.
It goes to what Ms. Lee was talking about. It is not a
single issue. Nobody should mistake that the morale of the
Armed Forces of the United States is such that they will fight,
and they will do their job better than anyone else. What we
have said, which has been a little bit, is that all of this
collectively, you are seeing indications in the American Armed
Forces through recruitment and retention that says morale is
not as high as it should be, and there are multiple factors,
one of which is immeasurable but is out there, this conflict
that Congressman Buyer was talking about.
Mr. Cannon. Thank you. You actually answered really to the
core of what I am concerned about. You have a large turnover
every year, about a fifth or a quarter. If I understood,
General, what you said earlier, 500,000 people need to be
recruited per year. Over the next couple of years that means we
are going to recruit 500,000, a million people. Do we have
difficulty inculcating into those new recruits the value system
when morale is a problem?
Mr. Carney. We have all the time. They come from a variety
of walks of life. The Army, for example, just added 1 full week
of basic training, moving from 8 to 9 in order to free up some
time to do, among other things, the inculcation of our value
system and those seven Army values that I discussed.
Now--and the people who are not joining us because of this
controversy, I have no idea. I suspect that there are some--
there are bigger issues right now in the employment position
that causes recruiting difficulties in the services.
Mr. Cannon. You mentioned the controversy. I take it you
mean the President's conduct.
Mr. Carney. Yes, sir.
Mr. Edney. Let me say, sir, that the issue is much more
complex. We have been charged by the Congress to do a very
difficult thing, and that is the total integration of men and
women in our military who must live in very confined spaces
while conducting very difficult missions with young 18- to 23-
year-olds. And so the standards are understood. What we are
talking about is the growth and maturity of these young
Americans under difficult living conditions. Of them I don't
want anyone to think it is easy, and the challenge on the
commanding officers out there is an extremely challenging one.
So it is much broader than the one individual.
Mr. Cannon. But in a very difficult environment, I take it
from the thrust of your testimony that the President's actions
have made that more difficult?
Mr. Carney. It has not helped. Yes, that is correct.
Mr. Cannon. Thank you, Mr. Chairman. I yield back the
balance of my time.
Mr. Hyde. I thank the gentleman.
The gentleman from California, Mr. Rogan.
Mr. Rogan. Thank you, Mr. Chairman.
First, I want to commend all of the remaining members of
our panel for their staying power, and I want to express to
each and every one of you my profound appreciation and respect
for all of your presentations and for what you have brought to
this particular committee.
I guess, in fairness, Professor Dershowitz, I have to
single you out just for one moment, because I want to assure
you that we have no hard feelings. I know that you raised a few
hackles here with some of my Republican colleagues with
controversial comments about their motivations, but I want you
to know that I personally found them to be very therapeutic.
Because up until you made that observation, the only reason I
had for not having attended Harvard was my grade point average.
[Laughter.]
A couple of observations, if I may. I have to be candid. I
was a little taken aback today by the constant references to
Defense Secretary Weinberger, and I noted in all seriousness,
Professor Dershowitz, your comment that if the committee was
actually serious about pursuing perjury issues, we would be
looking at the potential perjury of Defense Secretary
Weinberger. I don't know if that was offered more for
rhetorical flourish, but I will confess to you that I am
certainly not an expert on that subject. I was not a Member of
Congress at the time.
I do know that the President of the United States, for
right or for wrong, has the constitutional power to pardon an
individual, and I don't think there would be any argument on
that fact. I also know that a President has no constitutional
prerogative to commit perjury.
What I found interesting about the Weinberger suggestion
was reviewing the Los Angeles Times article from December 25th,
1992, that reported on Mr. Weinberger's pardon. The Los Angeles
Times interviewed various people about how they felt over Mr.
Weinberger's potential perjury being pardoned by President
Bush. And one of the people they interviewed expressed his
grave concern about that pardon, and when they asked him why,
he said it signaled that if you are a high government official,
then you are above the law.
That quotation was from the President-elect of the United
States, Bill Clinton. And so here we come full circle to this
concept of the rule of law, the defense of which now haunts the
members of this committee night and day.
And I wish I were articulate enough to try to express my
feelings on the subject appropriately. I am not. However, this
very morning in the morning newspaper was a very commendable
commentary by Paul Greenberg. If I may, I want to read a few
passages from it.
He said, ``In the end, the whole great structure of the law
begins to totter when men come to see it not as a guide or
restraint but just as a series of obstacles to evade. Remove
the basis of law, like the search for truth that once made
perjury a serious charge, and any individual law may be got
around, too. Crimes are minimized, and if prosecutors cannot be
ignored, they can always be demonized, one after the other.
Whether they involve campaign contributions or obstruction of
justice, great matters or small, individual laws are got
around, and soon enough, the idea of law itself will be
shrugged off or explained away. No wonder Americans come to
assume that we are ruled by the polls, or the election results,
or the spirit of the times, or the most persuasive
personalities. The rule of law becomes a platitude reserved for
ceremonial occasions, a quaint concept that all repeat, but no
one may believe.''
Mr. Chairman, in closing, that is the idea that troubles me
the most, both as a member of this committee and, more
importantly, as a citizen of this country: destroying the
sanctity of the rule of law. I hope that will not be the legacy
of this Congress, now or ever.
I yield back the balance of my time.
Mr. Hyde. I want to thank the gentleman, and I want to
announce, as we are getting down to our very finest members,
that some day soon we will have a hearing and I will start the
questioning at that end, and that end, but don't hold me to
when that will be, but I will. I will. I pledge I will.
Mr. Lindsey Graham.
Mr. Graham. Thank you, Mr. Chairman.
One thing I have learned is that 5 minutes is not as short
as it seems sometimes, and I will try not to abuse it.
We have an Admiral and a General, an Army and a Navy guy,
right? I don't mean to be disrespectful. I am an Air Force guy.
We are going to read the Air Force Academy Honor Code to you.
We will not lie, steal or cheat nor tolerate among us anyone
who does. Furthermore, our resolve to do my duty honorably, so
help me God.
That is what Air Force Academy folks have to swear to. This
tolerating among us anyone who does, is that true for the Army
and Navy academies?
Mr. Carney. That is true for West Point.
Mr. Edney. The Naval Academy does not have a no toleration
clause.
Mr. Graham. Okay. It seems to me we are saying it is just
as bad to go about it and do nothing as it is to do it
yourself. That seems to be what they are saying. Do you agree
with that concept?
Mr. Edney. That is correct. A no toleration clause does not
allow you to do nothing. It says that there are--each situation
has a series of circumstances, you must evaluate it, but you
must take action.
Mr. Graham. And that is what I am trying to do. I am
trying--I know about it, and I know I can't do nothing, but I
don't know what to do. I have been here all day, and I feel
guilty about suggesting that he tell the truth. Maybe it is my
problem, not his. But I am trying to find a way so that we will
be judged well 30 years from now.
I really believe 25 years after the Richard Nixon case most
people believe he got what he deserved, and I would like to
think that if I had been in Congress then, no offense to the
judge there, that if I had seen everything that transpired, as
a Republican I would have said, you should lose your job,
President Nixon, for covering up things that are probably far
worse than the underlying event. And I am trying to make sure
that I don't impose a standard on the President that is going
to get us in trouble down the road, because he is not a
military officer, per se.
Let me just tell you this: As a junior officer probably in
your command, that if you got stopped by the MP on the base and
you lied about how fast you were going and you were doing 55
and you said you were doing 49, you would lose your job. In
that environment, as a former judge advocate who prosecuted
people and defended people in the military, we really do take
stuff very seriously that would be trivial anywhere else. But I
don't want to put that standard on the President. I just don't
think we need to do that in politics, whether it is right or
wrong.
My problem is I believe in my heart, Professor Dershowitz,
that when you told him, be careful at the grand jury, this is
getting really serious now, that he wasn't careful. And I
really believe in my heart that when he was in the Paula Jones
deposition, that he left the deposition and he went back to his
office and he went to the Secretary and he planted in her mind
several stories he knew to be false. And if I am setting--and I
am a lawyer and I love the law, and I want to go back to the
law, maybe sooner rather than later as long as this thing keeps
going, but it would really bother me as a lawyer to know the
other side was messing with the witnesses and was trying to
hide the evidence to hurt my client. But now I have to judge
whether or not the President should be subject to being
impeached and losing his job for things like that.
History is going to judge us one way or the other. All I
can tell you is I can't articulate, as my friend from
California said, well enough, but I know in my heart it is not
right for me, Lindsey Graham, to believe the President
committed grand jury perjury and not subject him to being able
to lose his job through a trial in the Senate. I know that is
not right for me, based on the way I was brought up and based
on who I am. And I am a sinner, and I have made my fair share
of mistakes. I can live with me, and that is the standard for
all of us at the end of the day.
Now, I have said something today that I could live with. If
the President would do what I think is the right thing, and
that is come forward and admit to the obvious--most people
believe he lied under oath. If he would show the character
traits to admit to what I think is clear from the record, I
would treat him differently, knowing as a lawyer, now, that
might subject him to some consequences down the road.
But I believe in this situation, it is not about me, it is
not about him, but it is about us, and we are political
leaders. We are not military officers. Some would say we have a
higher standard. I don't want to argue with you about that. But
I know this: That the us, Bill Clinton and Lindsey Graham, need
to set a tone that brings out the best in the American people,
for they are basically very good.
And when I said today that I wanted the President to come
forward and do what I think is the right thing, I know there
are some consequences to him, but they are minimal for the good
it would do this Nation. And I appreciate all of you coming
here today. At the end of the day, all your advice will be
welcomed, but we have got to do what we can live with.
