[Congressional Record Volume 145, Number 11 (Friday, January 22, 1999)]
[Senate]
[Pages S869-S892]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                                 prayer

  The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer:
  Spirit of the living God, fall afresh on us. We need Your strength. 
The wells of our own resources run dry. We need Your strength to fill 
up our diminished reserves--silent strength that flows into us with 
artesian resourcefulness, quietly filling us with renewed power. You 
alone can provide strength to think clearly and to decide decisively.
  Bless the Senators today as they trust You as Lord in the inner 
tribunal of their own hearts. You are Sovereign of this land, but You 
are also Sovereign of the inner person inside each Senator. May these 
hours of questions bring exposure of truth and resolution of 
uncertainties. O God of righteousness and grace, guide this Senate at 
this decisive hour. You are our Lord and Savior. Amen.
  The CHIEF JUSTICE. Senators may be seated. The Sergeant at Arms will 
make a proclamation.
  The Sergeant at Arms, James W. Ziglar, made proclamation as follows:

       Hear ye! Hear ye! Hear ye! All persons are commanded to 
     keep silent, on pain of imprisonment, while the Senate of the 
     United States is sitting for the trial of the articles of 
     impeachment exhibited by the House of Representatives against 
     William Jefferson Clinton, President of the United States.


                              The Journal

  The CHIEF JUSTICE. If there is no objection, the Journal of 
proceedings of the trial are approved to date.
  Pursuant to the provisions of Senate Resolution 16, the Senate is 
provided up to 16 hours during which Senators may submit questions in 
writing directed to either the managers, on the part of the House of 
Representatives, or counsel for the President. The Chair recognizes the 
majority leader.
  Mr. LOTT. Thank you, Mr. Chief Justice.


                           Order of Procedure

  Mr. LOTT. This afternoon, the Senate will begin the question-and-
answer period for not to exceed 16 hours, as provided in Senate 
Resolution 16. I have consulted several times about this procedure with 
Senator Daschle and others, and we have determined that the majority 
will begin the questioning process with the first question, and we will 
then alternate back and forth.
  As I noted yesterday, this has not been done in quite a while, so we 
will just have to go forward in a way that we feel is fair and 
comfortable. We ask that you give the benefit of the doubt to us in how 
we send the questions up to the Chief Justice. Senator Daschle and I 
will try to make sure that the time stays pretty close to even as we go 
through the day. Of course, the Chief Justice, I am sure, will make 
sure the deliberations and the answers are fair. We hope the answers 
will be succinct and that they will respond to the questions.
  One question that has arisen from Senators on both sides is, can we 
direct a question to both sides, the White House counsel and the House 
managers, simultaneously, and the answer is no. Under our rules, we 
will direct the question to one side or the other, and our questions 
for either side may go to either one of the parties, but only one can 
answer that question.
  Of course, there is the possibility for a follow-up question that 
might be directed to one side or the other. We will just deal with that 
as we go forward.
  I expect, for the information of all Senators, that we will go 
approximately 5 hours today. I don't know how many questions we can get 
done in an hour, but I suspect by 6 o'clock on Friday we will have 
exhausted a series of questions that will entitle us to a break at that 
point. But, again, we will just have to see how we feel about it. We 
would not stop, obviously, in the middle of a question.
  We will resume again on Saturday at 10 a.m., alternating between both 
sides. The schedule at this point is undecided. We need to see how many 
questions are left that Senators really feel need to be asked and, 
again, we will have to see how the day progresses.
  I did have Senators come up to me yesterday and talk to me about we 
need some reasonable limit on that. But I am thinking in general terms 
of not going beyond 4 o'clock on Saturday. We will converse and make 
those announcements after consultation as we go forward tomorrow or 
during the day even tomorrow.

[[Page S870]]

  I hope we can complete our questioning period by the close of 
business tomorrow, but if we go with the times I basically mentioned, 
we are talking about 10 hours, not 16. So we will have to consult and 
determine if we ask the basic questions or if we want to continue it 
later or even over on Monday.
  I believe, Mr. Chief Justice, that completed the explanation that I 
wanted to give at this time.
  I do have the first question prepared to send to the Chief Justice, 
but I thought perhaps he had some further business he might want to 
address before I did that.
  The CHIEF JUSTICE. Yes. I would like to advise counsel on both sides 
that the Chair will operate on a rebuttable presumption that each 
question can be fully and fairly answered in 5 minutes or less. 
(Laughter.)
  Mr. LOTT. Mr. Chief Justice, I do send the first question to the 
desk.
  The CHIEF JUSTICE. Senators Allard, Bunning, Coverdell and Craig ask 
the House managers:

       Is it the opinion of the House Managers that the 
     President's defense team, in the presentation, 
     mischaracterized any factual or legal issue in this case? If 
     so, please explain.

  Mr. Manager BRYANT. Mr. Chief Justice, distinguished colleagues, and 
Members of the Senate, there are--first of all, let me thank you for 
the opportunity to respond to questions. We hope we can do that in a 
succinct manner today.
  There are a number of mischaracterizations in statements that we 
disagree with that the President's defense team made. I will not 
attempt to cover all of these. And I would like to highlight just a few 
of these, and perhaps might, in a short manner, exceed the rebuttal 
presumption of 5 minutes.
  Mr. Craig made the argument on behalf of the President that this is a 
lot about an oath versus oath perjury case. Article I is the perjury 
allegation--one word against another person's word, ``he said, she 
said.'' However, we would submit that there was not discussed in their 
presentation the fact that there is ample corroboration which is 
provided for under the law as it being necessary.
  But we believe factually there was much corroboration; that is, 
another person or other evidence to support the fact that the President 
did commit the perjury, and particularly those aspects of the perjury 
charge that deal with the personal relationship that Ms. Lewinsky and 
the President had.
  Very clearly, White House records and phone logs, along with Ms. 
Lewinsky's incredible recollection of particular names and events, and 
the circumstances surrounding these particular occasions, that have 
already been highlighted in the past--and we all know about those types 
of telephone conversations. And she was very clear in the facts. The 
people have all corroborated her on her presence in the White House at 
certain times.
  No. 2, the Secret Service testimony that placed her inside the Oval 
Office, on occasion alone; the fact that there have been 
contemporaneous statements made by Ms. Lewinsky describing the details 
of this relationship. And as we all know, the law permits this 
contemporaneous statement to, in this case, at least eight friends and 
two professional counselors detailing the particular relationship while 
it was ongoing.
  The blue dress is very clearly corroboration, and the DNA testing 
that resulted from that. Also, the transfer of Ms. Lewinsky from the 
White House, and the later surreptitious efforts with Ms. Currie to 
sneak her back into the White House, again, indication that efforts had 
been made to move her, to relocate her, away from the President to 
protect him from those circumstances.
  Also, the President's prepared statement in the grand jury is another 
example that was not mentioned. And in particular, I highlight the 
statement that he made that would lead you to believe that this 
relationship evolved over a period of time, and that being that he was 
sorry that what had started out as a friendship turned into this type 
of relationship, where, in fact, Ms. Lewinsky's testimony is very clear 
that that relationship began immediately, the very first day that he 
actually spoke to her.

  Mr. Ruff's statement that the managers' case was misleading is also 
incorrect, I believe. He used words like ``fudging the facts,'' ``a 
witches' brew,'' and ``be wary of a prosecutor who feels like he must 
deceive the court.'' And this comes to somewhat of a surprise to many 
of us at this table who know that Mr. Ruff is familiar with the facts 
of this case.
  And just last month, when he testified before the Judiciary 
Committee, he said: I have no doubt that the President walked up to 
that line that he thought he understood. Reasonable people--reasonable 
people--and you may have reached that conclusion that he could have 
crossed over that line and that what for him was truthful but 
misleading or nonresponsive or misleading and evasive was in fact 
false.
  Now, he didn't tell you in his presentation that just a month ago he 
took the position that reasonable people can disagree, and yet before 
this Senate, and the audience that we have watching, he asserts that 
anyone who would accuse his client of perjury is guilty of ``fudging 
the facts,'' ``brewing a witches' brew,'' and ``deception.'' And even 
Mr. Craig, unfortunately, borrowed many of those same words in that 
characterization. It may be good theater, but it is simply not the case 
that these managers are engaged in that type of practice before the 
Senate and the American people.
  White House Counsel Cheryl Mills spoke in a similar manner and tone 
to this House about inconvenient and stubborn facts--oh, those stubborn 
facts. In her meticulous presentation, she passed over--she completely 
missed--the second occasion wherein President Clinton attempted to 
coach Ms. Currie.
  Did anyone hear about the second event? As carefully as she tried to 
make innocent the wrongful effort of the President to tamper with the 
potential witness, she just as carefully skirted the entire similar 
episode 2 or 3 days after the first one where he again tampered with 
her testimony. According--according to Ms. Currie--he spoke with her, 
just recapitulating. Remember that in our presentation?
  Likewise, in her review of witness tampering, she mischaracterized 
the law--the law--stating that a threat--an actual threat was required. 
18 U.S.C. 1503 states that obstruction of justice occurs when a person 
corruptly endeavors to influence the testimony of another person. And 
``corruptly'' has been interpreted by the District Court here in D.C. 
to mean acting for an improper purpose.
  And, clearly, this was an improper purpose when the President was 
trying to get her to testify falsely, but a threat is not a part of the 
law and not needed.
  And I will just quickly, if I might, just mention two more quick 
ones.
  Mr. Ruff stated the President gave the same denial to his aides that 
he gave to his country and family. You recall him specifically saying 
that he just has said nothing different to the American public and his 
family that he told the aides that we talked about--John Podesta, 
Sidney Blumenthal.
  Well, that's not right. ``He told''--the President told Mr. Podesta--
and this is Mr. Podesta talking--``He told me that he never had sex 
with her and that he never asked--you know, he repeated the denial. But 
he was extremely explicit in saying he never had sex with her in any 
way whatsoever, that they had not had oral sex.''
  And Blumenthal--Mr. Blumenthal--he told Mr. Blumenthal an entirely 
different story, that ``Monica Lewinsky came at me and made a sexual 
demand on me. [And I, the President,] rebuffed her.'' He said that 
``I've gone down that road before [and] . . . caused pain for a lot of 
people and I'm not going to do that again.''
  ``She threatened him.'' Ms. Lewinsky threatened the President. And 
``[s]he said that she would tell [other] people [that she] had an 
affair, that she was known as a stalker among her peers, and that she 
hated [that], and if she had an affair . . . [with the President] she 
wouldn't be . . . anymore.''
  That is not the story that he told the American people and that he 
told his family. These are embellishments that are very important, 
because he anticipated that they would go into the grand jury and 
repeat those misstatements.
  And finally, the affidavit of Monica Lewinsky. White House defense 
lawyers spoke so eloquently about the procurement of this affidavit--as 
he glided

[[Page S871]]

through how the President believed that Monica Lewinsky could have 
filed a truthful affidavit while still skirting their sexual 
relationship sufficiently to--sufficiently to--avoid testifying in the 
Paula Jones case.
  This is an important issue. As it was specifically raised in the 
answer before this Senate, the President's lawyers brought this 
statement into this Senate as part of their answer that he could have 
advised her that she could have filed an affidavit that would have been 
truthful while still at the same time denying a sexual relationship 
sufficiently that she would not be called as a witness.
  I know opposing counsel makes light of the hairsplitting and the 
legal gymnastics that people have talked about here, but that is an 
incredible statement that you can do the twister enough to go into a 
deposition where the purpose of being there is to discover this type of 
information, who you might have had an affair with, and have her tell a 
truthful affidavit and still not to be able to testify.
  Had she told a truthful affidavit, she would have been immediately 
called. Plus, the President was given an opportunity by Ms. Lewinsky to 
review the affidavit.
  Remember the statement that he didn't need to, he had seen 15 just 
like it? If he had that ``out'' for her where she could have told the 
truth and still not been able to testify, don't you think he owed it to 
her to cause her not to have to commit perjury in that affidavit--which 
she did--not to have to commit a crime? Wouldn't he have shared that 
with her if he had that information at that time?
  I suggest that he didn't. I have others that I would like to talk to, 
but in the interest of time and fairness I will stop my presentation at 
this point.
  I thank the Senate.
  Mr. DASCHLE. Mr. Chief Justice.
  The CHIEF JUSTICE. I recognize the minority leader.
  Mr. DASCHLE. Could I inquire as to the length of time that response 
took.
  The CHIEF JUSTICE. Approximately 9 minutes.
  Senator Sarbanes asks:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question from Senators Allard, Bunning, Coverdell 
     and Craig?

  Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
  It may be that I will need to call on some of my colleagues to be of 
assistance here, but let me begin, and we will strive mightily to stay 
within the rebuttal of 5 minutes.
  Mr. Manager Bryant began by suggesting that there really is 
corroboration on the key issue that he focussed on, which as you know, 
is the nature of the specific details of the relationship between the 
President and Ms. Lewinsky. And he suggested that among the 
corroborating matters that he would point to were her recollection of 
events, which is alleged to be detailed; records reflecting that she 
was, indeed, in the White House on particular days; Secret Service 
records; DNA testing. None of those have anything to do with the 
essential issue that Congressman Bryant raised, because nobody disputes 
the fact that Ms. Lewinsky was in the White House engaged in 
inappropriate conduct with the President on a particular day.
  The only point that I think the manager raises that is new and needs 
to be addressed is this notion that contemporary, consistent statements 
made to third parties about these events are somehow corroborative of 
Ms. Lewinsky's testimony in this regard. And as all of you who had the 
pain of suffering through an evidence course will know, or have had the 
pain of trying lawsuits in which this issue arises, so-called prior 
consistent statements are not, in fact, viewed as some corroborating 
evidence that can be introduced by the prosecutors in this Senate; for 
they know, and I am sure those of you who suffered through these pangs 
know, as well, that the law rejects the notion that merely because you 
tell the same story many times it is corroborative of the underlying 
credibility of the witness' version, and that there are only certain 
very limited areas in which prior consistent statements are, in fact, 
admissible.
  A couple of others and I will turn this briefly over to Ms. Mills.
  Manager Bryant suggests that I have somehow gone too far in 
suggesting that the prosecutors here have in my words ``engaged in 
fudging.'' I have never suggested that the entire presentation is so, 
and I made very clear in my comments to the Senate the other day the 
specific examples which I think we documented quite fully. But beyond 
that, let me go back to his reference to my earlier testimony before 
the House Judiciary Committee in which I did, indeed, in response to 
questions, comment that the President may well have walked up to the 
line believing he didn't cross it, but that reasonable people might 
conclude otherwise.

