[Congressional Record Volume 144, Number 106 (Friday, July 31, 1998)]
[Senate]
[Pages S9542-S9544]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     THE PRESIDENT'S OATH OF OFFICE

  Mr. ASHCROFT. Mr. President, the oath of office taken by the 
President of the United States is majestic and simple; as a matter of 
fact, it is eloquent. The President simply swears that he will 
faithfully execute the office, the highest office of the land, and that 
he will preserve, protect and defend the United States Constitution.
  In its enumeration of his duties, the Constitution of the United 
States directs that the President ``take care that the Laws be 
faithfully executed.'' So the President is directed by the Constitution 
to ``take care that the Laws be faithfully executed.'' The core values 
of American self-government are concentrated in the Presidency.
  Do we expect the President of the United States to be a patriot? Of 
course. Not only do we expect that from the structure of our 
government, we have grown to expect it because that has been 
established as a precedent by President after President after 
President.
  Do we expect the President to love freedom? To serve the people 
rather than to serve himself? To act with respect for the rule of law? 
To uphold the idea in America that there are no kings, that the highest 
rank in this culture is the rank of citizen? To put the institution of 
the Presidency above his own personal interests? I think it is fair to 
say that all of us would respond to those inquiries with a resounding 
``Yes.'' We do expect that. We have high expectations.
  Do we expect the President to be truthful? Yes. To keep his solemn 
oath of office? Yes. Certainly. These are qualities--the love of 
country, the commitment to public service, the obedience and supremacy 
of the law--that we expect in the behavior of the President. He or she 
is to be a national model for honesty, integrity, and respect for the 
law.
  It has been shocking to me that defenders of President Clinton have 
begun to suggest, however, that such is not the case, that our 
aspirations are without foundation, that somehow we are dreaming an 
impossible dream to think that the President would be a model. Indeed, 
we are told he is not even responsible for telling us the truth. Some 
of his defenders have begun to suggest that lying under oath can be 
acceptable conduct in a President or that the President is generally 
above the law and that the President would not need to honor, for 
instance, a lawful subpoena to a grand jury--the idea that somehow the 
President's power is so substantial that the President would not have 
to respond in the event that he were called.
  Jack Quinn, former White House counsel and a friend of many in this 
Chamber, argues in the pages of the Wall Street Journal that the 
President simply is not the subject of law in the same way as other 
citizens in an article entitled ``Clinton Can Avoid the

[[Page S9543]]

Starr Chamber.'' He argues that the President does not have to comply 
with a grand jury subpoena.
  As new evidence comes to light, all the President's men work to keep 
America in the dark. And I believe that is wrong. I believe the concept 
of self-government carries with it an implicit need of citizens to know 
what is happening in government, what the circumstances are, what the 
conditions are. And certainly if a person is called upon by a part of 
our Government to provide truthful testimony, the failure to do so is a 
very serious offense.
  I believe that perjury is unacceptable conduct and that it is an 
impeachable offense. How can it be otherwise? It is not possible to--
and I am quoting the Constitution--``take care that the Laws be 
faithfully executed'' while deliberately slighting the law against 
perjury. It is that simple.
  I, for one, am fascinated by the prevailing conventional wisdom that 
Presidential perjury would be harmless error, while suborning perjury 
or obstructing justice would be much worse and an impeachable offense.
  The suggestion is shocking--that somehow it is OK for the President 
to lie but it would not be OK for him to tell someone else to lie, that 
the act itself would be OK and permissible, but telling someone else to 
do it would be an infraction. That is an utterly false dichotomy.
  Since when is it worse to try to get someone else to lie than to tell 
a lie yourself? Is it worse to try to convince someone else to steal 
than to steal yourself? Is it worse to convince someone else to cheat 
on their taxes than to cheat on your own taxes?
  Being under oath and lying under oath or convincing someone else to 
tell a lie under oath is criminal in either case and irreconcilable 
with the President's constitutional oath to take care that the laws of 
the land be respected, honored, and enforced.
  Terrible events appear to be engulfing the Clinton Presidency. The 
investigation of the President raises fundamental questions about the 
standards we should expect from a Chief Executive of the United States. 
If the House of Representatives begins an impeachment inquiry, the 
momentous machinery of the Constitution will raise the issue of 
Presidential conduct and misconduct to their highest levels.
  Because the prospect of Presidential impeachment seldom troubles this 
blessed Nation--and we can be grateful for that--there are fundamental 
questions about the President's standing under the law that have never 
been answered definitively.
  If we had impeachment processes going on every month, month by month, 
year by year, in virtually every Presidency, we would have a great body 
of law that told us exactly how things are to be done in this 
situation. That is how the rules of behavior in the legal system are 
developed, through precedent and experience. But we really do not have 
major impeachment experience.
  As a matter of fact, there has been one President who has undergone 
that kind of inquiry in the Senate, and that was well over 100 years 
ago. Moreover, in more recent times, when this body has considered 
impeachments for a variety of other, lesser officials, we have not 
conducted full-scale impeachment proceedings. So there are lots of 
issues that surround the potential of illegal activity by a President 
that have not been answered; some probably have not even been asked.
  It is time to clarify these issues, I believe, before the House 
addresses the momentous decision of whether to open a formal inquiry. I 
think the questions need to be answered, and I believe that we can 
begin this important discussion about the President's obligations to 
comply with the normal criminal process.