Thank you very much, Mr. Chairman.
Mr. Hyde. Thank you, Mr. Graham.
And Mary Bono is our last questioner, and far from our
least questioner. Ms. Bono.
Ms. Bono. Thank you, Mr. Chairman.
I would first like to thank all of the witnesses for
appearing here today, for your insight and certainly most of
all for your patience. As one who speaks last, I know how
patience can be trying at times like this.
But I am particularly interested in the statements of
Admiral Edney and General Carney. I have great respect for the
men and women of our Armed Forces who sacrifice so much to
ensure our freedom.
Admiral Edney mentioned how he spent Thanksgiving with his
grandchildren at the parade. It made me think about my
Thanksgiving, and I had the opportunity to spend it with my
parents. My father was a waistgunner in a B-17. He flew 19
missions over Germany, and I am very proud of that fact.
It made me realize that, I guess, the admiration that I
have not only for him but for all of our service members and
have that instilled in me, the example set by my father. You
know, he has a great sense of commitment, and he dutifully
followed his oath to defend this Nation. I am hopeful my
children will also gain the strong sense of commitment and
honor from him. Sometimes I worry about the mixed message they
are receiving based on the conduct of the President and his
lack of faith to his oath of office and his oath before the
court.
Disillusionment with the President was certainly something
that I was made aware of a great deal a little while ago back
home on Veterans Day. I spent the day at a parade in Palm
Springs, and I was lucky enough to have General Clifford
Stanley from 29 Palms Marine Air Combat Center also in
attendance.
I think some of the concerns I heard that day, though, are
nicely summed up by Admiral Thomas Moore, former Chairman of
the Joint Chiefs of Staff, in testimony submitted to the
committee today. I would simply appreciate it if Admiral Edney
and General Carney would comment on the following statement of
Admiral Moore.
``The U.S. Armed Forces now have a more fundamental
challenge to leadership training than simply instilling
character traits adverse to lying, cheating and stealing. How
do we instill in young leaders the moral courage to admit when
they are wrong and to accept accountability for poor choices?
Personal example by senior leaders up to and including the
commander in chief is an essential starting point, and a risk
to personal ambitions is no excuse for any officer of the U.S.
Armed Forces to fail in this regard.''
Would either of you comment on that?
Mr. Edney. My comment is that it is made more difficult
when we have examples like we are discussing today, but there
is no question that the young people coming into the military
are being taught to do what is right to analyze and come up
with the whole truth and act in accordance with the truth. They
are being taught to avoid obfuscation. They are being taught to
avoid litigious answers and do what is straight and right.
Because it is the troops that you cannot blow smoke at. The
troops understand what is right. They know right from wrong,
and they know when they see their leaders do wrong and not be
held accountable that there is something wrong.
And so we are working on all of those issues, and I can say
to you from my exposure to the young military, both officer and
enlisted, that the future is in good hands because they have
good quality, and you have every right to be proud of them, and
they are analyzing the message, and they are understanding it.
Does that mean it is not difficult? Does that mean that you
will not get strong differences when you want to talk about it
around the table? You will get some of the same swings that you
have been talking here.
Mr. Carney. I am not concerned about the troops. We teach
integrity because it is good to be honorable men and women, but
we also, as I stated in my opening remarks, we teach it because
of the battlefield component, that false reports on the
battlefield can cause lost battles and unnecessary casualties.
Troops understand that. They also probably understand that
the commander in chief was not committing us to battle when he
allegedly made these errors. I think they can understand that.
And I think that indeed, the way it is being taught today, the
value system will be easily understood.
Mrs. Bono. Thank you very much.
Mr. Hyde. I thank the gentlelady.
I wanted to say before I adjourn the committee how really
grateful I am for you folks who have spent all day, and it has
been a long one and a difficult one. Even when you disagreed
with us, which is most of the time, you helped us. You are here
because you are darn good citizens, and you want to contribute
to this awful task we are grappling with, and you have made a
great contribution. You are all heroic, and I thank you.
This committee stands----
Ms. Jackson Lee. Mr. Chairman, I have just a point of
inquiry, please.
Mr. Hyde. Yes.
Ms. Jackson Lee. Might you give us some idea of the future
hearings, oversight hearings or meetings of this committee? It
might be very helpful to many of us.
Mr. Hyde. I don't have that information, but as soon as it
is formulated, you will be communicated with by the most direct
route.
Ms. Jackson Lee. Thank you, Mr. Chairman. You might expect
to see us next week, I imagine.
Mr. Hyde. I think next week will be a big week in our
lives.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Mr. Hyde. Thank you. The committee stands adjourned.
[Whereupon, at 6:45 p.m., the committee adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing
Statement of Sheila Jackson Lee, a Representative in Congress From the
State of Texas
I would like to thank Chairman Hyde and Ranking Member Conyers for
this opportunity to speak on this important subject.
Charles Dickens' Great Expectations offers guidance in these
troubling times: ``Take nothing on its looks; take everything on
evidence. There's no better rule.''
Today, we will hear testimony from several individuals about
perjury, the rule of law and the consequences of perjury on the
judicial system. ``Equal justice under the law''; this proverb hangs
above the entrance to our Nation's highest court. America is a nation
of laws. The Constitution is the supreme law of the land and no one,
including the President, is above the law nor beneath the law.
Likewise, no one should be hailed before a tribunal to answer
allegations that are not supported by substantial and credible evidence
or threatened with a potential prosecution for perjury because of the
questioner's deficiency.
The United States Code Title 18 section 1621 defines perjury as
Whoever having taken an oath before a competent tribunal,
officer, or person, in any case in which a law of the United
States authorizes an oath to be administered, that he will
testify, declare, depose, or certify truly, or that any written
testimony, declaration, deposition, or certificate by him
subscribed, is true, willfully and contrary to such oath states
or subscribes any material matter which he does not believe to
be true . . . is guilty of perjury.
18 U.S.C. 1621. The American Law Institute Model Penal Code, section
241.1, states,
A person is guilty of perjury if in any official proceeding
he makes a false statement under oath or equivalent
affirmation, or swears or affirms the truth of a statement
previously made, when the statement is material and he [the
declarant] does not believe it to be true.
Black's law dictionary defines perjury as
. . . the willful assertion as to a matter of fact, opinion,
belief, or knowledge, made by a witness in a judicial
proceeding as part of his evidence, either upon oath or in any
form allowed by law to be substituted for an oath, whether such
evidence is given in open court, or in an affidavit, or
otherwise, such assertion being material to the issue or point
of inquiry and known to such witness to be false.
It is axiomatic, that perjury requires a (1) volitional act on the
part of the declarant (2) about a material matter in the case. Perjury
is a specific intent crime. It requires that the declarant willfully
and contrary to such oath subscribe to a material matter which the
declarant does not believe to be true. More importantly, because
perjury requires a specific intent on the part of the declarant, the
law provides several defenses to perjury.
Allow me to explain why truth is a defense to perjury. Assume, an
individual believes that his next door neighbor has found his green
vase. Rather than call the police he enters his friend's home and
removes the green vase. Subsequently, he is charged with burglary. At
the trial, the defendant testifies in his own defense. During cross-
examination, the prosecutor asks, ``Isn't it true that you broke into
the victim's house and stolen his green vase?'' The defendant replies,
``No, I did not steal his green vase.'' The prosecutor then asks,
``Isn't true that the police found the victim's green vase in your
possession?'' Again, the defendant replies, ``No, that is not true.''
Finally, the prosecutor states, ``You realize that you are under
oath?'' The declarant states, ``Yes, I know that I am under oath.''
``More importantly, you are aware that you can be prosecuted for
perjury?'' ``Yes, I am aware of that.''
Assume that the jury finds the defendant not guilty. Nevertheless,
the prosecutor elects to file charges against the defendant for perjury
pursuant to 18 U.S.C. 1621.
Under this scenario, the defendant cannot be prosecuted for
perjury, if he truly believes that he ``spoke the truth'' about the
green vase. The defendant is not guilty of perjury because although his
testimony is freely and voluntarily given, he does not manifest the
requisite mental state necessary for perjury, a specific intent crime.
Restated, perjury requires that the defendant (1) set out to deceive
and (2) know that statements he utters are untrue.
It is a universally accepted truth in criminal law that an
individual must have a guilty mind at the time the wrongful deed is
committed. Therefore, the defendant's true belief about the ownership
of the vase and his responses to the prosecutor's questions would not
support a perjury conviction. The defendant's belief negates the intent
element of perjury.
Now we turn to the issue at hand, the President's statements to
Paula Jones' lawyers during his January 17, 1998, deposition. According
to the Starr Referral, the President committed perjury when he
responded to specific questions from the Jones lawyers about sexual
relations with Monica Lewinsky. Sexual relations was defined as, ``a
person engages in `sexual relations' when the person knowingly engages
in or causes (1) contact with the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person with an intent to arouse or gratify
the sexual desire of any person.''
Utilizing this definition for his responses from the Jones lawyers
during his deposition, the President explained to the grand jury about
why he honestly believed that oral sex was not covered by the Jones
definition of sexual relations.
Additionally, several of the questions asked by the Jones lawyers
were vague, ambiguous and poorly drafted. As a result, the President
answered the questions truthfully but without assisting the Jones
lawyers.
Consequently, like the fictitious defendant in the burglary
scenario, the President's responses to the grand jury would not amount
to perjury because he believed he ``spoke the truth'' about his
relationship with Ms. Lewinsky within the context of the definition
authorized by Judge Wright. Thus, a perjury charge should not stand nor
go forward because the evidence is insufficient to support a valid
perjury conviction.