  The only problem with that example, as broached by Mr. Manager 
Bryant, is that I was talking there--and the record is very clear--I 
was talking about his testimony in the Jones deposition which, as 
everyone in this room will fully understand, is not before you because 
the House of Representatives specifically decided that the President's 
testimony in the Jones deposition was not a basis for impeachment.
  With that, without having used, I hope, all of my time, Mr. Chief 
Justice, I will allow Ms. Mills, if she would, to come forward and 
respond specifically to the point raised with respect to her 
presentation.
  Ms. Counsel MILLS. Thank you.
  I just want to address briefly two issues that the House managers 
raised. With regard to the statute on obstruction of justice, with 
respect to witness tampering, the House managers focused on 1512, with 
respect to Ms. Currie which does require a threat or intimidation and, 
indeed, specifically addressed that--they wanted to focus on 1512--when 
they were addressing her and the situation where the President spoke 
with her.
  With regard to 1503, though, to the extent that the House managers 
suggest that the President's actions and his conversation with Ms. 
Lewinsky violated 1503, I think probably you all might recall from my 
presentation that we discussed the Aguilar case in which it is clearly 
necessary that you have a nexus between the actual conduct and the 
official proceeding that would be going forward. In that case, we had a 
judge who lied to an FBI agent who indicated that he was going to--that 
this might, might come up in a grand jury proceeding, and Mr. Chief 
Justice, in his opinion, indicated that was insufficient to find the 
nexus that was necessary to violate 1503.
  And if you all have my package, you can look back. I provided you 
with a specific quotation. So in this instance, we clearly wouldn't 
have the nexus between the President's conversation with Ms. Currie, 
who was not yet a witness. There was no suggestion that she was going 
to be a witness in the Jones case; indeed, no one even mentioned that 
fact to him, as you actually did have in Aguilar.
  In addition, with regard to both statutes, the specific intent is not 
fulfilled. That is something we spoke about when I gave my presentation 
before.
  With regard to the President's conversation with Ms. Currie, which 
happened on the 18th and again on a subsequent day, in that instance it 
also happened prior to all of the media attention and other matters 
that came out. So in effect, all of the same issues apply because there 
was no--at that point--no indication that the independent counsel was 
involved in this matter, and the President still was concerned about 
the Jones proceeding; indeed, he was concerned that the media attention 
would be significant, and he was accurate as it began to grow and grow.
  Thank you.
  Mr. LOTT. Mr. Chief Justice, we send our next question to the desk.
  The CHIEF JUSTICE. Senators Enzi and Coverdell ask the House 
managers:

       Please elaborate on whether the President's defense team 
     failed to respond to any allegations made by the House 
     managers.

  Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and gentlemen of 
the Senate, as to the areas that were not covered by the President's 
defense team, I think that my fellow Manager Bryant already mentioned 
one, but I thought it was significant that in the questioning of Ms. 
Currie, or the statements made to Betty Currie after the President's 
deposition on January 17 where he brought her into the office and he 
went through that series of questions--``I was never alone, right,''

[[Page S872]]

and that series of questions everybody is so familiar with, they 
discussed that primarily in the terms that she was not a witness. But 
during 3 days of presentation they never discussed the fact that it was 
2 days later that the same series of questions or statements or 
coaching were addressed to Ms. Currie.
  So the President's defense that, ``Well, I was just trying to refresh 
my recollection on the facts so I could respond to media inquiries,'' 
does not make sense in light of the fact that it was done on one day--
the series of questions. But Betty Currie testified that 2 days later 
she was called into the office, the same series of statements, 
declarations, coaching was made to her, and the only possible 
explanation for that is that the President was trying to make a very 
clear statement to her--``This is what I remember; this is what I want 
you to do,'' and for 3 days, for 3 days of presentations, the 
President's defense lawyers never, never mentioned that.
  Now, I want to come back to what Ms. Mills just said because this was 
a big issue in the presentation of Mr. Ruff. In fact, I have the quotes 
here. I hope that that will be turned over to you. But whenever Betty 
Currie was questioned, they say, well, she wasn't a witness. There was 
never any clue she was going to be a witness, that the Jones lawyers 
never anticipated she was going to be a witness, and that it was never 
put at all on the witness list. That's very significant.
  I just want to drive this point home. This is Mr. Ruff--talk about 
prosecutorial fudging; how about defense fudging? Mr. Ruff said this:

       Ms. Currie was neither an actual nor prospective witness.
       In the entire history of the Jones case, Ms. Currie's name 
     had not appeared on any witness list, nor was there any 
     reason to suspect that Ms. Currie would play a role in the 
     Jones case.
       Discovery was down to its final days.

  That was Counsel Ruff.

       Yet, in the days and weeks following the deposition, the 
     Jones lawyers never listed her, never contacted her, never 
     added her to any witness list.

  That was the presentation of Mr. Ruff, and it was also that of Ms. 
Mills. Yet, if you look at the facts in the Jones case, the deposition 
was concluded on January 17. There was a holiday on the 18th. In fact, 
on January 22, within 5 days of the deposition, a subpoena was issued 
for Betty Currie. Within 5 days, a subpoena was issued for Betty 
Currie, and, in fact, on the 23rd, there was a supplement to the 
witness list by the Jones lawyers, which included Betty Currie's name 
as 163. This was served on Mr. Bennett and the other lawyers for the 
President.
  In addition, I have--which I will distribute to you--the actual 
subpoena that was issued for Betty Currie, as I indicated, which was 
issued on January 22nd, and the proof of service in which Betty Currie 
was served as a witness in that case on January 27--the proof of 
service. So the statements by Mr. Ruff that there was never any 
indication that the Jones people knew she was going to be a witness is 
totally not within the record. In fact, it is clear that the subpoena 
was issued; it was served.
  Whenever that deposition was over of the President, both the 
President left there and the Jones lawyers left there knowing 
immediately that Betty Currie was going to be a witness. She had to be 
a witness, with the President asserting, ``ask Betty, ask Betty, ask 
Betty,'' so many times during that. That is why the President came back 
and had to deal with Betty Currie being a witness, and the Jones lawyer 
went out and immediately amended the witness list so as to do that, and 
then issued a subpoena, which was served on Betty Currie. That is the 
record. Those are the facts. We will distribute this to you.
  The CHIEF JUSTICE. Senator Levin asks White House counsel:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question?

  Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Let me respond very 
briefly to Manager Hutchinson's last remarks, because I owe him indeed 
an explanation and he is correct in one respect. I did not accurately 
reflect the fact that after the January 21 story in the Washington 
Post, the Jones lawyers did, in fact, attempt to track the entire 
independent counsel investigation. And I think Mr. Hutchinson will tell 
you, they indeed issued a long list of subpoenas. For that misleading 
statement, I apologize, and I trust we will hear equally candid 
assessments from the managers. But more importantly, let me return to 
the substance of that issue because it is important to note, without 
the chart being up there, that indeed, at the moment, which is the 
critical moment, when the President was talking about Betty Currie, 
whether it be on the 18th or on the 20th or 21st--the 21st, you 
remember, is when the story breaks. The answer is the same. He had no 
reason to believe at that stage--and that is the critical stage because 
that's what's in his mind and that is what you have to ask if you are 
talking about obstruction of justice or witness tampering--at that 
stage, he had no more reason to know that Ms. Currie was going to be a 
witness than he did, as we explained it, both I and Ms. Mills, in our 
earlier presentations.

  The fact that the Jones lawyers, once this story became a matter of 
public knowledge, which it did on the 21st, thereafter dumped a series 
of subpoenas and deposition notices literally in the closing days of 
discovery does not bear on the question of what was in the President's 
mind, which is the critical moment for testing his intent, at the 
moment when he first had his conversations with Betty Currie.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Senators Thurmond, Grassley, Chafee and Craig 
direct to the House managers:

       President Clinton has raised concerns about whether the 
     articles of impeachment are overly vague and whether they 
     charge more than one offense in the same article. How do you 
     respond to this concern?

  Mr. Manager CANADY. Mr. Chief Justice and Members of the Senate, I 
will be pleased to do my best to address this question.
  The President has made two claims against the forum in which the 
articles of impeachment have been drafted. I submit to you that neither 
of these claims has any merit, and I will be pleased to address both 
claims as briefly as I can.
  First, the President claims that the two articles of impeachment are 
vague and lack specificity and, therefore, prevent him from knowing 
what he has been charged with.
  Second, the President asserts that the articles are flawed because 
they charge multiple defenses in a single article. With respect to the 
first claim, it is clear in the President's trial memorandum and his 
presentation here that President Clinton and his counsel know exactly 
what he is being charged with. And I submit to you that if President 
Clinton had suffered from any lack of specificity in the articles, he 
could have filed a motion for a bill of particulars. He did not choose 
to do so.
  Moreover, articles of impeachment have never been required to be 
drafted with the specificity of indictments. After all, this proceeding 
is not a criminal trial. If it were, then we, as the prosecutors, would 
not only be entitled to call witnesses, but would be required to call 
them to prove our case. We would certainly not be put in the position 
of defending the appropriateness of witnesses.
  President Clinton wants all the benefits of a criminal trial without 
bearing any of its burdens. Impeachment is a political and not a 
criminal proceeding. That has been clear from the institution of this 
proceeding in our Constitution. As recognized by Justice Joseph Story, 
the Constitution's greatest interpreter during the 19th century, 
``Impeachment is designed not to punish an offender by threatening 
deprivation of his life, liberty, or property, but to secure the State 
by divesting him of his political capacity.'' Justice Story thus found 
the analogy of articles of impeachment to an indictment to be invalid. 
I quote what Justice Story had to say, which is directly pertinent to 
this question:

       The articles need not and indeed do not pursue the strict 
     form and accuracy of an indictment. They are sometimes quite 
     general in the form of the allegations, but ought to contain 
     certainty as to enable the party to put himself upon the 
     proper defense, and also in the case of acquittal, to avail 
     himself of it as a bar to another impeachment.

  Indeed Alexander Hamilton had commented on the same point in the 
Federalist. We have heard many references

[[Page S873]]

to Federalist number 65, and in this trial today I will refer once 
again to what Alexander Hamilton said in the Federalist on this 
particular point. There Alexander Hamilton stated that impeachment 
proceedings:

       . . . can never be tied down by such strict rules, either 
     in the delineation of the offense by the prosecutors, or in 
     the construction of it by the judges, as in common cases 
     served to limit the discretion of courts in favor of personal 
     security.

  By that, he means in criminal cases. I think this statement from 
Alexander Hamilton refutes the argument of the President's counsel 
directly.
  I also point out that unlike the judicial impeachments in the 1980s, 
President Clinton has not committed a handful of specific misdeeds that 
can be easily listed in separate articles of impeachment. In order to 
encompass the whole assortment of misdeeds that caused the House of 
Representatives to impeach the President, the Judiciary Committee 
looked to the more analogous case, that of President Nixon. In 1974, in 
the proceedings with respect to President Nixon, the committee also was 
faced with drafting articles of impeachment of a reasonable length 
against a President who had committed a series of improper acts 
designed to achieve an illicit end.
  The first article against President Nixon charged that in order to 
cover up an unlawful entry into the headquarters of the Democratic 
National Committee and to delay, impede, and obstruct the consequent 
investigation and for certain other purposes, he engaged in a series of 
acts such as ``making or causing to be made false or misleading 
statements to lawfully authorized investigative officers, endeavoring 
to misuse the Central Intelligence Agency, and endeavoring to cause 
prospective defendants and individuals, duly tried and convicted, to 
expect favored treatment and consideration in return for their silence 
or false testimony.
  The articles did not--I repeat ``did not''--list each false or 
misleading statement, did not list each misuse of the CIA, and did not 
list each respective defendant and what they were promised. That is the 
record. Anyone who is familiar with the Nixon case--President Nixon 
case--is familiar with those facts.
  In like fashion, the articles of impeachment against President 
Clinton charged him with providing perjurious, false, and misleading 
testimony concerning four subjects, such as sexual relations with a 
subordinate government employee, engaging in a course of conduct 
designed to prevent, obstruct, impede the administration of justice, 
which of course included four general acts, such as an effort to secure 
job assistance for that employee.
  I would submit to you that an argument can be made that the articles 
of impeachment against President Clinton were drafted with more 
specificity than the articles that were drafted against President 
Nixon.
  I will do my best to briefly address the second claim which has been 
asserted by the President's lawyers against the form of the articles of 
impeachment; that is, that they are invalid, charging multiple offenses 
in one article. The articles of impeachment allege that President 
Clinton made one or more perjurious, false and misleading statements to 
the grand jury and committed one or more acts in which he obstructed 
justice.
  Once again, these articles are modeled after the articles adopted by 
the House Committee on the Judiciary against President Nixon and were 
drafted with the rules of the Senate. Specifically in mind, the Senate 
rules explicitly contemplate that the House may draft articles of 
impeachment in this manner and prior rules of the Senate have held that 
such drafting is not sufficient and will not support a motion to 
dismiss.
  Rule XXIII of the Rules of Procedure and Practice in the Senate When 
Sitting On Impeachment Trials now states that an article of impeachment 
``shall not be divisible for the purpose of voting thereon at any time 
during trial.'' When the Senate Committee on Rules and Administration 
amended rule XXIII in 1986, it explained that. And I quote this at 
length. And this goes right to the heart of the matter. This is what 
the Rules Committee in its report said. It said:

       The portion of the amendment effectively enjoining the 
     division of an article into separate specifications is 
     proposed to permit the most judicious and efficacious 
     handling of the final question both as a general matter and, 
     in particular, with respect to the form of the articles that 
     proposed the impeachment of President Richard M. Nixon. The 
     latter did not follow the more familiar pattern of embodying 
     an impeachable offense in an individual article but, in 
     respect to the first and second of those articles, set out 
     broadly based charges alleging constitutional improprieties 
     followed by a recital of transactions illustrative or 
     supportive of such charges. The wording of Articles I and II 
     expressly provided that a conviction could be had thereunder 
     if supported by ``one or more of the enumerated 
     specifications. . . . [I]t was agreed to write into the 
     proposed rules language which would allow each Senator to 
     vote to convict under either the first or second articles if 
     he were convinced that the person impeached was `guilty' of 
     one or more of the enumerated specifications.''

  The Senate rules themselves, thus, specifically contemplate that an 
article of impeachment may include multiple specifications of 
impeachable conduct as in the case of President Nixon. The Senate 
itself has recognized the articles against President Nixon as an 
appropriate model to be followed. The House has, in the articles now 
before the Senate, simply followed that model.
  Moreover, I would point out in conclusion that the Senate has 
convicted a number of judges on such omnibus articles, including Judges 
Archibald, Louderback and Claiborne.
  I would submit to the Members of the Senate that the articles of 
impeachment against President Clinton present his offenses and their 
consequences in an appropriately transparent and understandable manner. 
They are not constitutionally deficient.
  Thank you.
  The CHIEF JUSTICE. This question is sent by Senators Dodd and Leahy:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question by Senators Thurmond, Grassley, Chafee, and 
     Craig; particularly what would have stopped or limited the 
     House in specifying precisely the statements on which the 
     articles were based?