  I think we can begin to develop an understanding of how this should 
be conducted by holding hearings over the recess in the Constitution 
Subcommittee of the Senate Judiciary Committee. I believe we can invite 
scholars in to answer questions about whether the President is subject 
to prosecution; whether, indeed, the President is responsible for 
appearing before a grand jury in response to a subpoena; what level of 
conduct the President must compare to; what standard can he be measured 
by; in the absence of measuring up, are there things that can, should, 
or ought to be done?
  I might point out that very shortly we will be called to reevaluate 
the independent counsel statute which provides a basis for individuals 
being investigated when the normal investigatory process would be 
replete with conflicts of interest.
  I noted with interest that the assistant majority leader was on the 
floor here in the Senate Chamber earlier today talking about the fact 
that the Attorney General has been implored by the Director of the FBI 
to appoint an independent counsel to look into, investigate, and 
prosecute possible violations of the criminal laws regarding political 
contributions. Not only has she been asked to do that by the Director 
of the FBI, she has been asked to do that by the person she appointed 
in the Justice Department to look into the matter. His recommendation 
to her is, according to the reports is, that she ought to appoint an 
independent counsel, yet she has refused. I noted that the assistant 
majority leader indicated that her refusal and her continued refusal 
would become the basis for her resignation, in his view.
  I think all of these serious questions about the accountability of 
high-ranking executive branch officials beg resolution and they demand 
discussion. It is important that we resolve them and begin to have a 
full awareness of these potentials as we move toward the responsibility 
of reauthorizing or otherwise adjusting or dealing with the concept of 
the independent counsel's office in the independent counsel statute.
  Perhaps there is a single open question that is more demanding than 
any other of the open questions, and is certainly more relevant now, it 
appears, more than at any other time in history: whether a sitting 
President is subject to the regular compulsory criminal process.
  I think, as I indicated, former White House counsel Quinn's article 
in the Wall Street Journal says no. When we mean regular criminal 
process, we have to say up to and including prosecution. So the 
question becomes, Can a sitting President be prosecuted if he violates 
the law, or is the sitting President above the law? Or is the only 
remedy to remove him from office through the impeachment process, and 
then would he be liable for prosecution or is he liable for prosecution 
if the Congress decides to sit on its hands?
  You can imagine a situation in which a President was favored by a 
group of individuals in the Congress who simply didn't want to get 
involved or were allies of the President politically who said, ``No, 
there are a sufficient number of us to stop an impeachment procedure, 
so we won't allow it to happen.'' If the President were to persist in 
criminal behavior, it seems to me, there is a question in that setting 
about whether there is any remedy. Would a President be subject to 
prosecution if the House turned its back on obvious--obvious--criminal 
infractions, simply saying, ``We don't want any part of an impeachment 
proceeding?''
  There is a pretty high level of political discussion now that says, 
even in the President's opposition party, that says the Republicans 
might not want this President to leave office to give his Vice 
President a jump-start on the next election. That is something that I 
don't buy. I don't believe in that. I believe that if there has been a 
serious infraction that merits impeachment, the inquiry must take 
place. Even if it is on the last day and the last 20 seconds of the 
Presidential term--Americans ought to do what is right. But there is a 
lot of discussion in the culture now that even an opposition party 
might not want to remove a particular official. So if there isn't any 
other remedy, does that mean that a person is free to violate the law? 
I think these are important questions.
  The question, then, is whether a sitting President is subject to the 
regular compulsory criminal process--up to and including prosecution--
or whether impeachment is the only avenue available for addressing 
Presidential wrongdoing?
  It is a serious question. It is a question that has been commented on 
by a number of individuals hypothetically in the past. In commenting on 
the options available to address Presidential crimes, many people seem 
to proceed on the assumption that the impeachment process is the 
exclusive avenue