Although the President lied to the American people when he stated,
``I did not have sex with that woman,'' this statement was not made
under oath or in connection with a judicial proceeding. Certainly, we
all agree that the President's conduct was morally reprehensible and
should not be tolerated in a civilized society; however, impeachment is
not the proper remedy for the President's behavior. Censure is an
equitable solution because it allows the House to exercise its
prosecutorial discretion and punish the President's behavior.
More importantly and critical to my position is the fact that both
Ms. Parsons and Ms. Battalino accepted guilty pleas in exchange for
voluntary waivers of their Constitutional rights to confront witnesses
and a jury trial. Additionally, Parsons and Battalino were both
plaintiffs on the ``offensive'' and voluntarily seeking to shield the
truth to further their own financial interest. Coach Parsons used
perjurious testimony in her defamation suit against a periodical.
Battalino falsified government documents in an effort to have her
liability insurance extended to cover an impermissible event. President
Clinton's case is distinguishable from Parsons and Battalino because he
is the target of the Starr investigation. Also, there is no
substantial, independent, competent evidence to establish that the
President answered any questions under oath falsely.
Another defense to perjury is materiality. The declarant's
statement must be material to the matter before the tribunal. The third
defense to perjury arises where the questioner's interrogatories are
drafted in a manner that invites ambiguity. In the landmark case of
Bronston v. United States, the U.S. Supreme Court stated,
It is the responsibility of the lawyer to probe . . . if a
witness evades, it is the lawyer's responsibility to recognize
the evasion and to bring the witness back to the mark, to flush
out the whole truth with the tools of adversary examination. .
. . A potential prosecution for perjury is not the primary
safeguard against errant testimony.
Under our adversarial system of jurisprudence, a defendant is not
required to assist a plaintiff in bringing her suit to trial nor is a
defendant required under the rules of civil procedure to volunteer
specific information that the plaintiff has not requested. This is our
system of jurisprudence that we have utilized for over 200 years.
Although it has its flaws and disadvantages, it is the best system in
free world because it provides a mechanism for an orderly settlement of
disputes using a rule of law. What is a rule of law? Black's law
dictionary defines it as:
[A] legal principle, of general application, sanctioned by
the recognition of authorities, and usually expressed in the
form of a maxim or logical proposition. Called a ``rule,''
because in doubtful or unforeseen cases it is a guide or norm
for their decision.
The rule of law, sometimes called ``the supremacy of law,'' provides
that decisions should be made by the application of known principles or
laws without the intervention of discretion in their application.
Today, you will hear individuals suggest that we must follow the
rule blindly and without discretion. In fact, some will suggest that we
do not have the authority to seek an alternative solution to this
national crisis. Others will sit and watch as our country's fabric
continues to rip at the moral seam. It's time to rebuild. It's time to
began the healing process and get back to the business of the American
people.
In January 1994 and again in 1996, I took the Congressional Oath of
Office to support and defend the Constitution of the United States
against all enemies, foreign and domestic. It was an obligation that I
took freely and without any reservation. I am bound to faithfully
discharge the duties of my office and uphold the Constitution. My oath
to uphold the Constitution is not a theoretical affirmation but a real
and palpable duty; it is not a partisan responsibility but an
obligation to unify Americans throughout the country. It's time for
unity; it's time for healing; and it's time to put America and her
people first.
Out of the charred ashes of trickery, deceit and deception, truth
will rise, rise and rise. Today, I have come to seek the truth, hear
the truth and remove all barriers to truth because it's time for
healing, it's time to move on and it's time to rebuild.
Office of the Independent Counsel
responses to questions posed by members of the committee on the
judiciary
Office of the Independent Counsel,
Washington, DC, December 11, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Hon. John Conyers, Jr.,
Ranking Minority Member,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Chairman Hyde and Representative Conyers: Thank you for your
letter of December 8, which authorizes me to respond to certain written
questions of individual Members. In preparing these answers I have, of
necessity, relied upon the memory and work of many of my staff members.
To a large degree these facts are outside my personal knowledge. Thus,
to assist Congress as fully as this Office is capable, I have prepared
these answers in consultation with every available attorney and
investigator in the Office who has relevant information, and these
answers represent the best collective understanding of the Office.
As I said during my testimony, my role in the current proceeding is
a limited one, circumscribed by statute. My staff and I, in the course
of carrying out our mandate from the Special Division, came upon
``substantial and credible information . . . that may constitute
grounds for an impeachment.'' Accordingly, as the Ethics in Government
Act requires, we transmitted such information to the House.
While I am happy to explain the Referral and the investigative
decisions that underlie it in response to questions, let me reiterate
that I am not an advocate for any particular course of action. Congress
alone must determine what action that evidence merits.
With that introduction, let me turn to the specific questions
posed:
Questions from Representative Lofgren
1. When did you first hear any information to the effect that a
tape recording existed of a woman--any woman--who claimed to have had a
sexual contact with President Clinton?
In 1992, during the Presidential primary season, I became aware
through media reports that Gennifer Flowers claimed to have had an
affair with then-Governor Clinton and to possess tape recordings that,
she claimed, related to contacts she had with then-Governor Clinton.
2. In or about November 1997, did you discuss with any person the
possibility that a tape recording might exist on which a woman claimed
to have had sexual contact with President Clinton?
I do not remember any such incident and do not believe any such
incident occurred. More specifically:
A. To the extent your question might be taken as a reference
to casual conversation about the Gennifer Flowers tapes, it is
possible (though unlikely) that I had such discussions with
friends and acquaintances in the time period mentioned. I would
have no reason to and do not remember any such conversation.
B. To the extent your question might be taken as asking about
tapes relating to some unidentified woman who was never
subsequently identified, or was subsequently identified as
someone other than Ms. Lewinsky, I do not remember any such
conversation in November 1997 and I do not believe such a
conversation occurred. In Spring 1998, the Office learned of,
and I had conversations concerning, the possible existence of a
tape recording in which a woman other than Monica Lewinsky
stated that she was sexually assaulted by then-Arkansas
Attorney General Clinton.
C. One private citizen has alleged to the FBI that a
videotape exists of a dinner in McLean, Virginia sometime in
November or December 1997 which was allegedly attended by me,
my deputy Jackie M. Bennett Jr., Jonah Goldberg, Lucianne
Goldberg, and Dale Young. Mr. Bennett and I both deny that such
an event occurred.
D. Finally, your question might be taken as asking when I
first learned of a tape recording of a woman who, though
unidentified at the time, I later came to understand was Monica
Lewinsky. I did not personally learn of the possible existence
of such a tape until on or about January 12. As my testimony
reflects, a staff member in our Office has told me that he had
heard of the possible existence of such a tape on January 8.
3. You ``requested that [I] release the media'' by ``waiving any
privilege or shield law'' and ``directing each and every member of [my]
staff to waive any privilege.''
As I said during my testimony, in response to a question from
Representative Waters, I believe the course you suggest would be unwise
in light of the ongoing litigation on the matter. The litigation is, as
the Committee knows, under seal. Because of the strictures of Rule 6(e)
and the decision of the U.S. Court of Appeals for the District of
Columbia Circuit, see In re Sealed Case No. 98-3077, 151 F.3d 1059
(D.C. Cir. 1998), it would be inappropriate to comment further except
to reiterate my testimony that the allegations against our Office are
groundless. We are confident that the ultimate resolution will
demonstrate that our Office conducted itself lawfully and
appropriately.
Questions from Representative Conyers
1. . . . Please complete the process of ``checking,'' searching''
or ``double-checking'' your recollection and answer the questions to
which you either were unable to respond or provide qualified answer.
Please also let us know if you would like to amend or supplement any of
the answers you gave during your appearance as a result of your
``checked,'' ``double-checked'' or ``searched'' recollection.
Most of these instances are addressed in my specific responses in
this letter to the additional questions posed by Members. To the
limited extent that they are not addressed in this letter, I have
reviewed the transcript of my testimony and have nothing to add to my
revised answers.
2. (a) When did you first learn that Samuel Dash intended to resign
his position as your office's ethics adviser if you testified as you
did on November 19?
Several weeks prior to my testimony before the Committee, Professor
Dash informed me and another member of my staff that he intended to
leave the Office by the end of the year because he thought the majority
of the work of the Office had been completed and therefore his counsel
was no longer needed.
Later, in the days leading to my testimony, I was told that
Professor Dash had expressed concern to a few members of our staff
about the tenor of my draft opening statement solely with regard to our
discussion of the Referral. Professor Dash, who supported our written
Referral, stated that he believed it was inappropriate to repeat in my
opening statement our conclusions in the Referral. Professor Dash said
that I could answer any questions about our conclusions and support
those conclusions, but he felt I should not do so in my opening
statement. Rather, Professor Dash recommended that in my opening
statement I strongly defend the actions and investigative strategy of
our Office because he believed we had acted professionally and
ethically and that the attacks were misguided and unfair. I understood
the strength of his concern and the possibility that it might cause him
to resign.
We subsequently made several modifications to the opening statement
that we believed were responsive to the thrust of Professor Dash's
concerns. For example, I repeatedly told this Committee that Congress,
and not our Office, was responsible for the ultimate evaluation of the
information presented. I hoped that the modifications we had made
adequately addressed Professor Dash's concerns.
I did not learn of Professor Dash's actual resignation until I
heard it on CNN on the morning of November 20. I was surprised by it.