  Mr. Counsel CRAIG. In our case, we are talking about an allegation of 
perjury. In the Nixon case--in the 1974 Nixon case--he was not charged 
with perjury. I think our argument was that perjury is a different kind 
of thing. You have to be very specific in what you charge, and you have 
to be very clear as to what the statement is when you are charging 
perjury. And that is the tradition of our criminal justice system and 
of our jurisprudence.
  The danger here is that if you do not, if you are overly broad, as we 
contend in article I, that at any given moment you can fill the vessel 
with what your meaning is.
  Let me give you a little history of these allegations of grand jury 
perjury against the President.
  The Starr referral had three allegations. The Starr referral was 
September 9. Mr. Schippers, when he made his presentation to the 
Judiciary Committee, had two allegations. One was different. He 
incorporated one of Starr's. When Starr appeared and testified on 
November 19 in front of the Judiciary Committee, he almost spent no 
time on this at all--one or two sentences. But he added a new charge, 
which was that the President was not truthful when he testified that he 
had been truthful in the deposition.
  Then, we appeared and made our representations and our defense on 
behalf of the President on the basis of what Mr. Starr had written in 
his referral and what Mr. Schippers had presented to the Judiciary 
Committee and in addition to what Mr. Starr had said when he appeared. 
But then when Mr. Schippers gave his closing argument the following 
day, we saw the new articles. We had, by my count, 10 allegations from 
Mr. Schippers. Two had to do with the definition of sexual relations. 
Three had to do with the prepared statement. Two had to do with things 
that were never alleged again and never surfaced again in the course of 
the case. And they had to do with Mr. Bennett and his proffer of the 
Lewinsky affidavit.
  Then, on December 16 we had a whole new additional collection of 
reports of allegations. And on January 11, the file brief here set 
forth eight examples.

  Just to highlight the danger of not being specific, of not tying 
yourself to a definition, let me compare, for example, the trial brief 
that was submitted

[[Page S874]]

by the House managers 3 days before Mr. Rogan made his presentation.
  The precise statement that the President is accused of testifying 
falsely in front of a grand jury was that he was lying when he said 
that the reason that he was seeing Betty Currie was to refresh his 
recollection. In the trial brief--they make that reference one, two, 
three, four times--that the statement that is specific here in the 
trial brief is he lied when he said he was going to refresh his 
recollection. That is not even mentioned in Mr. Rogan's presentation. 
He changes it. And he says he lied when he said he wanted to ascertain 
what the facts were, trying to ascertain what Betty's perception was--a 
very different statement requiring a very different defense. And 2 days 
before, 3 days before we even hear the allegations on the floor of the 
Senate, we still don't know precisely what they are.
  Mr. Counsel RUFF. Mr. Chief Justice, if I may absorb whatever 
rebuttal time is still available to us, may I for just a moment, sir?
  The CHIEF JUSTICE. Sure.
  Mr. Counsel RUFF. Thank you.
  I want to talk briefly about just two aspects of Manager Canady's 
presentation.
  First of all, he asks why didn't we seek a bill of particulars. Well, 
let me all remind the Senators, although I don't think any of you were 
here at the time of the trial of Judge Louderback who also saw a bill 
of particulars, and the House of Representatives at the time made it 
clear that the managers do not have the authority to rewrite the 
articles, though they certainly have, I suggest, attempted to do so on 
the fly, but that it would have required a remand to the House of 
Representatives in order to have a bill of particulars to judge what 
they themselves meant when they had passed these articles.

  Second, just very briefly, I spoke to the issue of multiplicity, 
duplicity, the other day, and the question of whether the rule 23 
revision makes any difference. As I pointed out--and I won't embarrass 
him any further--one Member of this body spoke at length about the 
importance of not loading up multiple offenses into one count well 
after the revision of rule 23, clearly with no sense that this body had 
been precluded from dealing with the critical issue of whether a two-
thirds vote can sensibly be taken on an article that contains multiple 
and, particularly as my colleague, Mr. Craig, indicated, multiple 
nonspecific violations.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Senators Thompson and Grassley, Thurmond, Allard, 
Frist, Burns, and Inhofe direct this question to the President's 
counsel:

       If the President were a Federal judge accused of committing 
     the same acts of perjury and obstruction of justice and the 
     Senate found sufficient evidence that the acts alleged were 
     committed, should the Senate vote to convict?

  Mr. Counsel RUFF. This will sound half hearted, but it is not. I am 
glad you asked that question. This really goes right to the heart of 
the managers' argument here, which is that there is no difference in 
the consideration of the impeachment process between an allegation 
against a Federal judge and an allegation against the President of the 
United States.
  I will not repeat the extended discussion of this subject of a few 
days ago, but let me try to summarize very briefly. It is absolutely 
crystal clear from the history of the drafting of the impeachment 
clause that the concern of the framers was, is there such action as to 
subvert our Government that we can no longer persist in permitting, in 
their case, the President of the United States to remain in office. 
That question must be dramatically different when you ask it about the 
conduct of 1 of 1,000 judges.
  Beyond that, it is also clear that there has been extended debate in 
many forums and at many times in the past 210 years about, indeed, just 
what the standard is for the impeachment of judges.
  I hesitate to do this, and I do it apologetically, Mr. Chief Justice, 
but the Chief Justice himself in an earlier time and an earlier guise 
spoke to this issue and made it clear--this during his tenure as 
assistant attorney general for the Office of Legal Counsel--when the 
issue was being debated whether there was a nonconstitutional, 
nonimpeachment device for disposing of judges alleged to have engaged 
in misconduct that may not fall within the high crimes and misdemeanors 
provision of the impeachment clause, that, indeed, the good behavior 
standard for judges was something far broader than the standard to be 
applied under the high crimes and misdemeanors standard. And, indeed, 
that debate was resumed many years later in the context of a further 
effort to establish a nonconstitutional device for removing judges.
  That history, and just the core question, do you ask the same 
questions about the trauma that the Nation suffers when you are 
removing a judge and you are removing a President, the answer must be 
no. You must ask, what is the nature of the perjury that has been 
committed? What is the nature of the offense that has been committed? 
What is the factual setting in which it occurs? And, ultimately, does 
it so subvert the accused's ability to perform the duties of his office 
that you must remove him?

  That question for Judge Nixon, convicted and imprisoned, has got to 
be different from--``different'' is much too mild a word--stunningly 
different from the question you ask against the backdrop of our history 
when you ask whether the President of the United States should be 
removed and the will of the electorate overturned.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Senators Dorgan and Baucus and Schumer to the 
President's counsel:

       In Counselor Ruff's presentation, he set forth a time line 
     that undermined the managers' theory that Judge Wright's 
     December 11 discovery letter triggered an intensification of 
     the President's and Jordan's efforts to assist Lewinsky in 
     finding a job. In response to Mr. Ruff's presentation, the 
     managers handed out a press release outside the Senate 
     Chamber asserting that it was the December 5 issuance of the 
     witness list in the Jones case and not the judge's discovery 
     order on the 11th that triggered the intensification of the 
     job search. It does not appear consistent with assertions 
     made by the House managers in their trial brief and oral 
     presentations. Please comment.

  Mr. Counsel KENDALL. It was the assertion very clearly voiced in Mr. 
Manager Hutchinson's presentation and very clearly made in the trial 
brief of the House managers that it was, indeed, the December 11 order 
that--I used the word ``jump-started'' yesterday--that catalyzed, that 
pushed forward, the job search.
  If you look at page 21 of the House managers' brief, you see them say 
this sudden interest was inspired by a court order entered on December 
11, 1997. Now, their position could not have been clearer until we 
began our presentations, and then, all of a sudden, it wasn't the 
December 11 order; it was, instead, the December 5 witness list.
  Well, there are a number of things to be said about that. One of them 
is that they have very clearly said that there was no urgency at all 
after the witness list arrived to help Ms. Lewinsky. They have said 
that Mr. Jordan met with the President on December 5 but that meeting 
had nothing to do with Ms. Lewinsky. This was in the majority report at 
page 11. They said that very clearly.
  So they have now suddenly--because it has been clear that the 
December 11 order was entered at a time when Mr. Jordan was flying to 
Europe, he could not have known about it. He had met with Ms. Lewinsky 
earlier that day. And, indeed, that December 11 meeting had sprung from 
actions taken by Ms. Lewinsky in a phone call with Mr. Jordan in 
November. They had set that--they agreed that when Mr. Jordan returned 
to the country, they would set up a meeting. They did that on December 
5, or she tried to get in touch on December 5. They tried to get--they 
finally succeeded in getting in touch on December 8, and that was not 
at a time she knew she was on the witness list.
  So the point is these were two entirely separate chains of events 
going forward--the job search and the witness list. And nothing 
supports the intensification theory presented by the managers, 
certainly not this new, ``Well, it wasn't the December 11th order; it 
was the December 5th order.''
  The CHIEF JUSTICE. Senators Ashcroft and Hatch--is there anyone on 
the floor who can't hear me? This is for the House managers:

       The White House makes much of the fact that Vernon Jordan 
     was on a flight to Holland on December 11 before Judge Wright

[[Page S875]]

     ruled that afternoon that other women who may have had 
     relationships while in President Clinton's employ were 
     relevant to the Jones suit. However, the President was faxed 
     a witness list on December 5 and actually reviewed it no 
     later than the 8th. Thus, isn't the White House argument that 
     the President had no incentive to assist Ms. Lewinsky's job 
     search until December 11 just a red herring?

  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. And I 
appreciate the opportunity to respond here.
  Just let me say, by way of preface, that we are lawyers. We are 
trying to do three things at once. Usually you have an opening 
statement where you outline where you want to go in a case, then you 
have a presentation of the evidence, then you have a closing argument. 
And we are trying to do it all at the same time.
  It is for that reason, as I said at the very beginning of my 
presentation, that you need to pay attention to the record and to the 
facts. That is what you depend upon. And I get carried away in my 
argument. I am arguing, just as they are arguing their theory of the 
case. We are both arguing a point of view here, and it is up to you to 
make the determination.
  I have great respect for these counselors. They are admirable. They 
are doing a great job for their client, and they are presenting their 
theory of the case. We are arguing our point of view, and it is the 
facts that make the determination.
  Now, let me go back to--and you have it in front of you--my 
presentation, exhibit C, which I guess is the third exhibit, which is 
really the White House exhibit that Mr. Ruff had up here for a number 
of days, because they were really trying to hammer home this statement 
that I made in my presentation. I hope you all have that.
  Mr. GRAMM. Just tell us.
  Mr. Manager HUTCHINSON. I will tell it to you then. Thank you.
  Exhibit C--which I hope you have; we asked them to distribute that--
is a statement that Mr. Ruff portrayed, from me, which in my 
presentation I said: ``The judge--the witness list came in, the judge's 
order came in, that triggered the president into action and the 
president triggered Vernon Jordan into action.''
  Now there are two things that I am pointing to as the trigger 
mechanisms for the job search intensification. One of them is the 
witness list that comes in on December 5, the President knows about, at 
the latest, on December 6. The other thing that intensified that effort 
was the judge's order on December 11.
  They went through this long circumstance of Mr. Jordan being in 
Holland and the time of the phone call with the judge and all of that, 
showing that the judge's order of December 11 could not have triggered 
any action on the 11th. There is no question about that. That is 
obvious from the facts, as it was obvious when I made my presentation. 
The meetings on the 11th, with Vernon Jordan and Monica Lewinsky, were 
triggered by the witness list coming on the 5th, that the President 
knew about on the 6th, that he discussed with Vernon Jordan as well.

  Now, we say that the judge's order of the 11th, which was filed that 
day--the only thing that was filed on the 12th was their memorandum of 
that telephone conversation--that triggered additional action down the 
road. The job search was not over; the activity continued into January. 
And, so, that all put pressure on the ultimate fact, in January when 
the job was obtained, the false affidavit was filed.
  Now let me just point to a couple of other things along that line. We 
need to look at this because they basically make the point that there 
is not any connection between the false affidavit--and that is my 
characterization--that was filed, and the job search. But if you look 
at the testimony of Vernon Jordan, and that is exhibit--I think they 
are giving them out now--F, that I am presenting to you, the sworn 
testimony of Vernon Jordan which was on March 3 of 1998, he testifies 
in answer to a question:

       Counselor, the lady comes to me with a subpoena in the 
     Paula Jones case that I know, as I have testified here today 
     was about sexual harassment. . . . you didn't have to be an 
     Einstein to know that that was a question that had to be 
     asked by me at that particular time because heretofore this 
     discussion was about a job.

  And then he says, ``The subpoena changed the circumstances.'' And I 
think this is important, that Mr. Jordan, who is filled with common 
sense, he says you don't have to be an Einstein. You don't have to be 
learned, like Mr. Ruff or any of the other White House counsel, to 
apply common sense. Common sense tells you that whenever he knew about 
the subpoena, it escalated to a new arena and obviously the witness 
list would have the same impact.
  And, so, Mr. Jordan himself makes the connection, the job search was 
one thing but whenever she became a witness in the Jones case, that 
changed everything. That changed the circumstances. And let me tell 
you, that is a friend of the President who is making that statement.
  And, so, we have to take this picture, that they were related as they 
were going two tracks, they became interconnected and became one track.
  The final point--and this was raised on the job search issue--that 
the call by Mr. Jordan to Mr. Perelman, the CEO of the parent company 
of Revlon, really had no impact on Monica Lewinsky getting a job 
because there is a misinterpretation as to how well she did on the 
interview. But if you look back to the testimony, the grand jury 
testimony, there was a connection, because Mr. Jordan calls Mr. 
Perelman and, as he characterized it: Make it happen if it can happen. 
Mr. Perelman then calls Mr. Durnan, and then Mr. Durnan calls Ms. 
Seidman, who was actually doing the interview the next day with Monica 
Lewinsky.
  So the person who was going to make the decision whether to hire 
Monica Lewinsky got the word down through the channel before that 
interview took place and before the decision was made. And of course 
the important thing is: What was the intent? Not the result, but the 
intent. And I think that you can see that there was an intent to make 
sure that Monica Lewinsky was taken care of. Again she was on board, 
part of the team, before she actually would have to give testimony or 
the President would have to give testimony.
  The CHIEF JUSTICE. This question from Senator Boxer, and it is to 
counsel for the President:

       In light of the concession of Manager Hutchinson that Judge 
     Wright's order had no bearing on the ``intensity'' of the job 
     search, can you comment on the balance of his claim on the 
     previous question?