[[Page S9544]]

for addressing Presidential misconduct. Judge Bork reached this 
conclusion many years ago when the Justice Department considered the 
options for prosecuting Vice President Agnew. But Judge Bork's view is 
hardly the unanimous view of legal scholars.
  For example, Professor Gary McDowell has argued that the independent 
counsel does have the capacity to indict a sitting President. In the 
Wall Street Journal of March 9, 1998, Professor McDowell, who is a 
director of the Institute of the United States Studies at the 
University of London, says yes, in a rather well-written piece, yes, 
you can indict the President. Jack Quinn says, ``Clinton can avoid the 
Starr Chamber,'' basically saying you can't.
  Perhaps the most well-known constitutional scholar in America with 
whom I sometimes agree and with whom I often disagree is Professor 
Larry Tribe. Now, Lawrence Tribe, in his ``American Constitutional 
Law'' text, admits that the question must be regarded as an open one, 
saying that, with respect to whether or not you can proceed against a 
President in a criminal proceeding, ``the question must be regarded as 
an open one, but the burden should be on those who insist that a 
President is immune from criminal trial prior to impeachment and 
removal from office.''
  Interesting. That is one of the most noted constitutional legal 
scholars in the United States saying that while he thinks the question 
is an open one, that those who want to say that there is immunity here 
have the real burden of making the case.
  This is a constitutional question of the highest order. The answer 
provides insights into whether the President is subject to the criminal 
laws applicable to the citizenry of America. The answer also informs 
whether a popular President--or a President whose party has a secure 
congressional majority or a President whose value to other individuals 
in office would make them reluctant to involve themselves in 
impeachment proceedings--could ever be held accountable for violations 
of the law.
  Perhaps early in a term a President is alleged to have done 
something, does the statute of limitations run, and if it runs before 
the term is over and the Congress decides to turn its head, does that 
mean there is absolutely no requirement that the President adhere to 
the law, respond to the law, be involved and uphold the law in the same 
way as other citizens are?
  I think these questions are very serious questions, and they are 
questions that demand resolution. I think an inquiry is important to 
begin the process of resolving these questions.
  There are also important subsidiary questions about whether the 
President is subject to a criminal process that should be examined. On 
August 17, the Nation will witness the spectacle of a sitting President 
providing grand jury testimony.
  He is going to do it pursuant to a negotiated agreement. The 
President will appear, but he is going to be available for questions 
for a single day and will have the benefit of legal counsel. By doing 
so, by agreeing, he has deferred a legal resolution of these issues. I 
am, frankly, happy that the President has decided, at least in this 
measure, to make himself available. This negotiated agreement for the 
President to appear for a single day has deferred a confrontation over 
the ultimate constitutional question of whether a sitting President 
must comply with a grand jury subpoena. But this question may not go 
away.
  In the event that a single day proves insufficient, for example, to 
resolve all the questions that Judge Starr has for the President, this 
unresolved question could resurface.
  The importance of this question also goes beyond the context of this 
particular dispute over alleged Presidential perjury, or a series of 
other alleged Presidential acts relating to perjury and obstruction of 
justice. I have here an opinion piece by one of President Clinton's 
former White House counsels, Jack Quinn--to which I have referred 
already--in which Mr. Quinn argues that the President is not obligated 
to comply with the ordinary criminal process and is free to ignore a 
grand jury subpoena--to simply say: I don't participate in enforcing 
the law. If I have information about a crime that might have been 
committed, or evidence about it, I don't have to do that, I am the 
President.
  That is a sweeping proposition, and I think it is one that the 
Congress should examine, particularly as we move toward the possible 
reauthorization of the Independent Counsel Act. I plan to bring in a 
number of constitutional scholars to address these critical issues and 
these yet unanswered questions.
  Frankly, I do not mean to prejudge these issues. However, they are 
too important to leave unexamined. The answers to these questions may 
well inform the progress of Judge Starr's investigation and shape the 
difficult question of what the House should do if a report from Judge 
Starr does not arrive until the eve of adjournment.
  The events of the past 6 months have raised many novel questions 
about the scope of the powers and privileges of the President. These 
are important questions and they are not easy to resolve. And in our 
system of separated powers, the answers to these questions also 
determine the scope and the power of Congress, and they will also 
determine, in some measure, the scope and the power of protection 
offered to the people. The answers will determine whether the people 
deserve to be protected by virtue of prosecuting those who offend the 
law even if Congress chooses not to be involved in proceedings which it 
had the opportunity to pursue, like impeachment. Congress cannot be a 
mere bystander in these debates. Congress has an important 
responsibility to use its investigatory functions to shed light on 
these important and unresolved questions. It is time for Congress to 
stop looking at the polls and to start looking at the Constitution.
  I hope these hearings will provide important insights into the extent 
to which the President must comply with criminal process. I believe 
every other American has the responsibility to comply, and it is a 
serious question to determine whether or not the President has the 
responsibility of being a citizen, as well as being the President. So I 
look forward to sharing this discussion with other members of the 
Constitution Subcommittee and to chairing these hearings to help 
clarify these issues at a time when we need this clarity, either in 
reformulating our view on the independent counsel statute, or as it 
relates to events that are unfolding at the other end of Pennsylvania 
Avenue. I believe that a discussion of these issues will advance our 
capacity to understand the appropriate balance that is necessary for 
the maintenance of freedom and the responsibilities that come with the 
privileges that we enjoy as free people.
  I yield the floor.
  Mr. GRAMS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota, Mr. Grams, is 
recognized.
  Mr. GRAMS. Mr. President, I ask unanimous consent to be able to speak 
for as much time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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