Later that morning, after the letter had already been made public, I
received a copy of Professor Dash's resignation letter that had been
delivered to the security kiosk in the public lobby of our office
building.
(b) If you learned of his intent to resign prior to the hearing,
why did you fail to mention that fact when you invoked his name on
several occasions during the hearing?
I invoked Professor Dash's name in a wholly appropriate manner,
reflecting his approval of how the Office has conducted itself. As
Professor Dash himself emphasized in his letter of resignation, ``I
found that you conducted yourself with integrity and professionalism as
did your staff of experienced federal prosecutors.'' Thus, even as he
left our Office over a principle he held strongly, Professor Dash
endorsed the conduct of our Office--an endorsement I proudly invoked in
my testimony.
(c) Did Mr. Dash write any memoranda, letters, or opinions to you
concerning: (i) how to prepare and present a Referral to Congress under
28 U.S.C. 595(c); (ii) whether and how you should make any oral
presentation to the Committee; and (iii) [t]he appropriateness of ``off
the record'' or ``background'' contacts between members of your Office
and the media?
Professor Dash publicly released a letter responsive to your
request on November 20. All other memoranda, letters, and opinions
provided by Professor Dash are internal, deliberative documents which
under Department of Justice policy should not be provided to Congress.
3. You stated during your appearance that you would be willing to
provide the Committee with a complete list of private clients that you
have represented since accepting the position of Independent Counsel.
Please provide such listing.
The list follows:
Abbott Laboratories
Alliedsignal Inc.
Amer. Auto Mfg Assn/Assn Int'l
American Automobile Manufacturers Assn.
American Insurance Association
Amoco Corporation
Apple Computer Incorporated
Associated Insurance Companies
Bell Atlantic Corporation
Board of Trade, Chicago
Brown & Williamson Tobacco
Citisteel Inc.
CMC Heartland Partners
E.I. Dupont de Nemours & Co.
Eleanor M. Hesse
General Motors Corporation
GKN plc
Goodman Holdings/Anglo Irish
GTE Corporation
Hughes Space & Communications, Intl. Inc.
Lynde and Harry Bradley Foundation
Morgan Stanley, Dean Witter & Co.
Motorola, Inc.
Nathan Lewin, Esq.
News America, Inc.
Philip Morris Companies, Inc.
Ray Hays, G. Stokley, et al.
Raytheon Missile Systems Company
Ricky Andrews, Jim Bishop, et al.
Ronald S. Haft
Senate Select Committee on Ethics
Sisters of the Visitation of Georgetown
Southwestern Bell Telephone Co.
State of Wisconsin
Suzuki Motor Corporation
United Air Lines, Inc.
Victor Posner
Vista Paint Corporation
Wharf Cable Limited
Wind Point Partners II
4. When did you first learn that Richard Mellon Scaife or any
entity associated with him was involved with Pepperdine University and/
or the deanship offer that you previously accepted? Please describe the
circumstances by which you were so appraised of his involvement.
To my knowledge, Richard Mellon Scaife had no involvement
whatsoever with Pepperdine University's offer of a deanship to me. My
understanding is that Mr. Scaife and the Dean and Provost of Pepperdine
University have all confirmed this fact. Mr. Scaife's financial
contributions to Pepperdine have been a matter of public record, I
believe, for many years. In January 1997, I received a large notebook
from Pepperdine, which contained a March 1996 memorandum listing ``The
Sarah Scaife Foundation'' as a benefactor of the Pepperdine School of
Public Policy. It is perhaps worth noting that Mr. Scaife has
reportedly funded groups that have published information highly
critical of me and this Office for our work on the Vincent Foster
investigation.
5. . . . Did attorneys, agents or others working with or for your
Office conduct interviews of Arkansas troopers or others in Arkansas in
1997 in which any questions concerning the President's involvement with
women were asked? If so, how did such questions (not the interviews,
but the questions into that subject) relate to any jurisdiction you had
at the time? Please send the Committee any interview memoranda or notes
of any such interviews.
During the course of our investigation we have interviewed various
current and former Arkansas State Troopers. The allegation and
inference that the trooper interviews were an effort to conduct an
investigation into rumors of extramarital affairs involving the
President are false. We denied this allegation when it was first raised
in June 1997 and deny it again today. We sought to determine whether
Governor Clinton or Mrs. Clinton had confided in any associates about
their dealings with the McDougals, Rose Law Firm and others.
At the end of May 1996, Jim and Susan McDougal and Governor Tucker
were found guilty by a jury in Little Rock. Following his conviction,
Jim McDougal began cooperating with this Office. In August 1996, he
provided the Office with additional relevant facts and information. The
Office sought to prove or disprove his testimony and information. In
September 1996, Susan McDougal went into civil contempt rather than
give testimony to the grand jury, thereby closing off one avenue of
possible corroboration.
In connection with the Madison Guaranty Savings and Loan, Capital
Management Services, and Whitewater investigations, the Office and its
agents analyzed Governor Clinton's telephone message slips, appointment
books, and trooper logs during relevant time periods. As noted above,
we sought to determine whether Governor Clinton or Mrs. Clinton had
confided in any associates about their dealings with the McDougals,
Rose Law Firm and others.
Armed with the new evidence from Jim McDougal and the information
from the message slips, appointment books, and trooper logs, career
prosecutors and experienced investigators determined--in accordance
with standard investigative practice--that certain Arkansas Troopers
should be interviewed. Some had previously been interviewed in February
1995 regarding matters within the Office's core jurisdiction, including
contacts between the Clintons and the McDougals, as well as certain
issues raised in the Resolution Trust Corporation's criminal referrals.
Several experienced agents interviewed a number of troopers identified
from the trooper logs for the relevant time frames. Between November
1996 and March 1997, we conducted interviews of 12 troopers. They were
questioned about their knowledge of the Clintons' contacts with the
McDougals and other persons relating to the Madison, Whitewater, and
Capital Management Services transactions.
The troopers were also asked to identify persons (both men and
women) whom President or Mrs. Clinton were close to and in whom they
might have confided during the relevant time frames. The troopers who
were interviewed identified persons whom they believed were close to
either Governor Clinton or Mrs. Clinton.
Many of the troopers identified both men and women who were close
associates of Governor and Mrs. Clinton. For example, the two troopers
quoted in the June 1997 Washington Post article, Roger Perry and Ronald
Anderson, identified men and women whom then-Governor Clinton and Mrs.
Clinton might have been close to and confided in. Roger Perry
identified 10 individuals close to then-Governor Clinton, 4 of whom
were women. Ronald Anderson identified 14 associates of then-Governor
Clinton, including 5 women.
Because the troopers interviewed were explicitly promised
confidentiality, we must respectfully decline to furnish their
interviews to the Committee. So too, consistent with Department of
Justice policy, we must respectfully decline to make the rough notes of
interviews available. We are prepared, of course, to discuss mechanisms
by which the Committee can carry out its duties consistent with our
pledges of confidentiality.
6. (a) At Any time, have you talked to Richard Porter about any
issues relating to the Paula Jones case?
(b) If so, please identify the date(s) of each such conversation
and the precise content of the conversations.
I have not spoken with Mr. Porter about any issues relating to the
Paula Jones case. This is consistent with Mr. Porter's recollection--he
has publicly stated that he has never spoken with me about the Paula
Jones case. The only contact we have had that is at all related to your
question was a voice-mail message I received from Mr. Porter in Spring
1998 in which he apologized to me that misinformation about his actions
had been used unfairly to attack and embarrass me and the work of this
Office.
7. (a) . . . Please state whether anyone from, or working with, or
associated with, your Office investigated (including asking any
question. about or obtaining any document about) Ms. Steele's adoption
of her child?
(b) If the answer to the foregoing question is ``yes,'' please tell
us what relevance that issue had to any issue under your jurisdiction;
and
(c) Please respond to Ms. Steele's allegation that the issue of the
legality of her son's adoption was raised by your Office in an attempt
to pressure her to cooperate with your investigation.
The investigation concerning Ms. Steele's involvement in the
Kathleen Willey matter is pending. Department of Justice policy
generally prohibits providing Congress with confidential material
relating to an ongoing investigation. Thus we are not in a position to
directly answer question 7(a) or 7(b) at this time. Having said that,
the Office has not attempted to investigate whether the adoption is
proper and legal. We have not obtained or attempted to obtain any
documents concerning the adoption of her son from anyone, including any
state, local, national, or foreign government or agency. The suggestion
that this Office or anyone working on our behalf has attempted in any
way to use Ms. Steele's son's adoption to pressure her to change her
testimony is absolutely false. Like many other groundless allegations
made against the Office, this allegation is one which we cannot fully
factually respond to because of the pendency of an investigation. Our
Office and the investigators, agents, and attorneys working on our
behalf have conducted and continue to conduct a proper, thorough, and
professional investigation.
8. . . . [D]o you admit or deny that during the day or night of
January 16, 1998, your associates or agents:
I was not, of course, present at the Ritz Carlton. Many of these
questions appear to rely on Ms. Lewinsky's perception of events as they
unfolded that day. It is my understanding, however, that Ms. Lewinsky
was, understandably, upset and distraught when approached by this
Office--not due to her treatment by this Office, but due to the gravity
of the situation in which she had found herself. Ms. Lewinsky
apparently interpreted this Office's actions from the perspective of a
very difficult and emotional day. By contrast, Chief Judge Norma
Holloway Johnson has ruled, among other things, that:
our Office did not violate Ms. Lewinsky's right to
counsel, because the right had not yet attached;
our Office did not violate District of Columbia
Rules of Professional Conduct by contacting Ms. Lewinsky
because the interview occurred prior to indictment in a non-
custodial setting; and
our Office did not disrupt Ms. Lewinsky's attorney-
client relationship by preventing her from contacting Mr.