  Mr. Manager HUTCHINSON. Mr. Chief Justice, could I object to the form 
of the question? That was not proper characterizing what I just stated.
  The CHIEF JUSTICE. I don't think managers--I am not sure whether the 
managers--can the managers object to a question? (Laughter.)
  Mr. Manager HUTCHINSON. I withdraw my objection.
  The CHIEF JUSTICE. Very well. I think--the Parliamentarian says they 
can only object to an answer, not to a question, which is kind of an 
unusual thing, but----
  Mr. Counsel RUFF. Mr. Chief Justice, I was going to remark that they 
can if they have the courage.
  I want to link up my response to Manager Hutchinson's most recent 
comments with the previous discussion about vagueness. If there was 
ever a moving target, we have just seen it in motion: Well, it really 
wasn't December 11, because now we know it didn't happen on December 
11, so let's go to December 19, or maybe January 8, and somewhere in 
there we are going to find the right answer.
  I suggest to you that that is reflective of both the difficulty we 
have had in coming to grips with these charges and, candidly, the 
difficulty that the House might have had figuring out what those 
charges really were.
  Let me just respond briefly to Mr. Manager Hutchinson's argument. And 
let me focus, first, on another portion of his presentation in which he 
states, and there--and he is referring now to Ms. Lewinsky--she is 
referring to a December 6 meeting with the President in which, as you 
will recall, she has testified that there was a brief discussion about 
her efforts to get a job through Mr. Jordan and the President sort of 
vaguely said, ``Yes, I'll do something about that.'' And this is Mr. 
Manager Hutchinson's characterization of that moment. December 6, you 
will recall, is the day after the witness list comes out and the day on 
which she learns of it:


[[Page S876]]


       So you can see from that that it was not a high priority 
     for the President either. It was, ``Sure, I'll get to that, I 
     will do that.'' But then the President's attitude suddenly 
     changed. What started out as a favor for Betty Currie 
     dramatically changed after Ms. Lewinsky became a witness and 
     the judge's order was issued again on December 11.

  But to the extent the managers now seek to drag the intensification 
process back into the December 5 or 6 period, which is when Ms. 
Lewinsky went onto the witness list, you must look at what they say.
  Page 11, majority brief, Mr. Jordan met President Clinton the next 
day, December 7, but they didn't discuss the job at all. Now, it is 
absolutely clear that the President knew that Ms. Lewinsky was on the 
witness list when he met with Mr. Jordan on December 7, and yet the 
issue of Monica Lewinsky didn't even surface.
  I am getting some help here.
  ``The first''--``the first,'' their words, page 11, majority brief, 
majority report--``The first activity calculated to help Ms. Lewinsky 
actually get a job took place on December 11. There was no urgency.''
  It is possible, of course, as their trial brief reflects, to bob and 
weave and dodge around the facts here, but their trial brief says:

       There was obviously--

  Referring to the period after she appears on the witness list--

       There was obviously still no urgency to help Ms. Lewinsky.

  And even they acknowledge that the December 7 meeting with Mr. Jordan 
was unrelated to Ms. Lewinsky.
  But let me point, because I think this really goes to the heart of 
it, to what the managers ask you to think about in this context in 
which now, whether we call it a confession or simply an acknowledgment, 
what they asked you to do when you heard the recitation about the 
December 11 events. We now know Mr. Jordan is flying over the Atlantic 
at the critical moment, and here is what Mr. Manager Hutchinson asks 
you to do with Vernon Jordan, distinguished citizen, distinguished 
lawyer:

       Now, if we had Mr. Jordan on the witness stand--which I 
     hope to be able to call Mr. Jordan--you would need to probe 
     where his loyalties lie, listen to the tone of his voice, 
     look into his eyes and determine the truthfulness of his 
     statements. You must decide whether he is telling the truth 
     or withholding information.

  There is only one message there: Vernon Jordan must have been lying 
or at least there is enough question about his credibility and his 
honesty and his decency to explore whether he was lying. If you 
predicate that question on the, shall we say, erroneous recitation of 
events on December 11, you need to know nothing more about what the 
time line and the chronology and the managers' theory of this case is 
all about.

  Thank you, Mr. Chief Justice.
  Mr. CHIEF JUSTICE. This question is from Senators Sessions, Gramm of 
Texas, Smith of New Hampshire, Inhofe, Allard, and Roberts. It is 
directed to the House managers:

       In defense of the President, Ms. Mills has repeatedly 
     stated, and has just reiterated, that the crime of witness 
     tampering requires some element of threat, intimidation or 
     pressure. Isn't it true that section 1512(b) criminalizes 
     anyone who corruptly persuades or engages in misleading 
     conduct with the intent to influence the testimony of any 
     person in an official proceeding? Please explain.

  Mr. Manager BARR. Mr. Chief Justice, we appreciate the question from 
the Senators, since it bears on a number of different questions and a 
great deal of the evidence that you all have heard in this case.
  One can talk around the law, one can talk about the law, one can 
ignore the law and, as we have seen, one can break the law, but one has 
to deal with the law in court and in these proceedings. And that is why 
throughout these proceedings the Senators have heard us, as the House 
managers on behalf of the House of Representatives, and as the 
presenters of this case against the President, refer repeatedly and 
explicitly to the actual language of the statutes which form the basis 
for the articles of impeachment against President William Jefferson 
Clinton.
  Counsel Mills has, in fact, misrepresented the law of tampering with 
witnesses as set forth very explicitly in section 1512 of title 18 of 
the United States Code. In her arguments 2 days ago, Ms. Mills quite 
expressly stated that one of the elements that a prosecutor must charge 
and that must be found here, if, indeed, article II, which is 
obstruction of justice, should lie as the basis for a conviction 
thereon, one must find that tampering under 1512 requires threats or 
coercion. Nothing could be further from the truth.
  Now, if, in fact, Ms. Mills had stated to this body that one of the 
bases, one of several bases on which a prosecutor or we, as House 
managers, could, indeed, show this body that tampering with a witness 
would lie, includes, as an alternative, as an option, threats or 
coercion, she would have, instead of being misleading, been absolutely 
correct. That was not her position.
  Section 1512 of the United States Code expressly does not require 
threats of force, intimidation or coercion. It may be based on the 
person corruptly persuading another person or engaging in misleading 
conduct toward another person, both of which are terms, the definitions 
for which are not found in the ether but are found, yet further 
reading, in title 18. Neither of them requires threats, intimidation or 
coercion.
  Moreover, in considering whether or not section 1512 or, indeed, its 
companion section, 1503, also obstruction of justice under the U.S. 
Criminal Code, which also does not require for a conviction to lie 
thereon threats of force, intimidation or coercion, but also may be and 
is based on corruptly influencing, those terms are expressly defined 
and dealt with not only in the definitional provisions of title 18, and 
including specifically definitions that apply to these provisions, 
these sections, but also in the case law.
  We would respectfully direct the attention of the Senators in 
reviewing the law of obstruction of justice and the law of tampering 
with witnesses to some of the very cases cited by the attorneys for the 
President in their effort to deflect attention away from these 
particular provisions of the law as they apply to the conduct of the 
President.
  For example, in her presentation, Presidential Counsel Mills relied 
on the Supreme Court case of United States versus Aguilar in her 
statements. In that case, the Court held that a lie told to a criminal 
investigator was insufficient to prove witness tampering.
  What Ms. Mills failed to disclose, however, was that the Court's 
decision in that case, in that Aguilar case, was based on a specific 
finding not applicable to the facts of this case that the evidence was 
insufficient to prove that the defendant could have even thought that 
the investigator was a potential witness at the time that he lied to 
him.
  The overwhelming body of evidence in this case, as we have heard yet 
this morning, most recently in response to questions, is that not only 
could the President, and the President did in fact reasonably presume, 
indeed almost invite, the lawyers in the Jones case to subpoena Ms. 
Currie as a witness, but we have found, contrary to the prior 
misleading statements of Counsel Ruff, she was, in fact, subpoenaed and 
called as a witness.
  Therefore, we believe that on both arguments raised by counsel for 
the President seeking to deflect attention away from and render 
inapplicable both obstruction provisions, 1503 and 1512, because they, 
one, require--as we have shown they do not--but they would argue they 
require coercion, threats, intimidation or force or, two, they are 
inapplicable because the President could not have reasonably believed 
or did not know that Ms. Currie was a witness, could reasonably be 
expected to be a witness at the time the coercion took place.
  I would yield for 1 minute to House Manager Graham.
  The CHIEF JUSTICE. I believe the House managers' time has expired.
  Mr. Manager BARR. I will not yield to House Manager Graham.
  The CHIEF JUSTICE. Senator Byrd, to the President's counsel:

       Alexander Hamilton, in Federalist essay No. 65, states that 
     ``The subjects of impeachment are ``those offenses which 
     proceed from the misconduct of public men, or, in other 
     words, from the abuse or violation of some public trust.'' 
     Putting aside the specific legal questions concerning perjury 
     and obstruction of justice, how does the President defend 
     against the charge that, by giving false and misleading 
     statements under oath, such ``misconduct'' abused or violated 
     ``some public trust"?

  Mr. Counsel RUFF. Mr. Chief Justice, this, too, goes to the very 
heart of the deliberations in which you must engage at the end of these 
proceedings.

[[Page S877]]

As I have tried to make clear in my earlier arguments, it is not enough 
simply, I think, to ask does a particular generic form of misconduct, 
however serious it may be, lead inexorably to the conclusion that the 
President of the United States has committed an impeachable offense?
  As the framers made clear, and I think the history that lay behind 
their deliberations and the history that has followed make clear, when 
we speak of the kind of political--in caps, which is what it was in 
Federalist 65--offenses against the man in his public role, we speak of 
offenses which this body must ultimately judge as being so violative of 
his public responsibilities that our system cannot abide his continuing 
in office.
  Let us assume for a moment--and we will disagree with each and every 
element of the accusation--but let us assume for a moment that this 
body were to conclude that the President lied in the grand jury about 
his relationship with Ms. Lewinsky. That in and of itself does not lead 
to the judgment, and in our view must not lead to the judgment, that he 
needs to be removed from office. It must give you pause. You must think 
carefully about it.
  But ultimately you must ask, despite our rejection of any such 
conduct--whether it be a judge or a President or any other civil 
officer--have the framers instructed us to remove from his office, and 
overturn the will of the electorate, a President who, admittedly, if 
you conclude that he did violate the law in this regard, has violated a 
public trust in the broadest sense, as each of us does who serves the 
public, if we do anything other than that which are our properly 
assigned responsibilities, and do them with the utmost of integrity? 
Each of us violates that trust if we don't meet that standard.
  But the one thing we can be certain of is that the framers understood 
the frailties with which they were dealing. They understood the nature 
of the offense that had been the background of impeachment proceedings 
in England. And certainly the framers, in their debate, made it clear 
that it has to be at the highest level of public trust--the breach of 
the public trust that is embodied in the words ``treason,'' 
``bribery,'' ``selling your office'' and similar other high crimes and 
misdemeanors.
  And so all I ask the Senators in this regard is not to simply leap, 
as the managers would have you do it, from the definition of the 
offense or the statute governing their conduct, but to ask the 
constitutional question, as I know you will, the framers' question. If 
we have not convinced you on the facts, I hope we will convince you 
that the framers would have asked: Is our system so endangered that we 
must not only turn the President over to the same rule of law that any 
other citizen would be put under, after he leaves office, but must we 
cut short his term and overturn the will of the Nation? And in our 
view, in the worst case scenario, you can find the answer to that 
question must still be no.

  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Senator Lott asks the House managers:

       Do the managers wish to respond to the answer just given by 
     the President's counsel?

  Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, we 
would briefly respond to the response just given by counsel for the 
President. We believe that the response and the position taken by the 
counsel for the President here really involves two great errors. One 
error is in establishing a standard of conduct for the Presidency that 
is too low. The other error is in attempting to minimize the 
significance of the offenses that this President has been charged with 
and which we submit to you the evidence supports the charges.
  Now, we do not submit that any President--this President, whoever it 
may be--should be impeached and removed from office for trivial or 
insubstantial offenses. We believe that an essential part of the focus 
of your inquiry must be on whether there was a serious, corrupt intent 
involved in the underlying conduct.
  A President should not be impeached and removed from office for a 
mistake of judgment. He should not be impeached and removed for a 
momentary lapse. Instead, he should be impeached and removed if he 
engages in a conscious and deliberate and settled choice to do wrong, a 
conscious and deliberate and settled choice to violate the laws of this 
land.
  We submit that he must be impeached and removed if he does that, 
because in doing so he has violated his oath of office and in doing so 
he has turned away from the unique role which he has under our 
Constitution, as the Chief Executive, charged with ensuring that the 
laws be faithfully executed. He steps aside from that role and takes on 
the role of one who attacks the rule of law. And it is for that reason 
that we believe that this President should be removed. And we would 
further submit that the attempt to minimize the significance of the 
conduct of this President does a disservice to the laws of this land.
  The attempt to minimize this course of conduct, which started out as 
an effort to deprive a plaintiff in a civil rights case of her just day 
in court, is a serious course of conduct, a course of conduct which 
brings disrespect on the office of the Presidency and, indeed, 
undermines the integrity of the office of the Presidency, the integrity 
of the judicial system. And it is for all of those reasons that we 
would submit to you that the President's counsels' efforts to persuade 
you that this course of conduct is not impeachable are not persuasive 
and should not be accepted by the Senate in this case.
  The CHIEF JUSTICE. Senators Torricelli and Rockefeller ask, to the 
President's counsel:

       The House managers have made the overly broad argument that 
     ``[n]othing in the text, structure, or history of the 
     Constitution suggests officials are subject to impeachment 
     only for official conduct.'' Can this unbending argument be 
     reconciled with the following statement from Justice James 
     Wilson: ``Our President . . . is amenable to [the laws] in 
     his private character as a citizen, and in his public 
     character by impeachment''--and with the standard adopted by 
     a bipartisan majority in the Watergate proceedings?