Carter because she was given several unsupervised opportunities
to contact anyone she chose, and an agent called Mr. Carter's
office to determine if he would be available if Ms. Lewinsky
decided she wished to contact him.
The opinion, of course, speaks for itself.
(a) told Ms. Lewinsky that she could go to jail for 27 years (if
you admit that they did, on what basis under what guidelines did they
conclude that she could receive that type of sentence)
Deny. I was not at the Ritz Carlton. I am advised by the Office
staff that, during the course of the discussion with Ms. Lewinsky, she
was advised of the nature of the possible charges against her and what
the maximum penalty would be for each offense. At no time was Ms.
Lewinsky told what her actual sentence would be. I note that all of the
applicable federal offenses carry maximum penalties in 5-year
increments and, consequently, no possible combination of charges could
carry a 27-year maximum penalty.
(b) threatened to prosecute Ms. Lewinsky' mother
Deny. Again, I was not at the Ritz Carlton. I am advised that the
Office did not threaten to prosecute Ms. Lewinsky's mother. The Office
staff told Ms. Lewinsky some of the facts and evidence known to the
Office, including a reference to her mother's apparent, though limited,
knowledge of and involvement in the crimes under investigation.
(c) told Ms. Lewinsky that she would be less likely to receive
immunity if she contacted her attorney
Deny. Once again, I was not at the Ritz Carlton. Ms. Lewinsky did
not have an attorney for purposes of the criminal investigation. Our
view was later confirmed when we learned of the terms of the
``Engagement Agreement'' between Francis D. Carter and Ms. Lewinsky
which clearly limited Mr. Carter's representation of Ms. Lewinsky to
Ms. Lewinsky's Jones deposition. We did discuss with a Department
official the fact that Frank Carter represented her in connection with
the Jones deposition and not in the criminal investigation and our
understanding that we could ethically approach her in connection with
our criminal investigation. Subsequently, Chief Judge Norma Holloway
Johnson held, among other things, that our Office did not disrupt Ms.
Lewinsky's attorney-client relationship by preventing her from
contacting Mr. Carter.
Second, Ms. Lewinsky was told that she was free to contact Mr.
Carter and when she asked about the possibility of doing so we called
Mr. Carter's office on her behalf. Hotel records confirm this fact.
Third, we provided Ms. Lewinsky with the phone number of a legal
aid or the public defender's office and she was not told that she would
risk jeopardizing a possible immunity agreement if she contacted an
attorney there. She chose not to call that office. She later retained
William Ginsburg to represent her in the criminal matter and we renewed
the offer of immunity when he was retained. Ms. Lewinsky and Mr.
Ginsburg declined the offer that evening, and we continued to discuss
it with her attorneys over the course of the next several days. But the
fact is that an immunity offer was made to her both before and after
she had retained counsel.
We invited Ms. Lewinsky to cooperate with our investigation. We
warned her, though, that any cooperation could be less effective if
others (including Mr. Carter) knew she was cooperating. We also told
her that she would receive a greater benefit for more effective
cooperation.
(d) told Ms. Lewinsky that they wore not ``comfortable'' with
William Ginsburg
Deny. I was not present at the Ritz Carlton. This is an apparently
mistaken reference to the FBI report of interview concerning the
meeting with Ms. Lewinsky. That report states ``AIC Emmick . . .
advised Ginsburg he was uncomfortable with the relationship between
Ginsburg and Monica Lewinsky.'' House Doc. 105-311, at 1380 (emphasis
supplied) (capitalization removed). Thus, nobody from the Office ever
told Ms. Lewinsky he or she was not ``comfortable'' with Mr. Ginsburg.
Mr. Emmick did advise Mr. Ginsburg that he was uncomfortable with
the fact that, although Mr. Ginsburg claimed to represent Ms. Lewinsky,
Mr. Ginsburg had never spoken to her at all on the subject; and that
Mr. Ginsburg had, in fact, been hired by Ms. Lewinsky's father without
consulting Ms. Lewinsky personally. Indeed, as the FBI report reflects,
Ms. Lewinsky also was unsure initially if Mr. Ginsburg should represent
her, because he was a medical malpractice attorney. Mr. Emmick
therefore requested that Ms. Lewinsky and Mr. Ginsburg speak on the
phone and that Ms. Lewinsky confirm that she was represented by Mr.
Ginsburg. After speaking with Mr. Ginsburg, Ms. Lewinsky advised the
Office that she had retained Mr. Ginsburg. Thereafter we conducted all
further discussions with him or his associate and scrupulously honored
their attorney-client relationship.
(e) when Ms. Lewinsky asked to speak with her mother, said words to
the effect that she was 24, she was smart, and she did not need to talk
to her mommy
Admit. Ms. Lewinsky was at all times treated courteously and
professionally. According to my staff, Ms. Lewinsky was told that she
was 24, she was smart, and she should not need to talk to her mother
about cooperating with the investigation. Again, we advised Ms.
Lewinsky that her cooperation with the Office, should she choose to
cooperate, would be less beneficial to her if the fact of her
cooperation became known. In the end, we waited more than 6 hours for
Marcia Lewis to arrive from New York. When she arrived: we answered her
question; Ms. Lewis and Ms. Lewinsky consulted privately; and they
contacted Bernard Lewinsky to help Ms. Lewinsky find an attorney. When
they left at the end of the evening both Ms. Lewinsky and her mother
specifically thanked the Office staff for being so nice. See House Doc.
105-311, at 1380 (FBI Report of Interview with Monica Lewinsky); 105-
316, at 2324 (testimony of Marcia Lewis).
9. When your agents and attorneys confronted Monica Lewinsky on
January 16, 1998, according to her grand jury testimony, they told her
that she had committed a crime by signing a false affidavit.
Our Office advised Ms. Lewinsky that, based on information
available to us, we believed she had committed a number of offenses,
including subornation of perjury, obstruction of justice, conspiracy,
and perjury by signing a false affidavit. And, of course, as Ms.
Lewinsky later admitted, the affidavit was false.
(a) Did your Office have a copy of Ms. Lewinsky's signed affidavit
at the time?
Yes.
(b) If so, how did your Office acquire it? . . .
On January 15, we received a faxed copy from the business center
located in the office building of James Moody, Linda Tripp's former
attorney, which Mr. Moody routinely uses as his fax center. Mrs. Tripp
told the Office on January 14 that she ``believ[ed] that Lewinsky's
affidavit was signed, sealed and delivered yesterday [i.e. on January
13].'' House Doc. 105-316, at 3773. Thus, when we received the
affidavit, we understood that it had been provided to-us by Mr. Moody,
who had received it in his capacity as Mrs. Tripp's attorney.
10. (a) Regardless whether you believe that any statements made to
the media by you, or anyone working in your Office, or under your
supervision, violated Rule 6(e) of the Federal Rules of Criminal
Procedure, do you admit or deny that you, or anyone working in your
Office, or under your supervision, supplied any information cited in
any of the 24 reports for which Chief Judge Norma Holloway Johnson
found prima facie violations of Rule 6(e) in her order dated September
24 [sic], 1998?
(b) If you admit that you, or anyone working in your Office, or
under your supervision, supplied any such information, please identify
the particular media stories to which your admission relates.
As I said in my testimony, this matter is under seal. With all
respect, I believe it would be inappropriate to discuss the matter
while the litigation is pending. Inasmuch as Representatives Conyers
and Nadler have recently asked the Attorney General to remove me for
cause for allegedly disclosing sealed materials, to now provide sealed
information would be unwise.
11. Please provide the name and title of the individual who drove
Linda Tripp home from the Ritz Carlton on January 16, 1998.
To my knowledge, no employee of the Office of Independent Counsel
drove Linda Tripp home from the Ritz Carlton on January 16, 1998. One
Office investigator recalls that Mrs. Tripp mentioned that her lawyer
was going to pick her up at the Ritz Carlton, though we have no certain
knowledge of who drove her home. Moreover, to my knowledge, no employee
of the Office of Independent Counsel knew that she was going to meet
that evening with the attorneys representing Paula Jones. Mrs. Tripp
testified before the grand jury that she had not disclosed this to any
Office employee:
Q. [D]id anybody at the Office of Independent Counsel or
working for the Office of Independent Counsel know that you
were going to meet with Paula Jones' attorneys?
A. No. It never came up. It was never addressed. It was never
shared.
House Doc. 105-316, at 4356.
12. . . . Isn't it true that your agents or attorneys discussed
with Ms. Lewinsky that cooperating would include the possibility of
taping conversations with Mr. Jordan, Ms. Currie or the President? If
you claim those names were not discussed, is it your position that when
Ms. Lewinsky testified about this matter, she was not being truthful?
At no time during the meeting with Ms. Lewinsky was she asked to
tape record a conversation with President Clinton or Vernon Jordan. Ms.
Lewinsky was asked to cooperate. We described to her the investigation
and identified some of the witnesses and subjects of the investigation,
including President Clinton, Mr. Jordan, and Ms. Currie, and their
roles. Ms. Lewinsky was told that cooperation would include debriefing,
testimony, and, possibly, tape recording conversations with some
witnesses and subjects. Ms. Lewinsky was told that we wanted to debrief
her before deciding with whom, if anyone, she would be asked to tape
record conversations. Although we hoped, when we approached Ms.
Lewinsky, that the situation might eventually permit us to have Ms.
Lewinsky tape record conversations with some individuals, including
possibly Ms. Currie, we did not have any plan to have her tape record
conversations with Mr. Jordan or President Clinton. Ms. Lewinsky may
have reached an incorrect inference as to this Office's intentions
based upon our general discussion of the possibility of tape recording
conversations and our other general discussions about the nature of our
investigation.
13. . . . For each of the procedures that Ms. Lewinsky testified
were used, please indicate whether your agents or attorneys advised any
official of the Department of Justice, before hand, about each of the
following:
Generally, our discussions with the Department of Justice did not
approach the high level of specificity suggested by your questions.
Moreover, the factual and legal premises of many of the questions are
wrong. With that introduction:
(a) That Ms. Lewinsky would be taken to a hotel room
We discussed with a Department official the plan that Ms. Lewinsky
would be met, taken to a private location, spoken to by Office staff,
and asked to cooperate. We are uncertain whether the specific location
of a hotel room was mentioned.
(b) That Ms. Lewinsky would be read her Miranda rights
We believe we informed a Department official that we intended to
advise Ms. Lewinsky of her rights, and to tell her that she was free to
leave at any time. Miranda warnings were not required because, as Chief
Judge Johnson found, Ms. Lewinsky was not in custody. At the Ritz
Carlton, FBI agents assigned to the Office approached Ms. Lewinsky in
the lobby, asked her to go upstairs, and told her she was not under
arrest and was free to leave at any time. Later, in the hotel room, she
was again told she was free to leave at any time. At one point, an
agent attempted to read from a standard FBI Advice of Rights form, but
Ms. Lewinsky became upset and the reading was discontinued.
(c) That Ms. Lewinsky would be in that room or with your agents or
attorneys for 10 or more hours
No. As the FBI report of interview (and the recently unsealed
documents from the litigation relating to the subpoena to Mr. Carter)
make clear, the bulk of the time spent with Ms. Lewinsky was
attributable to her own insistence that her mother be present; her
mother's unwillingness to fly from New York to Washington; and her
mother's unavoidable delay in arriving due to a train delay. Indeed, 6
hours passed between Ms. Lewinsky's call to her mother and Marcia
Lewis's arrival. Over 2 more hours passed as our Office talked with Ms.
Lewinsky, Ms. Lewis, Bernard Lewinsky, and Mr. Ginsburg, all with Ms.
Lewinsky's approval. During the entire evening, Ms. Lewinsky was never
questioned about her involvement in the matters under investigation.
When they left at the end of the evening both Ms. Lewinsky and her
mother specifically thanked the Office staff for being so nice. See
House Doc. 105-311, at 1380 (FBI Report of Interview with Monica
Lewinsky); 105-316, at 2324 (testimony of Marcia Lewis).
Thus, the specific amount of time that would be spent with Ms.
Lewinsky was not discussed with the Department because it was unknown,
and it was not anticipated that the meeting would extend for the length
of time it did. Moreover, the factual premise of your question is
incorrect as Ms. Lewinsky entered and exited the room on occasion
unaccompanied.
(d) That your agents or attorneys would tell Ms. Lewinsky that she
could go to jail for 27 years
No. The factual premise of your question is incorrect as discussed
in my answer to question 8(a), which says: ``[D]uring the course of the
discussion with Ms. Lewinsky, she was advised of the nature of the
possible charges against her and what the maximum penalty would be for
each offense. At no time was Ms. Lewinsky told what her actual sentence
would be.'' Consequently, this issue was never discussed with the
Department.
(e) That your agents or attorneys would discourage Ms. Lewinsky
from talking with her attorney, Frank Carter
The factual premise of your question is incorrect, as discussed in
my answer to question 8(c), which says: ``Ms. Lewinsky did not have an
attorney for purposes of the criminal investigation. Our view was later
confirmed when we learned of the terms of the `Engagement Agreement'
between Francis D. Carter and Ms. Lewinsky which clearly limited Mr.
Carter's representation of Ms. Lewinsky to Ms. Lewinsky's Jones
deposition.'' Subsequently, Chief Judge Norma Holloway Johnson held,
among other things, that our Office did not disrupt Ms. Lewinsky's
attorney-client relationship by preventing her from contacting Mr.
Carter.
As I also noted in my answer to question 8(c): ``We invited Ms.
Lewinsky to cooperate with our investigation. We warned her, though,
that any cooperation could be less effective if others (including Mr.
Carter) knew she was cooperating. We also told her that she would
receive a greater benefit for more effective cooperation.''
We did discuss with a Department official the fact that Frank
Carter represented her in connection with the Jones deposition and not
in the criminal investigation; our understanding that we could
ethically approach her in connection with our criminal investigation;
and our concern that if information regarding our contact with Ms.
Lewinsky became known, her ability to assist the investigation would be
compromised.
(f) That if Mr. Lewinsky secured the representation of another
attorney, your agents or attorneys would tell her that they were
``uncomfortable'' with that attorney
No. The factual premise of your question is incorrect as discussed
in my answer to question 8(d), which says: ``[T]his is an apparently
mistaken reference to the FBI report of interview concerning the
meeting with Ms. Lewinsky. That report states `AIC Emmick . . . advised
Ginsburg he was uncomfortable with the relationship between Ginsburg
and Monica Lewinsky.' House Doc. 105-311, at 1380 (emphasis supplied)
(capitalization removed). Thus, nobody from the Office ever told Ms.
Lewinsky he or she was not `comfortable' with Mr. Ginsburg.
``Mr. Emmick did advise Mr. Ginsburg that he was uncomfortable with
the fact that, although Mr. Ginsburg claimed to represent Ms. Lewinsky,
Mr. Ginsburg had never spoken to her at all on the subject; and that
Mr. Ginsburg had, in fact, been hired by Ms. Lewinsky's father without
consulting Ms. Lewinsky personally. Indeed, as the FBI report reflects,
Ms. Lewinsky also was unsure initially if Mr. Ginsburg should represent
her, because he was a medical malpractice attorney. Mr. Emmick
therefore requested that Ms. Lewinsky and Mr. Ginsburg speak on the
phone and that Ms. Lewinsky confirm that she was represented by Mr.
Ginsburg. After speaking with Mr. Ginsburg, Ms. Lewinsky advised the
Office that she had retained Mr. Ginsburg. Thereafter we conducted all
further discussions with him or his associate and scrupulously honored
their attorney-client relationship.''
Consequently this issue was never discussed with the Department.
(g) That your agents or attorneys would discourage her from calling
her mother
Not specifically. We discussed with the Department our concern
that, if information regarding Ms. Lewinsky's cooperation became known,
her ability to assist the investigation would be compromised. We did
not specifically address the possibility that disclosure to Ms. Lewis
could harm the investigation.
(h) That your agents or attorneys would raise the issue of immunity
without having Ms. Lewinsky's attorney present
As noted in our response to questions 8(c) and 13(e), Mr. Carter
was not Ms. Lewinsky's attorney for purposes of the criminal
investigation. We discussed with the Department the propriety of
approaching Ms. Lewinsky, notwithstanding Mr. Carter's representation
in the Jones matter. And the Department knew we would be seeking Ms.
Lewinsky's voluntary cooperation. We are uncertain whether the specific
topic of immunity was discussed.
(i) That your agents or attorneys would raise the possibility of
Ms. Lewinsky becoming a cooperating witness and explain to her that
such cooperation included the possibility that she would be used to
tape record conversations with other people, including possibly Ms.
Currie, Mr. Jordan or the President
We did discuss with a Department attorney the Office's decision to
seek Ms. Lewinsky's participation as a cooperating witness, including
the possibility of tape recording generally. The factual premise is
incorrect, as discussed in my answer to question 12, which says: ``At
no time during the meeting with Ms. Lewinsky was she asked to tape
record a conversation with President Clinton or Vernon Jordan. Ms.
Lewinsky was asked to cooperate. We described to her the investigation
and identified some of the witnesses and subjects of the investigation,
including President Clinton, Mr. Jordan, and Ms. Currie, and their
roles. Ms. Lewinsky was told that cooperation would include debriefing,
testimony, and, possibly, tape recording conversations with some
witnesses and subjects. Ms. Lewinsky was told that we wanted to debrief
her before deciding with whom, if anyone, she would be asked to tape
record conversations. Although we hoped, when we approached Ms.
Lewinsky, that the situation might eventually permit us to have Ms.
Lewinsky tape record conversations with some individuals, including
possibly Ms. Currie, we did not have any plan to have her tape record
conversations with Mr. Jordan or President Clinton. Ms. Lewinsky may
have reached an incorrect inference as to this Office's intentions
based upon our general discussion of the possibility of tape recording
conversations and our other general discussions about the nature of our
investigation.''
14. . . . Putting aside your personal opinion or position, isn't it
true that:
(a) ``materiality'' is a jury question
Yes. Materiality is a jury question. United States v. Gaudin, 515
U.S. 506 (1995).
(b) a reasonable juror could vote against a conviction for
perjury because he or she did not believe that the statements
were material
The question has been addressed, in part, by prior court rulings.
On December 11, 1997 Judge Susan Webber Wright entered an order
requiring President Clinton to answer certain questions relating to
women such as Ms. Lewinsky, reflecting Judge Wright's views on the
materiality of President Clinton's statements. The U.S. Court of
Appeals for the District of Columbia Circuit has also ruled on the
materiality of Ms. Lewinsky's affidavit in its opinion affirming the
enforcement of the subpoena issued to Mr. Carter, holding that the
statements in it were material.