  Mr. Counsel RUFF. Mr. Chief Justice, Senators, I could probably 
simply say no, given the articulate framing of that question, and I 
would have said as much as needed to be said.
  I think the managers have, in their strawman-building role, tried to 
suggest that our position somehow is so distant from constitutional 
realities and the realities of the operations of our Government that we 
could not conceive of a situation in which private conduct, no matter 
how egregious, would lead to removal. Of course, that is not the case. 
None of us could contemplate a setting in which even personal conduct--
and I need not go through any examples--was so egregious that the 
people simply could not contemplate the notion of a President remaining 
in office.
  But other than that, if there is one message that comes out, not only 
of Judge Wilson but of the entire debate of 1787 and all of the 
commentary since then, it is that, indeed, the focus of attention must 
be--and this goes back to, in large measure to Senator Byrd's 
question--must be on the public character of the man; the political, in 
a broader sense, character of the man; and of his acts.
  And if you look back at the 1974 writings of the House Judiciary 
Committee, both majority and minority, this is not a partisan view. It 
makes it absolutely--they make it absolutely clear that the House then 
believed something which they must either not believe today or have 
ignored as they engaged in their discussions, which is that the test to 
be applied is whether the President in this case has so abused the 
public trust, so abused the powers of his office, that he goes to the 
very heart of what the framers had in mind in 1787 when they carefully 
confined and carefully limited the range of activity that could lead to 
contemplation of removal, and that is not a range of activity that, 
with all due respect, touches anywhere near the conduct that you have 
before you today.
  The CHIEF JUSTICE. Senator Nickles asks the House managers:

       President's counsel stated the President did not commit 
     perjury. Please respond.

  Mr. Manager ROGAN. Mr. Chief Justice, I trust that the presumption of 
5 minutes is a rebuttable one, correct? I will do my best not to have 
to go beyond the time. I thank the Senator for the question.
  First, just as a predicate, obviously in 5 minutes I could not do a 
comprehensive review on the perjury aspects of this case, so let me 
just start with a preliminary issue and we can

[[Page S878]]

move on with different questions and revisit the issue at another time. 
If anybody wants a lesson in legal schizophrenia, please read the 
President's trial brief on this very subject. They skirt the issue by 
saying nowhere in the President's grand jury deposition did he ever 
affirm the truth of his civil deposition testimony. But they won't come 
out and say he lied, they won't come out and say he perjured himself, 
and they try to ignore the actual fact of when the President was asked 
questions about his oath that he took during the grand jury.
  I read, therefrom:
  Question to the President:

       You understand the oath required you to give the whole 
     truth that is a complete answer to each question, sir.
       Answer: I will answer each question as accurately and fully 
     as I can.

  Question to the President:

       Now, you took the same oath to tell the truth, the whole 
     truth, and nothing but the truth, on January 17, 1998, in a 
     deposition in the Paula Jones litigation, is that correct, 
     sir?
       Answer: I did take an oath there.
       Question: Did the oath you took on that occasion mean the 
     same to you then as it does today?
       Answer: I believed then that I had to answer the questions 
     truthfully, that's correct.

  The colloquy goes on. It is in your materials.
  They attempt to say that that somehow inoculates the President from 
having to admit that he perjured himself during the Paula Jones 
deposition.
  But let's take a quick look at some of the answers he gave during the 
Paula Jones deposition that he affirmed in his grand jury testimony 
that we now know is false.
  Question to the President:

       If she [Monica Lewinsky] told someone she had a sexual 
     affair with you beginning in November 1995, would that be a 
     lie?
       Answer: It certainly would not be the truth.
       Question: I think I used the term ``sexual affair;'' and so 
     the record is completely clear, have you ever had sexual 
     relations with Monica Lewinsky as that term is defined in 
     deposition exhibit No. 1?
       Answer: I have never had sexual relations with Monica 
     Lewinsky. I've never had an affair with her.

  Then they go on to ask:

       Is it true that when Monica Lewinsky worked at the White 
     House, she met with you several times?
       Answer: I don't know about ``several times.'' There was a 
     period when the Republican Congress shut the government down. 
     The whole White House staff was being run by interns. She 
     was assigned to work back in the Chief of Staff's Office. 
     We were all working there. I saw her on two or three 
     occasions then. And then when she worked at the White 
     House I think there were one or two times when she brought 
     some documents down to me.
       Question: At any time were you and Monica Lewinsky in the 
     hallway between the oval office and the kitchen area?
       Answer: I don't believe so unless we were walking back to 
     the dining room with pizzas. I just don't remember. I don't 
     believe we were in the hallway, no.

  This colloquy goes on and on. I invite the Senate to review the 
President's deposition testimony.
  He clearly was giving answers that were false. They were not part of 
the record. He wasn't doing it to protect himself from embarrassment; 
he was doing it to defeat Paula Jones' sexual harassment case. When the 
President testified in August before the grand jury, he never denied 
the truth of those testimonies. He refused to admit he lied during the 
deposition. He reiterated the truth of those because he knew he would 
be subject to perjury.
  The question for the President's counsel is this, and it is a simple 
question: Did the President lie under oath on January 17 when he was 
asked questions about the nature of his relationship with Monica 
Lewinsky? Did he lie when the U.S. Supreme Court had said Paula Jones 
had a right to proceed in a sexual harassment case? Did he lie when 
Judge Susan Webber Wright ordered him to answer those basic questions 
under oath? And if the answer to that question is yes, then we have an 
incredible admission; if the answer is no, I invite them to point to 
the record where that is demonstrated.
  The CHIEF JUSTICE. To the President's counsel from Senators Conrad 
and Torricelli:

       The House of Representatives rejected two proposed articles 
     of impeachment, including an article of alleged perjury in 
     the Jones deposition. Do you believe that the Senate may, 
     consistent with its constitutional role, convict and remove 
     the President based on the allegations under the rejected 
     articles, including the allegations of perjury?

  Mr. Counsel CRAIG. Mr. Chief Justice, article II was defeated. But 
more importantly, article I specifically incorporates by reference, or 
tries to incorporate by reference, all the elements of article II. And 
the House of Representatives, when they voted to reject article II, I 
think, voted also to eliminate these issues that you have just heard 
about.
  Now, we predicted--and our prediction has come true--that the 
managers would like to argue this case. If you look at--if you look at 
the majority point that comes out before the vote occurs on all four 
articles and you go to article I and you try to find out where in 
article I they define those perjurious statements that compose subpart 
(2), the civil deposition, you will see in the majority report they say 
go look at article II--which is the argument about the civil 
deposition--and the House of Representatives specifically voted to take 
out all those accusations and allegations of misconduct with respect to 
the civil deposition.
  Now, I have testified, as did Mr. Ruff, before the Judiciary 
Committee on this issue. I said that the President's responses in the 
Jones deposition were surely evasive, that they surely were incomplete, 
that they surely were intended to mislead; and it was wrong for him to 
do all that. But they were not perjurious.
  If you want to try a perjury case about all of the things and the 
statements that the House of Representatives did not want to accuse him 
of, that would be inconsistent, I think, with your duty as members of 
this court. You cannot impeach the President on the issues that are 
included in article II. He was not impeached; you cannot remove.
  Mr. LOTT. Mr. Chief Justice, I believe we have had an equal number of 
questions, although the timing may not be exactly equal.
  I ask unanimous consent that we take a 15 minute recess at this 
point.
  There being no objection, at 2:41 p.m., the Senate recessed until 
3:01 p.m.; whereupon the Senate reassembled when called to order by the 
Chief Justice.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Mr. Chief Justice, I believe we are ready to resume the 
questions, and I believe this will be question No. 16. We send the 
question to the Chief Justice.
  The CHIEF JUSTICE. This is a question from Senator Santorum, Smith of 
Oregon, and Thomas to the House managers:

       Please respond to the presentation made by counsel to the 
     President, including the argument made by Mr. Craig, to the 
     effect that the rejection of article II had the effect of 
     eliminating that portion of article I. Did the House conclude 
     that lying in a civil deposition is not impeachable, but that 
     lying to the grand jury about whether the witness lied in a 
     civil deposition is impeachable?

  Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators for the 
question and for the opportunity to rebut the presentation a few 
minutes ago by counsel for the President, Mr. Craig.
  In his response he asks the Senate to do specifically what none of 
the attorneys can do in their presentations, and that is go beyond the 
record. Specifically, Mr. Craig is asking the Senate to make 
assumptions as to why the House of Representatives defeated what was 
then known as article II, a stand-alone article of impeachment that the 
President lied during the civil deposition. And he goes so far in his 
presentation to say because the House of Representatives defeated what 
was then article II, the Senate should not consider any of the language 
relating to the President's perjury during the civil deposition.
  First, I ask the Senate not to make those assumptions because if 
there was any reasonable inference to be drawn, it would be that it was 
cumulative. Why is it cumulative? Why did the House not want this to be 
a stand-alone article? It is cumulative because, if Mr. Craig would 
read article I, he would see that one of the allegations of perjury is 
that the President committed perjury in the grand jury when he 
referenced his civil deposition answers and reiterated those to the 
grand jury. And so the House made a decision not to use a separate 
stand-alone article. But I would respectfully submit to this body that 
that is the only inference that can be drawn.

[[Page S879]]

  The other thing that I want to mention briefly about Mr. Craig's 
presentation on that issue is what I found to be a startling admission 
on his part. Assuming, of course, that the Senate is going to look at 
article I as it was drafted and passed by the House and is presented to 
you dealing with civil deposition perjury, Mr. Craig said that the 
President's testimony in the Jones case was evasive and incomplete.
  He goes even further in his testimony, or statement to the Senate a 
couple days ago, and I am quoting. He said, ``The President's testimony 
in the Jones case, the President was evasive, misleading, incomplete in 
his answers.''
  That begs the question. What kind of oath did the President take in 
the civil deposition? Did he take an oath, did he raise his hand and 
swear to tell the truth, the evasive truth, and nothing but the evasive 
truth? Did he take an oath to tell the truth, the misleading truth, and 
nothing but the misleading truth? Did he take an oath to tell the 
truth, the incomplete truth, and nothing but the incomplete truth? 
Because, if he did, if that was the language that the President used 
when he took his oath and testified, then perhaps Mr. Craig's position 
is well taken. But a brief review of the oath that the President took 
clearly states that he took an oath and was obliged under the law to 
tell the truth, the whole truth, and nothing but the truth--not the 
incomplete or misleading truth, the truth, the whole truth, and nothing 
but the truth.

  And so this body has to make a determination when they review that 
testimony, both given during the civil deposition and reiterated during 
the grand jury, whether the President fulfilled his legal obligation in 
a sexual harassment lawsuit. And if he did, then clearly that should be 
stricken, and you should not consider that. But if he did not, if you 
find that in fact he testified, as Mr. Craig says he testified, 
incompletely, evasively, and misleadingly, then I believe this body has 
an obligation to cast a vote accordingly.
  The CHIEF JUSTICE. Senator Reed of Rhode Island asks the White House 
counsel:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question.

  Mr. Counsel RUFF. I thank you, Mr. Chief Justice.
  You know, Mr. Manager Rogan asked you not to make assumptions about 
what the actions of the House mean, and then proceeded to make a series 
of assumptions about what the House might have meant.
  The problem with Mr. Manager Rogan's analysis is twofold: One, he and 
his colleagues in the House on the Judiciary Committee drafted these 
four articles. They believed, at least 20 of the majority believed, 
that it should be an impeachable offense, as he now puts it: did he 
fulfill, did the President fulfill his obligation in the Jones 
deposition? You don't need to make a lot of assumptions to understand 
merely on the face of the action that was taken that the full House 
said, no, it is not, even if we were to conclude, as the House 
Judiciary majority wishes us to conclude, an impeachable offense.
  And so the managers have had to find a way to drag back into article 
I all of the problems that they see in the President's testimony in the 
Jones deposition. The problem is that--and you can listen to it in the 
language that Mr. Manager Rogan has used not only today but earlier and 
that is used in the brief filed by the House managers--that the 
President, in his words, referenced and reiterated his testimony in the 
Jones case. Senators, that is not so.
  Now, they try to hook onto a statement, as best we are able to tell 
in searching their position and their writings on the subject, the 
managers hook onto a statement in which the President said, I tried to 
walk through the minefield of the Jones deposition without violating 
the law and think I did. And, on that frail hook--which is clearly a 
statement of the President's state of mind about whether he succeeded 
or didn't succeed in testifying without violating the law in the Jones 
case--on that hook they hang every single item. They didn't tell us 
what they were--but they hang every single item that the House rejected 
out of hand in article II.

  Now, wholly apart from the inadequacy of the predicate that they lay, 
if there was ever an example of a situation that Mr. Craig talked about 
earlier and that I talked about on Tuesday, in which I challenge 
anybody in this room to tell me how you would have known coming into 
this Chamber what it was that the managers were alleging with respect 
to the Jones deposition, this is it.
  If you listened--look at the trial brief. If you look at Manager 
Rogan's presentation of the other day, if you listened to his 
presentation today, where, amongst all that, do we pick and choose to 
find the statements? Even if you agree with Mr. Manager Canady that it 
is all right just to sort of generally charge, as a constitutional 
proposition--and I firmly disagree with that. I don't care under what 
level you are operating--the lowest trial court in the country--nobody 
would ever say: Now, Mr. Defendant, I want you to understand that you 
are being charged with what you'll find at page, whatever it is, of the 
majority report where we refer you over to this list of other things 
that was rejected by--just let us say the grand jury--and somewhere in 
there you are going to find the charges to which we ask you to respond.
  The bottom line is, you can go down that list. Some of them you will 
never hear mentioned in this Chamber--haven't heard them mentioned yet. 
I defy anybody in this Chamber, including the managers, to justify 
asking the President of the United States to defend against a reference 
from one page of a brief to another in order to tell the charges that 
he has been accused of.
  If you read his grand jury testimony, you see he addressed a number 
of issues that he addressed in the Jones deposition. He clarified. He 
elaborated. He told the truth in the grand jury. Not once was he ever 
asked by the independent counsel and all his lawyers there who had been 
pursuing this investigation for 7 months when they had him in the grand 
jury--not once did they ask him this simple question: Is everything you 
testified to in the Jones deposition true? Or, go down the list and 
say: Is what you testified to on page 6, or page 8, or page 87 true?
  And when they got through with that deposition, 4 hours, professional 
prosecutors, and they went back and spent from August 18 to September 
9, when they sent their referral up, looking back, using a fine-tooth 
comb on that transcript, and they went back and said--where are the 
violations? Even they don't say that there is some sort of wholesale 
importation of the Jones deposition into the grand jury. And, yet, not 
the House but the Judiciary Committee majority report and the managers, 
with that big, vacant, empty spot in the middle, the rejection of 
article II by the House of Representatives, would have you believe 
that, indeed, what the independent counsel's office didn't believe 
happened and didn't force to make happen, did happen. And they are 
asking you to remove the President from office on that kind of logic.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. This is from Senators Shelby and Snowe to the 
House managers.

       There has been much debate regarding the nature of the 
     offenses that fit within the definition of ``high crimes and 
     misdemeanors.'' When employing this phrase in the 
     Constitution, the Framers relied on precedents supplied by 
     Colonial and English common law to provide context and 
     meaning. Please explain whether or not the offenses charged 
     in the two Articles fit within the types of impeachable 
     offenses contemplated by the Framers as they interpreted 
     Colonial and English common law precedent.