15. Please provide the date that your Office concluded that there
was ``no evidence that anyone higher than Mr. Livingstone or Mr.
Marceca was in any way involved in ordering the files from the FBI.''
Please provide the Committee any declination or closing memoranda or
other document which includes this conclusion.
The question seems to imply that our assigned criminal jurisdiction
in the FBI files matter focused on the President himself and that we at
some point thereafter became aware that certain initial allegations
against the President had been found to be untrue. But that is not an
accurate description of the assigned jurisdiction or the progress of
the subsequent investigation. The jurisdiction assigned to us by the
Special Division, at the request of the Attorney General, focused on
whether Anthony Marceca had violated federal criminal law. Unlike the
Whitewater investigation (with respect to David Hale's allegation) or
the Lewinsky investigation (with respect to evidence concerning Monica
Lewinsky and the President), our initial jurisdiction in the FBI files
matter did not arise out of any specific allegation against the
President himself. At no point in the investigation did this Office
receive evidence demonstrating that anyone higher than Mr. Livingstone
or Mr. Marceca was involved.
After the impeachment inquiry began in the House of
Representatives, we became aware that the Judiciary Committee was
interested in whether this Office possessed additional evidence that
``may constitute grounds for an impeachment'' against the President.
Our investigation into Mr. Marceca and related matters, including our
understanding of the handling of the FBI files, had not produced any
such evidence. As explained in my answer to question 17, it was
appropriate to inform the Congress of that fact during my testimony on
November 19. Providing any decisional memoranda relating to an ongoing
criminal investigation would violate Department of Justice policy.
16. Please provide the date that your office concluded that ``We do
not anticipate that any evidence gathered in that [Travel Office]
investigation will be relevant to the Committee's current task. The
President was not involved in our Travel Office investigation.'' Please
provide the Committee any declination or closing memoranda or other
document which includes this conclusion.
As to the Travel Office matter, it is again important to understand
the events that prompted the criminal investigation. The question
implies that our initial criminal jurisdiction focused on the President
himself and that we at some point thereafter became aware that certain
initial allegations against the President had been found to be untrue.
In fact, the jurisdiction assigned to us by the Special Division, at
the request of the Attorney General, focused on whether David Watkins
had made criminal false statements to the General Accounting Office.
Statements made by Mrs. Clinton also became the subject of the criminal
investigation. Our initial jurisdiction in the Travel Office matter,
unlike certain other investigations conducted by this Office, did not
arise out of any specific allegation against the President himself. At
no point in the investigation did this Office receive evidence showing
that President Clinton was involved.
After the impeachment inquiry began in the House of
Representatives, we became aware that the Judiciary Committee was
interested in whether this Office possessed additional evidence that
``may constitute grounds for an impeachment'' against the President.
Our investigation into statements made by Mr. Watkins and Mrs. Clinton,
and into related matters, had not produced any such evidence. As
explained in my answer to question 17, it was appropriate to inform the
Congress of that fact during my testimony on November 19. Providing any
decisional memoranda relating to an ongoing criminal investigation
would violate Department of Justice policy.
17. Please identify the statutory authority which authorized you to
make disclosures to the Committee concerning the status of the
``Filegate'' and ``Travelgate'' investigations in advance of the filing
of a final report on these matters?
On July 7, 1998, the Special Division of the U.S. Court of Appeals
for the District of Columbia Circuit issued an order authorizing
disclosure of information to the House of Representatives that may
constitute grounds for an impeachment. That order was issued pursuant
to Section 595(c) of Title 28, which requires an independent counsel to
provide information that ``may constitute grounds for an impeachment''
to the House of Representatives. House Resolution 581 authorized the
impeachment inquiry. On October 2, 1998, the Committee had inquired of
this Office whether we possessed information other than that contained
in our September 9 Referral that ``may constitute grounds for an
impeachment.''
Finally, it bears note that on November 19 I did not reveal any
particular testimony or the contents of any particular documents
gathered during the FBI Files or Travel Office investigation. I was
mindful of the need to try to protect the reputations of unindicted
individuals and not to go into details of those investigations.
18. Please send the Committee all documents requested in Rep.
Conyers' November 16, 1998, document requests addressed to the
custodian of records of your office.
As you know, we have already produced some documents responsive to
Representative Conyers' request dated November 16. We have previously
expressed our concern with providing sensitive investigative documents
to the Committee in violation of Department of Justice policy. In
addition, the Committee's December 8 request appears to only authorize
answering questions. Nonetheless, we are prepared to discuss mechanisms
by which the Committee can obtain non-sensitive documents and carry out
its duties consistent with our responsibility to follow Department of
Justice policies and to maintain the integrity of our investigation.
19. Please describe the status of any previous or ongoing
investigations, actions or inquiries into possible misconduct,
including conflicts of interest, leaking, and prosecutorial misconduct,
by you, your office or any current or former employee or agent of your
office in connection with the various investigations you have or are
conducting as Independent Counsel. In your answer, identify which
office or person is conducting the inquiry, when you first learned of
its existence, and any conclusion reached. Please include any private
or public actions as well as any ethics or state or local bar
inquiries.
No court or ethics body has ever made a final determination that
this Office, or any of its employees, has ever engaged in misconduct.
To the extent ongoing and completed investigations have been made
public, they are discussed below. To the extent they are not yet
public--because of legal or ethical restrictions on their
dissemination--I am obliged not to provide them to you. We are not
interpreting your question to include the various allegations by
criminal defendants and grand jury witnesses that have not resulted in
investigations.
Francis A. Mandanici
According to Judge Susan Webber Wright, ``[n]o one who has
objectively considered the matter seriously disputes that Mr. Mandanici
is on a personal crusade to discredit the Independent Counsel.'' In re
Starr, 986 F. Supp. 1159, 1161 (E.D. Ark. 1997) (Starr II); accord id.
(`` `Mr. Mandanici's vendetta against conservative forces and his
objections to Mr. Starr's involvement in the Whitewater investigation
are many and long standing' . . . .'') (quoting Judge Eisele). In
carrying out his ``vendetta,'' Mr. Mandanici has filed numerous
complaints against me.
In August 1996, Mr. Mandanici filed complaints against me in the
U.S. Court of Appeals for the Eighth Circuit and the Supreme Court of
the United States. Both alleged conflicts of interest on my part. The
Supreme Court returned Mr. Mandanici's papers as inadequate to support
action by the Court. The Eighth Circuit took no action, see In re
Starr, 986 F. Supp. 1144, 1146 (E.D. Ark. 1997) (Starr I), and denied a
petition for rehearing en banc. Our Office learned of both complaints
at or near the time they were filed.
In September 1996, Mr. Mandanici filed a complaint alleging
conflicts of interest with the U.S. District Court for the Eastern
District of Arkansas. The court forwarded the complaint to Attorney
General Janet Reno. In October 1996, Mr. Mandanici filed a similar
complaint with the Attorney General directly.\1\ On February 7, 1997,
Michael E. Shaheen, Jr., Counsel with the Office of Professional
Responsibility of the Department of Justice, stated that the Department
would take no action because the allegations, even if true, would not
warrant my removal from office. See id. I believe that our Office
learned of these complaints at or near the time they were filed.
---------------------------------------------------------------------------
\1\ Mr. Mandanici had filed a similar complaint with the Attorney
General in April 1996.
---------------------------------------------------------------------------
In January 1997, Mr. Mandanici stated that he had filed a complaint
with the U.S. District Court for the District of Columbia and that the
court had taken no action. Our Office has found no record of this
complaint, other than this reference. I do not remember having
knowledge of the District Court complaint before January 1997 and am
unsure if any such complaint was, in fact, filed.
In February 1997, Mr. Mandanici filed another complaint with the
Attorney General, requesting that I be removed as Independent Counsel
for conflicts of interest. On March 25, 1997, Mr. Shaheen again stated
that the Department would take no action. I believe that our Office
learned of this complaint at or near the time it was filed.
In March 1997, Mr. Mandanici renewed his conflicts of interest
allegations with the Eastern District of Arkansas. In June 1997, Mr.
Mandanici filed a complaint with the court alleging that our Office was
guilty of grand jury leaks and prejudicial public statements. See Starr
II, 986 F. Supp. at 1160. The district court dismissed both of these
complaints, citing the Department's decisions, the absence of specific
evidence, and Mr. Mandanici's ``vendetta.'' Id. at 1161-62. The Eighth
Circuit dismissed Mr. Mandanici's appeal for lack of jurisdiction. See
United States Debit of Justice v. Mandanici (In re Starr), 152 F.3d 741
(8th Cir. 1998). I believe that our Office learned of these complaints
at or near the time they were filed.
In April 1998, Mr. Mandanici filed yet another conflicts of
interest complaint with the Eastern District of Arkansas, this time
concerning the investigation of the David Hale matters. In May 1998,
the court dismissed this complaint as premature. Our Office learned of
this complaint at or near the time it was filed.
Private Actions
In March 1996, Stephen A. Smith filed a lawsuit, Smith v. Starr,
No. EIJ96-1557, in the Chancery Court of Pulaski County, Arkansas, for
making an allegedly false statement about his guilty plea. I removed
this case to the U.S. District Court for the Eastern District of
Arkansas on April 4. On May 16, Mr. Smith voluntarily dismissed the
lawsuit. My Office learned of this lawsuit at or near the time it was
filed.