  Mr. Manager CANADY. Mr. Chief Justice and Members of the Senate, I 
will be happy to respond to this question because it is a question that 
goes to the heart of the matter that is before us.
  On Saturday I made a presentation which focused on the history of the 
impeachment process in Great Britain and the way in which that serves 
as a backdrop for the work of the framers. I would like to refer you, 
again, to a document to which I made reference during the course of the 
proceedings on Saturday. This is a document which has also been 
referred to repeatedly by counsel for the President. It is the report 
prepared by the staff of the impeachment inquiry in the case of 
President Nixon entitled ``Constitutional Grounds for Presidential 
Impeachment.''

[[Page S880]]

  I believe that in that report they grapple with the very issue that 
you have now raised. And in characterizing the background of 
impeachment and characterizing the things that the framers focused on 
both in the course of the Constitutional Convention and in the 
ratification debates and also--it goes a little beyond your question--
the course of impeachment proceedings over the last 200 years here in 
the House of Representatives and in the Senate, they came to this 
conclusion, and this is what they said. They said:

       The emphasis has been on the significant effects of the 
     conduct--undermining the integrity of office, disregard of 
     constitutional duties and oath of office, arrogation of 
     power, abuse of the governmental process, adverse impact on 
     the system of government.

  They went on to say: ``Impeachment was evolved by Parliament to cope 
with both the inadequacy of criminal standards''--and one of the issues 
that they were concerned with was whether there had to be a criminal 
violation in order for there to be a high crime or misdemeanor, and 
they concluded, I believe rightly, that there need not be a criminal 
offense, but they said, ``Impeachment was evolved by Parliament to cope 
with both the inadequacy of criminal standards and the impotence of 
courts to deal with the conduct of great public figures.''
  They concluded, then, by saying, ``Because impeachment of a President 
is a grave step for the nation''--which all of us in this Chamber 
concede--``it is to be predicated only upon conduct seriously 
incompatible with either the constitutional form and principles of our 
government or the proper performance of constitutional duties of the 
Presidential office.''
  That is the standard which they set forth, which I believe 
encapsulates the whole history of the experience of the English 
Parliament, as well as the discussions in the Constitutional Convention 
and the ratification debates as well as anything I have seen.
  Let me point out that this was a product of the staff of the Rodino 
committee. This is not something that the House managers here today 
have come up with to support our case; it is there as part of the 
record.
  Let me refer to another part of the--that particular report, which I 
think gets to the essence of the matter here. They said, ``Each of the 
thirteen American impeachments''--of course, there have been more 
impeachments since the time this was written--``involved charges of 
misconduct incompatible with the official position of the officeholder. 
This conduct falls into three broad categories.''
  I think that this is a very sensible division of the types of conduct 
that may fall--the types of conduct that constitute high crimes and 
misdemeanors.

       (1) exceeding the constitutional bounds of the powers of 
     the office in derogation of the powers of another branch of 
     government; (2) behaving in a manner grossly incompatible 
     with the proper function and purpose of the office; and (3) 
     employing the power of the office for an improper purpose or 
     for personal gain.

  I would submit to you, in conclusion, that what we have before the 
Senate in this case is conduct that clearly falls within the scope of 
category 2, which I just read, which I will repeat--``behaving in a 
manner grossly incompatible with the proper function and purpose of the 
office''--for the very reasons I explained a few moments ago. When the 
President of the United States, who has taken an oath of office to 
support and defend the Constitution, who has a constitutional duty to 
take care that the laws be faithfully executed, engages in a calculated 
course of criminal conduct, he has, in the most direct, immediate, and 
culpable manner, violated his oath of office, breached his duty under 
the Constitution, and for that reason has behaved in a way that is 
grossly incompatible with the proper function and role of the high 
office to which he has been entrusted--which has been entrusted to him 
by the people of the United States.
  The CHIEF JUSTICE. This question from Senator Bingaman to White House 
counsel:

       Would you please comment on any of the legal or factual 
     assertions made by the Managers in their response to the 
     previous question?
  Mr. Counsel RUFF. Mr. Chief Justice, Senators, let me make a couple 
of points, if I might. The question that was put to the managers 
started by asking what we can learn from looking back into English 
roots of impeachment and how that might bear on the decisions that you 
face in the coming days.
  I will not, in any sense, hold myself out as a scholar or at least 
enough of one to be able to answer the question with any specificity, 
but I do know enough about the parliamentary form of government and its 
experience with impeachment to know that a couple of lessons can be 
drawn from it.
  First, that impeachment was a developing tool over the course of the 
14th, 15th, 16th and 17th centuries as a weapon in the battle between 
the Parliament and the Crown. It was one of the ways--indeed, one of 
the very few ways--the Parliament could reach out and remove the King's 
ministers or the Queen's ministers, and that was really where the 
battleground was.
  Even in that setting, when it was an avowed political tool, history, 
I think, will tell us that Parliament did ask itself, Was the conduct 
of the minister at issue--whoever that minister might be--so subversive 
of the constitutional form of government that removal of the minister, 
or in some cases even more severe sanctions, was necessary?
  If you transport that into the experience of the framers, it does two 
things, I believe: One, it tells you what the framers knew of the 
seriousness of the offenses that had to be addressed through 
impeachment and what the need for impeachment was as the ultimate 
solution to the ultimate problem.
  But it also tells you very clearly that the framers did not want to 
bring that English experience in wholesale because they recognized it 
for what it was, which was, indeed, a weapon in the battle between the 
Parliament and the Crown, and the government that they had created 
needed balance among the legislature and the executive and the judicial 
branch. The use of impeachment, as it was reflected over the four or 
five centuries that had been developed, was not consistent with what 
these framers were creating. And so they very carefully chose, and the 
debates reflect that, to limit the scope of impeachment and to use it 
as they viewed it: only as a matter of constitutional last resort.
  In doing so, they foretold, I think, the positions staked out both by 
the majority and the minority at the time of Watergate. And let me 
pause here just for a moment to say that I will not go into detail 
respecting the conduct engaged in by former President Nixon, except to 
say and suggest to you that it is so far distant from anything that has 
been charged here that it doesn't belong in the same sentence, 
paragraph, or certainly article.
  But if you look at what came out of the House Judiciary Committee in 
1974, I agree entirely with the theme of the majority staff report at 
the time, as did the minority. Their theme was the theme that I hope I 
have sounded, probably too often, over the last few days. And I am 
going to read to you again--I apologize to you--something I read to you 
earlier, which is the minority view on the meaning of impeachment:

       It is our judgment, based upon this constitutional history, 
     that the framers of the United States Constitution intended 
     that the President should be removable but by the legislative 
     branch only for serious misconduct dangerous to the system of 
     Government established by this Constitution. Absent the 
     element of danger to the State, we believe the delegates 
     to the Federal Convention of 1787--

  I will skip over a little language here--

     struck the balance in favor of stability in the executive 
     branch.

  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. Senators Grassley, Smith of New Hampshire, Bunning 
and Craig ask the House managers:

       In your presentation, you made the case that the Senate 
     should call witnesses. In light of the White House's response 
     to this argument, do you still hold this position? Please 
     elaborate.

  Mr. Manager McCOLLUM. Mr. Chief Justice and Senators, the House 
definitely holds to the position that we should call witnesses. But I 
think the issue here is what has been related to us in anything we have 
heard in the past few days by the White House counsel that would say we 
don't need them, or I think just the contrary, what have we heard that 
says we are more likely to need them, or you are more likely to need 
them. First of all, I would like to

[[Page S881]]

point out to you that the White House counsel is trying to have it both 
ways.
  They have been arguing to you on a lot of technicalities of the law, 
the criminal law, for the last few days, and that is understandable.
  As I said to you a few days ago, I think this is a two-stage process. 
We, the managers, do. You have to determine if the President committed 
crimes, and if he did, should he be removed from office: two separate 
questions. They have argued to you that you should use the standard, 
beyond a reasonable doubt, which is a criminal standard, and I might 
add that standard is only for facts, it is not for whether you remove; 
it isn't to determine law.
  You wear the hat as finders of fact as well as the judges, finders of 
the law, and so forth. But if you choose to use that standard, you need 
to know, A, that it doesn't mean it excludes any doubt. You probably 
need to hear a jury instruction, which we can provide at some 
reasonable point for you, about how a Federal court would charge a jury 
about that.
  But the point I am making is that they have claimed that, and they 
claim there is a lack of specificity in the charges. We are not in 
court in the sense of a real trial here. We don't have to be specific 
like that. The whole history of the articles of impeachment that have 
come over here in the past on judges have never gotten down into the 
technical specificity of a courtroom and been thrown out because they 
were not exactly right.
  My point is they have gone and built up a whole case about we ought 
to follow these rules and have a criminal proceeding and judge the 
crimes on that basis, and yet they have said you wouldn't have 
witnesses or we shouldn't call witnesses.
  In any criminal trial, you are going to call witnesses; you need to 
judge their credibility. I want to walk through what else they have 
said to you in the last couple of days that makes that point very clear 
with regard to testimony, with regard to judging who you believe or who 
you don't believe and how important that is.
  First of all, let's just take a few glimpses, but as we do this, 
remember the big picture is the scheme the President has engaged in. 
The whole basis for our discussion here today in each of these two 
articles of impeachment involves the questions of the President trying 
to thwart the Jones court will, trying to hide evidence from the court 
and planning not to tell the truth in that deposition in January. 
Whether that is over here on a perjury count or not is irrelevant. It 
is critical to this case for both obstruction of justice and perjury 
that you accept and understand, as I think clearly you do from 
listening to all of this, that the President lied many times in that 
deposition in the Jones case because he didn't want them to get the 
facts, the true facts of his relationship with Monica Lewinsky.

  Well, in that process of looking at that, he needed Monica, if you 
recall, to file a false affidavit. He needed to obscure the fact that 
there were gifts there. He needed to obscure the trail that led to him 
in any detailed relationship with her.
  So let's take, for example, the gift-exchange discussion counsel had 
out here a couple of days ago with us. They were pointing out to you--
the White House counsel--that on December 28, that Monica Lewinsky, in 
her grand jury testimony, testified that the President said to her--
with respect to what she should do about those gifts, and she raised 
giving them to maybe Betty Currie--I don't know or let me think about 
that.
  The counsel said, well, let's go back and look at 10 different times 
where she said about that subject all kinds of different ways. I submit 
to you that her grand jury testimony, after she got the immunity to 
testify, is clearly the most credible. We presented that to you, and 
that is what the President said.
  It is significant what he said, because that is part of your chain 
you have to lead down the road to figure out whether or not he had the 
requisite intent to go and influence the outcome of what was done with 
the gifts.
  The reality of this is that when you look at it, you have to question 
her testimony; you have to question her believability. You ought to 
bring her out here. She should be brought out here, if they are going 
to challenge her like this, and give an opportunity for us to examine 
her on both sides and determine what is her best testimony about that, 
if that is important to you, and apparently it is to White House 
counsel.
  The same thing is true of the questions with regard to Ms. Currie and 
the phone call dealing with the question of coming over to get the 
gifts. There White House counsel is saying, in essence, Ms. Lewinsky is 
not telling the truth; Ms. Currie is. If you don't have them here to 
listen to, who are you going to believe? I suspect if Ms. Lewinsky came 
out here, that 1-minute phone conversation, which was not part of the 
Starr referral--we discovered that subsequent to that--would be 
something she could comment on and explain, and maybe Ms. Currie could, 
too. But we do not have that. And they made a big to-do over that in 
the last couple days.
  Last, but not least, what I put up on the chart here is dealing with 
this affidavit. Now, this affidavit is very important. It is a central 
part of the obstruction of justice. It is the very first obstruction of 
justice and the question of truthfulness. And who you believe in this 
pattern is very, very important.
  The White House counsel have been arguing the last few days that, 
indeed, with regard to the cover stories, that there was no discussion 
of cover stories in a timely way during the December 17 phone 
conversation when the President suggested Monica Lewinsky file an 
affidavit, and that the cover story idea somehow isn't tied into the 
issue of putting into her head that she should tell a lie.
  Well, I call your attention to what I read to you the other day. It 
is up here on this board. And I refer it back to you on the chart. This 
is one of the charts where she testified before the grand jury--Monica 
Lewinsky did:

       At some point in the conversation, and I don't know if it 
     was before or after the subject of the affidavit came up--

  I don't know if it was before or after, but it was during that 
conversation on December 17 when the affidavit did come up--

       he sort of said, ``You know, you can always say you were 
     coming to see Betty or that you were bringing me letters.'' 
     Which I understood was really a reminder of things that we 
     had discussed before.

  And she went on to say the famous quote: ``And I knew exactly what he 
meant [by this].''
  And if you remember--I read that to you the other day--she also said: 
``It was the pattern of the relationship, to sort of conceal it.''
  I am not going to put the other board up here, but in the same 
context they have been saying, with respect to this affidavit issue 
again, ``No one asked me to lie.'' Remember that was repeated over and 
over and over again. And I, again, point out to you that you need to 
bring her in here, I think, based on what they are saying and arguing, 
to find out for yourself if she is going to corroborate this.
  She said in the grand jury testimony:

       For me, the best way to explain how I feel what happened 
     was, you know, no one asked or encouraged me to lie, but no 
     one discouraged me either.

  And she went on to say: ``And by him not calling me and saying 
that''--that she shouldn't lie; I didn't read the whole paragraph--``I 
knew what [he] meant.''
  ``Did you understand all along that he would deny the relationship 
also?''
  She says: ``Mm-hmmm. Yes.''
  The question: ``And when you say you understood what it meant when he 
didn't say, `Oh, you know, you must tell the truth,' what did you 
understand that to mean?''

  She says: ``That--that--as we had on every other occasion and every 
other instance of this relationship, we would deny it.''
  If you believe her, then the President is not telling the truth. The 
affidavit clearly is something he was trying to get her to file 
falsely. It makes sense that he would, because he relied on it in the 
deposition. He patterned it after the cover stories in the affidavit--
what he had to say--the lies he told about the relationship. It makes 
common sense to me.
  The CHIEF JUSTICE. Mr. McCollum, I think you have answered the 
question.
  Mr. Manager McCOLLUM. Thank you very much.

[[Page S882]]

  My point is, you ought to bring the witnesses.
  The CHIEF JUSTICE. The question from Senator Bryan to the White House 
counsel:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question, focusing on the need for witnesses and the 
     time likely required to prepare for and conduct discovery?