In February 1998, James Forman filed a lawsuit, Forman v. Starr,
Civ. No. 98-270, in the U.S. District Court for the District of
Columbia, alleging that our Office used illegally created tapes. On
February 4, 1998, Judge Hogan sua sponte dismissed the case for failure
to state a claim on which relief can be granted. The U.S. Court of
Appeals for the District of Columbia Circuit affirmed the decision of
the district court on April 30, 1998. See Forman v. Starr, No. 98-5029,
1998 WL 316137 (D.C. Cir. Apr. 30, 1998) (per curiam) (unpublished).
Our Office was ably represented by U.S. Attorney Wilma A. Lewis and her
staff in this matter. Our Office learned of this lawsuit at or near the
time it was filed.
Also in February 1998, David E. Kendall, acting on behalf of
President Clinton, filed a motion in the U.S. District Court for the
District of Columbia requesting that the court issue an order to show
cause why our Office should not be held in contempt for leaking grand
jury material. This motion was followed by two similar motions, and was
joined by several other persons and entities. (Misc. Nos. 98-55, 98-
177, 98-228). On June 19, 1998, Chief Judge Norma Holloway Johnson
found that news reports presented by the movants established a prime
facie violation of Federal Rule of Criminal Procedure 6(e), thus
requiring our Office to come forward with evidence that we were not
responsible for the alleged leaks of grand jury material. The finding
of a prima facie violation is not a finding of misconduct, as the
District of Columbia Circuit has adopted a broad approach, requiring
the court to accept the words of each news report as true. On August 3,
1998, on writ of mandamus, the District of Columbia Circuit unanimously
ordered that further proceedings by the district court or a Special
Master be conducted ex parte and in camera. See In re Sealed Case No.
98-3077, 151 F.3d 1059 (D.C. Cir. 1998). On September 25, Judge Johnson
referred this matter to a Special Master.\2\ We are cooperating with
the Special Master's investigation and demonstrating that we did not
violate Rule 6(e). That investigation is still pending. Our Office
learned of Mr. Kendall's complaint at the time it was filed.
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\2\ Judge Johnson has sealed the name of the Special Master and,
therefore, we are not permitted to reveal it to this Committee.
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In August 1998, H.L. Watkins, Jr. filed a lawsuit, Watkins v.
Starr, Civ. No. 98-2054, in the U.S. District Court for the District of
Columbia, suing the Attorney General, Senator Orrin Hatch, and me for
$40 million for investigating the President. Judge Emmet G. Sullivan
sua sponte dismissed the case with prejudice on October 1, 1998. Our
Office learned of this lawsuit at or near the time it was filed.
In September 1998, Joseph Fischer filed a lawsuit, Fisher v. Starr,
Civ. No. 98-2295, in the U.S. District Court for the District of
Columbia, alleging that the Referral was improper and contrary to law
and that the House of Representatives violated the law in releasing the
Referral to the public. Our Office is ably represented by U.S. Attorney
Lewis and her staff in this matter, which still is pending. Our Office
learned of this lawsuit at or near the time it was filed.
In October 1998, Betty Muka filed a lawsuit, Muka v. Rutherford
Institute, Civ. No. 98-2470, in the U.S. District Court for the
District of Columbia, suing a vast number of persons, including all
Members of Congress, for $40 million. Among other things, she alleges
that the Ethics in Government Act is unconstitutional and that our
Office has committed various misdeeds. This action is still pending.
Our Office learned of this lawsuit at or near the time it was filed.
In November 1998, Harold Beck filed a complaint with the Supreme
Court alleging conflicts of interest on my part. The Supreme Court
returned this complaint as inadequate to support action by the Court.
Our Office learned of this complaint at or near the time it was filed.
Also in November 1998, Barry Weinstein filed a lawsuit, Weinstein
v. Hatch, Civ. No. 98-8119, in the U.S. District Court for the Southern
District of New York suing all lawyers who are Members of Congress and
me, alleging that it is unconstitutional for lawyers to be Members of
Congress. This lawsuit remains pending. Our Office learned of this
lawsuit at or near the time it was filed.\3\
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\3\ It appears that Mr. Weinstein attempted to file this lawsuit in
July but refused to pay the required filing fees. On November 9, 1998,
the Supreme Court of the United States denied an application for
injunctive relief allowing Mr. Weinstein to proceed without paying the
fees. See Weinstein v. Starr, 119 S. Ct. 442 (1998) (mem.). Our Office
was not aware of this aspect of the litigation until the Supreme Court
ruled.
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Other Matters
In April 1996, Senator J. Bennett Johnston asked the Special
Division of the U.S. Court of Appeals for the District of Columbia
Circuit to remove me for conflicts of interest. On April 30, 1996, the
Special Division advised Senator Johnston that it lacked the power to
remove independent counsels. Our Office learned of this complaint at or
near the time it was filed.
Beginning in February 1998, this Office was engaged in litigation
in the U.S. District Court for the District of Columbia over a grand
jury subpoena issued to Francis D. Carter. (Misc. No. 98-68) In the
course of this litigation, Mr. Carter and Monica S. Lewinsky made
several allegations of misconduct by our Office. On April 28, 1998,
Chief Judge Norma Holloway Johnson issued an opinion thoroughly
addressing a variety of issues. The opinion speaks for itself. Our
Office learned of Mr. Carter's and Ms. Lewinsky's allegations at the
time they filed the pleadings containing those allegations.
It should be evident that there has been a great volume of
unfounded complaints against our Office. We have searched this Office's
records and I have searched my recollection. It is always possible,
however, that some investigations, actions, or inquiries have escaped
our attention.
Questions from Representative Hutchinson
Do you believe John Huang is a relevant witness to the referral you
submitted to Congress on the issue of a pattern of conduct described in
Pages 4-9 of the Referral?
It is my understanding that the Committee has decided not to pursue
this line of inquiry. For that reason, and because of the sensitivity
of this matter and out of deference to the Department of Justice's
ongoing criminal investigation, we believe it would be unwise to
express an opinion on this matter.
Questions from Representative Barr
[C]oncerning the applicability of 18 U.S.C. 201 [does this]
constitute [] . . . substantial and credible evidence of impeachable
offenses?
I believe that this question is now moot because the four articles
of impeachment that are currently before the Committee do not include
charges directly relating to bribery or 18 U.S.C. Sec. 201.
[C]oncerning the Filegate case [have] any of the following persons
. . . been interviewed by the Independent Counsel's Office and/or
testified before a grand jury . . .: Mac McLarty, Terry Good, Linda
Tripp, William Kennedy, and James Carville?
In connection with our FBI Files investigation, this Office
questioned Mr. Good, Ms. Tripp, and Mr. Kennedy. We have questioned Mr.
McLarty on matters unrelated to our FBI Files investigation and
reviewed his civil testimony on the FBI Files matter. We have never
interviewed Mr. Carville.
[W]hether or not . . . the Filegate matter involved any violation
of the federal Privacy Act?
The jurisdiction of this Office does not extend to the prosecution
of Class B or C misdemeanors or infractions. Therefore, violations of
the Privacy Act, standing alone, are not within the jurisdiction
assigned to this Office, as violations of the Act are misdemeanor
infractions of federal law.
Questions from Representative Scott
Earlier today, at the Committee's request, we submitted a response
to Representative Scott's questions. We now supplement that response:
Considering that the Federal Rules of Criminal Procedure authorize
only the grand jury foreperson (or in his absence, the deputy
foreperson) to swear a grand jury witness, under what authority, if
any, do you assert that President Clinton was duly sworn by a Mr.
Bernard J. Apperson of your office (Mr. Apperson was not a member of
the grand jury) since Mr. Apperson had no authority to swear the
witness?
The factual and legal premises of the question are both inaccurate.
First, as reflected in both the official transcript and on videotape,
the oath was administered by Elizabeth Eastman, Notary Public for the
District of Columbia, a certified court reporter, duly authorized to
administer oaths. 5 U.S.C. Sec. 2903(c)(2). Second, although Rule 6(e)
authorizes the foreperson of the grand jury to administer oaths,
stating that they ``shall have the power'' to do so, the Rule does not
restrict that authority to administer oaths to the foreperson.
We understand that the unofficial transcript published by the
Washington Post, which erroneously reflected that the oath was
administered by an employee of this Office, has since been corrected on
the Post's website.
Since initially responding, I have been told of Representative
Scott's statement during the hearings that Congress did not receive the
``official'' transcript of the President's testimony. Congress did
receive the official transcript of the President's testimony on August
17, and that transcript clearly reflects that the oath was administered
by Ms. Eastman. House Doc. 105-311, at 659 (``I, Elizabeth A. Eastman,
the officer before whom the foregoing proceedings were taken, do hereby
certify that the witness whose testimony appears in the forgoing was
duly sworn by me . . . .'').
Representative Scott also mentioned United States v. Prior, 546
F.2d 1254 (5th Cir. 1977), but I believe he misconstrues the case,
equating the argument of the defendant with the holding of the Court.
The Court found that, as a factual matter, the jury was entitled to
conclude that the defendant had been sworn in by the grand jury
foreman. The Court nowhere addressed the legal issue raised by
Representative Scott.
Moreover, the law is clear that ``[n]o particular formalities are
required for there to be a valid oath. It is sufficient that, in the
presence of a person authorized to administer an oath, as was the
notary herein, the affiant by an unequivocal act consciously takes on
himself the obligation of an oath, and the person undertaking the oath
understood that what was done is proper for the administration of the
oath and all that is necessary to complete the act of swearing.''
United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983); accord
United Stated v. Chu, 5 F.3d 1244, 1247-48 (9th Cir. 1993). Any
suggestion that the oath administered to President Clinton was somehow
invalid is, with all respect, simply wrong.
Respectfully,
Kenneth W. Starr,
Independent Counsel.