  Mr. Counsel KENDALL. Mr. Chief Justice, the first question to ask 
about the need to call witnesses is, What would the witnesses add? That 
has not been described. What you have heard are vague expressions of 
credibility and hope. You have not heard specifically what these 
witnesses would add. And the answer to that is, they would add nothing 
to what is not already there.
  Yesterday, I held up the five volumes of testimony, thousands and 
thousands of pages. You have it before you. Now, those five volumes 
represent 8 or 9 months of activity by the independent counsel. The 
independent counsel called many, many, many witnesses, many, many, many 
times. They proceeded with no limitation on their budget, on their 
resources. They turned things upside down. And they repeatedly--I think 
abusively--but they repeatedly called witnesses--like Ms. Currie, Mr. 
Jordan, Ms. Lewinsky--back to the grand jury for repeated interviews. 
It is all right there. And the managers have really told you nothing 
that could be added to this record.
  Second, they have not made a representation about what the witnesses 
would really say that is different. And the reason they have not is 
that they themselves don't know. They themselves have done no 
investigation. They don't know what these witnesses would say. They are 
hoping that maybe something will turn up.
  Now, what they have done, they have taken those five volumes, and 
more, from the independent counsel. And I am reminded of the old bureau 
that many newspapers had called ``Rewrite.'' That was not a bureau 
which did independent reporting. When an editor read something that was 
incomprehensible, he or she would say, ``Get me Rewrite.'' So what the 
House has done is gotten ``Rewrite'' to write up its own report. They 
cannot tell you--they can tell you what they hope --they cannot make a 
representation or a proffer to you about what any witnesses would say.
  Now, their third, and really their only argument, is the credibility 
argument--got to see these witnesses. Well, in point of fact, in the 
real world, when you have witnesses, their stories often differ in some 
ways. They differ not because anybody is lying; they differ only 
because people don't always have precisely the same recollection of 
things. Now, that doesn't mean that looking at them will add anything 
other than getting for you the 6th, 7th, 8th, 9th, 10th account of what 
some witnesses said.

  For example, in our trial brief, we quote--and Mr. McCollum referred 
to this--at pages 66 to 67, 11 accounts that Ms. Lewinsky has given on 
the gift exchange. Now, I do not think you are going to learn anything 
from a 12th account. And by the way, with respect to the question of, 
well, she might have testified differently after she got immunity, 9 
out of 11 of these accounts were given, as you will see from the dates 
and the testimony, after she got immunity. Calling witnesses will add 
nothing to the record now before you. All the major witnesses have 
testified, and their testimony is right there.
  Now, in response to the question of how long it will take, I must 
tell you, we have never had a chance to call witnesses ourselves, to 
examine them, to cross-examine them, to subpoena documentary evidence--
at no point in this process. It would be malpractice for any lawyer to 
try even a small civil case, let alone represent the President of the 
United States when the issue is his removal from office, without an 
adequate opportunity for discovery.
  And I think if they are going to begin calling witnesses, and going 
outside the record, which we have right now--I think the record is 
complete; and we are dealing with it as best we can without having had 
an ability ourselves to subpoena people and cross-examine them and 
depose them--but I think you are looking realistically at a process of 
many months to have a fair discovery process.
  The CHIEF JUSTICE. This question is from Senator Chafee. It is to the 
House managers:

       The White House defense team makes a lot out of Monica 
     Lewinsky's statement that she delivered the presents to Betty 
     Currie around 2:00 or 2:30 and about the fact that the phone 
     call came from Betty Currie at 3:32. Isn't it reasonable to 
     assume that Ms. Currie meant that she delivered the presents 
     to Ms. Currie in the afternoon?

  If the President was unconcerned about the presents, as he said in 
his grand jury testimony, why didn't he simply tell Ms. Lewinsky not to 
worry about it?
  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
  Let me just broadly review the whole gift issue and the discrepancy 
in the testimony.
  First of all, I want to go back to Mr. Ruff's presentation during the 
last 3 days.
  He argued that I unfairly characterized Betty Currie as having a 
fuzzy memory whenever she was unclear. And she was clear that it was 
her memory that Monica Lewinsky called to initiate the retrieval of the 
gifts. And of course that is in conflict with the testimony of Monica 
Lewinsky.
  Further, they argue that Monica Lewinsky's time sequence as to when 
she went to pick up the gifts, when Betty Currie went to pick up the 
gifts, destroys her credibility. Her time sequence does not fit. Let's 
look at her testimony on this particular point. This is what Betty 
Currie has testified to, and this is exhibit H-A in your folder on my 
presentation; exhibit A. These are statements of Betty Currie in her 
deposition testimony about when she picked up the gifts.
  Now the first one is her testimony on January 27, 1998. She was asked 
when she picked up the gifts, and she said, ``Sometime in the last 6 
months;''
  Now, in May she was asked when she picked up the gifts, and she said, 
``A couple of weeks'' [after the December 28 meeting]; in the May 6 
testimony, it was after the 28th meeting; and then in her last 
testimony, July 22, in the ``fall maybe.''
  That is Betty Currie's testimony. Contrast that to that of Monica 
Lewinsky.
  This is her recollection as to when Betty Currie came to pick up the 
gifts. You will see that she has testified in her proffer of February 
1, ``Later that afternoon''; July 27, she said Currie called ``several 
hours after leaving the White House;'' ``about 2 o'clock''; ``Later in 
the day''; and August 6, called ``several hours'' after Lewinsky left 
the White House. Her memory is fairly good about this.
  The question is, the cell phone call, which really corroborates what 
Monica Lewinsky said, that it was Betty Currie who called to retrieve 
the gifts, and said the President said, ``You have something for me,'' 
or something to that effect. That came about 3:30. The cell phone 
record was retrieved after Monica Lewinsky's testimony.
  Now, does this destroy her credibility, particularly in contrast to 
that of Betty Currie? I think it reflects that you are trying to 
remember--you remember that it was a call specifically from Betty 
Currie to retrieve the gifts. At the time, she said it was in the 
afternoon. I think it corroborates her because she has never had an 
opportunity to look at the cell phone record--neither has Betty 
Currie--to refresh her recollection and trigger it and see what that 
produces.
  Now, that is on the gift issue.
  I think they say, well, what would it add to call witnesses? How are 
you going to determine the truthfulness of this issue? Juries across 
the country do it by calling witnesses.
  Now in this particular case, it should be noted that all other 
testimony of Betty Currie--I think her last one was about July 27 
before the grand jury--all of it preceded the testimony of William 
Jefferson Clinton which was in August before the grand jury. The point 
is, because of the rush, the push, the independent counsel didn't call 
anybody back to the grand jury to re-question them after the 
information received from William Jefferson Clinton.
  So there are a lot of unanswered questions, perhaps, that were 
generated by his testimony. The 1-minute call was raised: How in the 
world could this be expressed in 1 minute--the conversation that Betty 
Currie called to

[[Page S883]]

retrieve the gifts? If you look at Monica Lewinsky's description of 
that call--excuse me, let me read from her grand jury transcript. She 
was asked about the call, and her answer was,

       What I was reminded a little bit, jumping back to the July 
     14th incident where I was supposed to call back Betty the 
     next day, but not getting into the details with her that this 
     was along the same lines.

  Question to Monica Lewinsky:

       Did you feel any need to explain to her what was going to 
     happen?

  Her answer:

       No.

  In other words, this was a cell phone call. It was a cryptic call. It 
was about retrieving gifts that were under subpoena. It was a short 
conversation. It doesn't take a minute to say, ``The President 
indicated you had something for me''--Monica knows what she is talking 
about--``Come over,'' and that is the end of the conversation--
certainly would not take 1 minute.
  So all of the evidence is consistent with Monica's testimony.
  But let's look at the big picture on the gifts. The evidence was 
concealed under the bed. It was evidence that was concealed in a civil 
rights case; secondly, it was under subpoena; thirdly, the President 
knew it was under subpoena; and fourthly, Monica Lewinsky's testimony 
indicates that it was, the call from Betty Currie, at the direction of 
the President--and I am arguing there, a little; please understand 
that--which initiated the retrieval of the evidence that was under 
subpoena.
  That is the big picture on this. I believe we have made our case on 
that, and I believe it is strong, and I think it also justified the 
hearing of the testimony to resolve the remaining conflict.
  The CHIEF JUSTICE. This is to the President's counsel from Senators 
Leahy, Schumer, and Wyden:

       Notwithstanding the previous response by the House manager, 
     does not the evidence show:
       (a) Ms. Lewinsky's testimony; it was her idea to give the 
     gifts to Betty Currie?
       (b) the President's testimony; that he never told Betty 
     Currie to retrieve the gifts from Ms. Lewinsky?
       (c) Betty Currie's testimony; that it was Ms. Lewinsky, not 
     the President, who asked her to pick up the gifts? And,
       (d) the fact that the President gave Ms. Lewinsky 
     additional gifts on the very morning that he is alleged to 
     have asked for them back?

  Mr. Counsel RUFF. Mr. Chief Justice, I am not sure I managed to 
capture all four subpoints of that question but I will do my best.
  It is interesting that the managers now suggest that the great 
discovery of the 3:32 phone call that was so much the heart and soul of 
Mr. Schippers' presentation and ultimately of theirs is really just a 
slight glitch in the timetable.
  Yes, it is perfectly possible, I suppose, that Ms. Lewinsky could 
have just missed by an hour and a half, but she did say, three times, 
once under oath, and twice to the FBI, which is almost the same, that 
it was 2 o'clock, not 3:30.
  So if you are going to ask, consistency, good memory, as Ms. Lewinsky 
is supposed to have on this matter, she was consistent, but you have to 
ask, if it really happened at 2 o'clock as she recalled, what is the 
meaning of the 3:32 call?
  Putting aside that dispute, the question itself reflects the essence 
of our position on this. First of all, there are only two people 
present at the moment in which, theoretically, the managers would have 
that the President urged Betty Currie to go off and pick up the gifts. 
The President of the United States and Betty Currie, they both 
testified, flatly, that such a conversation did not occur. Do the 
managers really anticipate if Ms. Currie were brought into the well of 
the Senate and looked straight in the eye by one of the prosecutors on 
this team, she would say, ``You got me, I had it wrong. The President 
really did tell me to do something but I have testified 
straightforwardly and honestly''?
  He didn't say, as my colleague Mr. Kendall indicated--that is wish 
and hope, and it has no basis in the allegation.
  And of course the managers have thought up a good excuse for why it 
is that the President is giving Ms. Lewinsky more gifts on the very day 
when he is conspiring with her to hide them: That somehow it is a 
gesture, a message being sent, that because of these gifts she is 
still--she is someone who is being roped into a conspiracy of silence.
  Aside from the fact that there is not one single, not one single, 
iota of evidence to support that wishful thinking, is it really likely, 
even given the managers' perception of this matter, that by giving Ms. 
Lewinsky the bear that my brief but important colleague Senator Bumpers 
referred to yesterday, and a pin of the New York skyline, and a couple 
of other things, including a Radio City Music Hall scarf--I may have 
missed some--that some great message was being sent to Ms. Lewinsky, 
that this collection of ``valuable'' items was a message to keep the 
faith, stay inside a conspiracy? I don't think so.

  Thank you, Mr. Chief Justice.
  Mr. LOTT. Mr. Chief Justice, may I inquire about the time that has 
been used on each side?
  The CHIEF JUSTICE. I will ask the Parliamentarian.
  The counsel for the White House has consumed 57 minutes. The counsel 
for the managers have consumed 54 minutes.
  Mr. LOTT. I believe we have a question at the desk.
  The CHIEF JUSTICE. This question is directed to the House managers, 
proposed by Senators Snowe, Ashcroft, Enzi, Burns, Smith of New 
Hampshire, and Craig:

       At the end of the Jones deposition, Judge Wright admonished 
     the parties that, ``This case is subject to a protective 
     order regarding all discovery, and all parties present, 
     including the witness, are not to say anything whatsoever 
     about the questions they were asked, the substance of the 
     deposition . . . any details, and this is extremely important 
     to this court.'' Within hours of Judge Wright's admonition to 
     all parties not to discuss details of the deposition, didn't 
     the President telephone Betty Currie to ask her to make a 
     rare Sunday visit to the Oval Office?

  Before answering, the Chair wishes to make a correction in response 
to the inquiry from the majority leader. The time used by the House 
managers is 64 minutes, rather than 54 minutes.
  Mr. Manager ROGAN. I trust that doesn't mean I have to sit down, Mr. 
Chief Justice.
  The CHIEF JUSTICE. It is not retroactive.
  Mr. Manager ROGAN. Maybe I should quit while I am ahead.
  I thank the Senators for their question. That is absolutely true, and 
we know that because Betty Currie testified to that. She said it was 
very rare to receive a phone call from the President to ask her to come 
down to the White House on Sunday. A day after the President testified 
in a deposition, when he was specifically admonished by the judge that 
he was not to discuss the deposition, he was not to detail it with 
anybody, he was not to go into any of those factors, the President 
called Betty Currie down to the White House and he made some specific 
statements to her. He said to her:

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

  When the President was asked 8 months later:

       Why did you call Betty Currie down to the White House and 
     pose not questions, but statements to her?

  When he was asked why he called Betty Currie down to the White House 
and said that to her, this is how the President responded:

       I was trying to figure out what the facts were. I was 
     trying to remember.

  That is patently false because in August when the President 
testified, embarrassment was no longer on the table. The President was 
admitting that he had, as he called it, an improper relationship with 
Ms. Lewinsky. So why did he call Betty Currie down there? He called her 
down there that day after the deposition, in violation of the judge's 
order, because throughout his deposition he kept referring to Betty 
Currie as the fountain of information. If you read the deposition 
testimony, you see the President reiterating over and over, ``Monica 
came to see Betty,'' and, ``You would have to ask Betty.'' He made 
innumerable references to Betty Currie.

[[Page S884]]

  That was his invitation to the Jones lawyers to depose Betty Currie, 
and we know from Mr. Manager Hutchinson's presentation earlier that 
that is what happened. Betty Currie ended up with a subpoena from the 
Jones lawyers, and the President could not waste any time; he had to 
make sure, with discovery closing, that he got to Betty Currie right 
away, to make sure that the story was straight.
  How can one possibly say that he was posing the statements to Betty 
Currie to remember, when the President knew that in fact he was alone 
with Monica, that Betty wasn't always there with him when Monica was in 
the Oval Office with him? She would not be able to tell him that Monica 
came on to him and not the other way around. This is patently 
ludicrous. There is no reasonable explanation.
  Mr. Chief Justice, if I have a minute left, I would like to yield to 
Mr. Manager Hutchinson.
  The CHIEF JUSTICE. Yes.
  Mr. Manager HUTCHINSON. Thank you. Just a quick point on that, 
because there was a question raised that the testimony of Betty Currie 
in that circumstance was that she, I believe, did not feel pressured. 
The President's counsel makes a big issue of that, as if this is a 
fatal defect. It is not a fatal defect.
  In fact, it is really irrelevant because the issue is witness 
tampering, obstruction of justice. The question is the President's 
intent, not how Betty Currie felt under that circumstance. She can 
characterize what she wishes. To me, it is an example like, if you as a 
lawmaker are presented a bribe of $100,000 to cast your vote in a 
particular way, you might not be tempted in the slightest. You might 
say, ``Go your own way.'' But it is still attempted bribery, attempted 
obstruction of justice. So that is a critical question. This is one 
element of obstruction of justice where each element has been met. The 
proof is clear, without any question of a doubt, as well as the rest of 
it.

  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. This is a question to White House counsel from 
Senator Kennedy:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question?

  Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Let me start by 
actually responding briefly to the question that was asked, which is 
whether in fact the President violated the gag order. I think it is 
important that we be very direct and candid on this so the record is 
clear.
  There is no question that a gag order was issued, that it had been in 
existence for some 3 months, and it applied to the parties and lawyers. 
It is important, I think, to understand the purpose for which it was 
entered.
  During the months of litigation in the Jones case, we have seen a 
veritable flood of leakage out of the deposition, all of which was 
adverse to the President. The judge made very clear that her concerns 
were revelations to the press.
  I think it is fair to say that even if one might argue that the 
President talking to his secretary on the day after a deposition was 
somehow talking to a person that he should not after his deposition, I 
suggest that any person covered by--certainly a party covered by a gag 
order, particularly the President of the United States, is free to 
speak with those from whom he needs assistance in the preparation of 
his defense. That, of course, is at least in part what the President 
has said here.
  But let me be very clear that, to the extent President overstepped 
his bounds in terms of this gag order, that is a matter of concern that 
the judge could take up, or the parties could take up. And as far as I 
know--probably because their sense of shame would not permit it--the 
parties on the other side of the Jones case have never suggested that 
this was a problem. Indeed, it was not a problem until we heard about 
it recently in this Chamber.
  More specifically, with respect to the substance of Mr. Manager 
Rogan's response, and Manager Hutchinson's response, my colleague, Ms. 
Mills, told you what the essential human dynamic was that was going on 
with the President, who had just gone through a deposition in which his 
worst fears were being realized--his life, in terms of his relations 
with his family, was beginning to unravel. He could see it coming. He 
could see the press coming at him. They were already on the Internet. 
There was no question in his mind that his worst fears of public 
disclosure were about to be realized.

  Put yourselves in a comparably traumatic human situation and ask 
whether you wouldn't reach out to have this kind of conversation with 
the one person you knew who was the most familiar with the facts that 
Monica Lewinsky had, indeed, been in and out of the White House, 
exchanged gifts, and done all the other things that Betty knew about, 
even though she didn't know about the primary extent of their 
relationship. But ask yourself also whether, in fact, under any 
circumstances, either on the 18th of January when the first 
conversation occurred, or on the 20th of January when we believe the 
second conversation occurred, if there is really any reason to believe 
that the President had somehow invited Jones lawyers to make Betty 
Currie a witness, because, as my colleague, Ms. Mills, put it most 
sharply and most clearly, the last thing in the world the President of 
the United States wanted to do was to invite anybody to depose or have 
testify the one woman who knew that, indeed, there had been gifts 
exchanged, and visits, and letters. It simply doesn't make sense.
  Lastly, let me, I suppose, just ask as the question has been put to 
you on a couple of occasions, what is it that would come from calling 
witnesses in the case? Ms. Currie has testified not just once, but a 
multiple of occasions about the events, no new facts had come out, and 
the only thing that you would hear would be a repetition of the bottom-
line assessment. I could have said wrong when he said right and I was 
under no pressure whatsoever.
  Thank you.
  The CHIEF JUSTICE. This is from Senators Gramm of Texas and Smith of 
New Hampshire to White House counsel:

       If you said that our oath to impartial justice required us 
     to allow the President to have a handful of witnesses to 
     defend himself, don't you believe that all 100 Senators would 
     say ``yes''? How can we do impartial justice by turning 
     around and denying the House that same right?

  Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
  Senators, the answer to that question, I think, is really very 
straightforward and easy and the fog of some of the discussion which 
has been had on the subject over the last days and weeks ought not to 
get in the way of this.
  The House of Representatives, at least as they are described by the 
managers they sent to you--I don't know how to put this gently--
violated their constitutional responsibility in the handling of this 
matter. They characterized themselves as nothing more than a grand 
jury, nothing more than a screening device between the allegations 
transported to them by the independent counsel, and the ultimate vote a 
month and 3 days ago. They felt, as they have reiterated constantly 
during that process, that they knew everything they needed to know not 
to make the judgment; that it was, you know, worth sending on to the 
Senate for them to think about. But they knew everything they needed to 
know, as you heard them say so eloquently and so forcefully here, to 
remove the President of the United States from office. Now they are 
saying to you, ``Well, maybe not. There really isn't enough here to 
make that important critical judgment.''
  So having abandoned--not to put it too sharply--what I view and I 
think most would view as their obligation to do the right 
constitutional thing a month ago, they turn to us and say, ``Well, 
protect our managers rights to just add a little bit and see if we can 
make it, and then we will turn to you and see if you want to call 
witnesses in response.''

  Senators, I really think they should have done it right the first 
time. And they have told you--not back then, but they have told you 
now--that they have done it right, because otherwise they wouldn't, as 
a matter of their responsibility, be able to stand in the Well of this 
Senate and urge you to remove the President of the United States. How 
could they make that recommendation if they had any uncertainty? If 
they didn't believe what was

[[Page S885]]

in those five volumes was sufficient under the day, they couldn't. They 
couldn't.
  Our rights are these for the President of the United States: He is 
entitled to ask you whether when the House of Representatives voted to 
impeach him they had enough evidence to make one of the most serious 
constitutional judgments that is entrusted to them. And it can't be 
that because they didn't do it right then, that you and we are now 
asked to extend this process just so that maybe if they go to the right 
person and ask the right question, or find the right document something 
will emerge that translates those five volumes into something that 
really is a constitutional basis for the removal of the President.
  The CHIEF JUSTICE. This is from Senator Feingold to the House 
managers.

       In light of the allegations in the articles of impeachment 
     that the President is guilty of providing ``perjurious'' 
     statements to a grand jury and has ``obstructed . . . the 
     administration of justice,'' is the appropriate burden of 
     proof for these particular articles ``beyond the reasonable 
     doubt,'' as it would be in an ordinary criminal proceeding? 
     Should a Senator vote to convict the President based on his 
     allegedly committing these Federal statutory crimes if each 
     of the elements of the crimes have not been proven beyond a 
     reasonable doubt?

  Mr. Manager BUYER. Thank you, Mr. Chief Justice. And I would say to 
Mr. Ruff I violated no oath nor the Constitution, and I think the House 
managers, in fact, followed the Constitution when we served the 
articles of impeachment. And I also note, for historical note as well, 
Mr. Ruff, you know that in the impeachment trial of Andrew Johnson, the 
House didn't even hold a single hearing.
  So I just want to be very up front and fair here.
  With regard to the question that was asked by the gentleman, the 
Constitution does not discuss the standard of proof for impeachment 
trials. It simply states that the Senate shall have the power to try 
all impeachments. Because the Constitution is silent on the matter, it 
is appropriate to look at past practice of the Senate.
  Historically, the Senate has never set a standard of proof for 
impeachment trials. In the final analysis to the question, one which 
historically has been answered by individual Senators guided by your 
individual conscience. Now, you will note that earlier one of the White 
House counsel stood up--and they like to talk to you about criminal 
statutes and cite that it requires the proof beyond a reasonable doubt. 
That is not so. This argument has been rejected by the Senate 
historically.
  For instance, in the impeachment trial of Judge Harry Claiborne, at 
that time the counsel for Judge Claiborne moved to designate beyond a 
reasonable doubt as the standard of proof for conviction. The Senate 
overwhelmingly rejected the motion by a vote of 17 to 75. You rejected 
that as a standard of proof.
  In the floor debate on the motion, the House managers emphasized that 
the Senate has historically allowed each Member to exercise his 
personal judgment in these cases. And during the impeachment of Judge 
Hastings, Senator Rudman, in response to a question about the 
historical practice regarding this standard of proof that there has 
been no specific standard, ``You are not going to find it. It is what 
is in the mind of every Senator, and I think it is what everybody 
decides for themselves.''
  The criminal standard of proof again is inappropriate for impeachment 
trials. The result of conviction in an impeachment trial is removal 
from office, not punishment. As the House argued in the trial of Judge 
Claiborne, the reasonable doubt standard was designed to protect 
criminal defendants who risked forfeitures of life, liberty, and 
property. This standard is inappropriate here because the Constitution 
limits the consequences of a Senate impeachment trial to removal from 
office and disqualification from holding office in the future, 
explicitly preserving in the Constitution the option for a subsequent 
trial in the courts.
  In addition, the House argued in the Claiborne trial the criminal 
standard is inappropriate because impeachment is, by its nature, a 
proceeding where the public interest weighs more heavily than the 
interest of the individual. Again, the criminal standard of proof, 
i.e., beyond a reasonable doubt, is inappropriate in an impeachment 
trial and, Senators, you are to be guided by your own conscience in 
your decision.
  The CHIEF JUSTICE. The President's counsel are asked by Senators 
Thompson, Snowe, Enzi, Frist, Craig, DeWine, and Hatch:

       Four days after the President's Paula Jones testimony, 
     wherein he testified under oath about Ms. Lewinsky, why would 
     Dick Morris conduct a poll on whether the American people 
     would forgive the President for committing perjury and 
     obstruction of justice?

  Mr. Counsel RUFF. I couldn't find any volunteers. (Laughter.)
  You know, I think the honest answer has two pieces to it. I don't 
have a clue, and it ultimately--although I know it rings all sorts of 
bells and the use of that name conjures up all sorts of images, and 
that is why I am sure it finds its way into this process from the 
managers' side. But if you look at the record, other than the value 
that may come to the managers of making reference to that 
conversation--and I have no idea whether the conversation ever occurred 
or not--it seems to me of absolutely no relevance whatsoever because, 
as far as I am able to represent to you, and if the conversation 
occurred, there is nothing in this record that suggests that it had any 
impact on the conduct of the President or any other person. We know 
that he did wrong. We know that he misled the American people when he 
said that he had not had relations with Ms. Lewinsky.
  I am not sure what a conversation with Mr. Morris, if it occurred, or 
a poll, if it was asked for, or what the motivation behind that poll 
means once you come to grips with the fact that the President of the 
United States was deceiving his family, his child, his wife, his 
colleagues, and the American people in that period in January.
  Beyond that puzzlement about relevance, other than the surmise that 
there must be some dark linkage between the poll and some legal issue 
before you--and I haven't seen it--I am really otherwise unable to 
answer your question.
  The CHIEF JUSTICE. Senator Lieberman asks the House managers:

       The House managers argue that the President should be 
     removed from office because of the inconsistency between his 
     actions and the President's duty to faithfully execute the 
     laws. Given that any criminal act would arguably be at odds 
     with the President's duty to execute the law, is it your 
     position that the President may be impeached and removed for 
     committing any criminal act, regardless of the type of crime 
     it is? If the President were convicted of driving while 
     intoxicated, would that be grounds for removal? What if he 
     were convicted of assault?

  Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. Excellent question.
  The answer is no, I would not want my President removed for any 
criminal wrongdoing. I would want my President removed only when there 
was a clear case that points to the right decision for the future of 
the country. Just remember this. Our past is America's future in terms 
of the law. I would not want my President removed for trivial offenses, 
and that is the heart of the matter here.
  I think I know why he took a poll. I think I know very well what he 
was up to: That his political and legal interests were so paramount in 
his mind, the law be damned and anybody who got in his way be damned.
  Those are strong statements, but I think they are borne out by the 
facts in this case, and that is what I would look for. I would look for 
a violation of the law that is the dark side of politics. I would look 
for something like Richard Nixon did. Richard Nixon lost faith with the 
American electoral process. He believed his enemies justified being 
cheated; that when his people broke into the other side's office, when 
confronted with that wrongdoing, he legitimized it. He didn't trust the 
American people to get it right, and he went out in shame.
  My belief is that this President did not trust the American legal 
system to vindicate his interest without cheating. My belief is that 
when he went back to his secretary, it is not reasonable that he was 
trying to refresh his memory and get his thoughts together. My belief 
is that he tried to set up a scenario that was going to make a young 
lady pay a price if she ever decided to cooperate with the other side. 
I believe he did not need to refresh his memory whether or not Monica 
Lewinsky wanted to have sex with him

[[Page S886]]

and he couldn't. I don't believe he was refreshing his memory when he 
asked his secretary: I never touched her, did I?
  I believe that you should only remove a President who, in a 
calculated fashion, puts the legal and political interests of himself 
over the good of the Nation in a selfish way, that you only should 
remove a President who, after being begged by everybody in the country, 
don't go into a grand jury and lie, and he in fact lied. Nothing 
trivial should remove my President. We need to try this case, ladies 
and gentlemen, because you need to know who your President is.
  Thank you.
  Mr. LOTT addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. I would like to note that in the response to the previous 
question, question probably No. 28, that it was not filed by the 
managers; it was filed by a group of Senators.


                                 Recess

  Mr. LOTT. With that, I would ask unanimous consent that we take 
another brief recess of 15 minutes.
  There being no objection, at 4:18 p.m., the Senate recessed until 
4:40 p.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Thank you, Mr. Chief Justice. Mr. Chief Justice, I had 
indicated that we would probably go 5 hours today, which would take us 
to approximately 6 o'clock. But I think we would certainly go for at 
least another hour or so, perhaps not quite all the way to 6 o'clock, 
but we will talk to each other and look for a signal from the Chief 
Justice about exactly when we would end the day's proceedings.
  At this point, Mr. Chief Justice, I believe we are ready for the next 
question. I believe the previous question came from Senator Lieberman; 
therefore, I send the next question to the desk.
  The CHIEF JUSTICE. This question is from Senators Thompson and Snowe, 
to the House managers:

       Do the managers wish to respond to the answer given by the 
     President's counsel with regard to the poll taken by Dick 
     Morris?

  Mr. Manager BRYANT. Thank you, Mr. Chief Justice.
  Just before we recessed, there was a question directed to the 
President's defense attorneys regarding the Dick Morris poll. One of 
the responses to it was that it was basically irrelevant. I think it is 
one of the more important things that has occurred in this case, 
because--and I think it is very important--because we get a look inside 
that window that is blocked for the most part throughout these 
proceedings. We really get an eye into the minds that are working here. 
Not only does it say volumes about a person who has to take a poll and 
decide whether or not to tell the truth, it also provides a great deal 
of information toward the actual state of mind, the actual willfulness, 
the actual intent of the actor in this case who has had the poll taken.
  Let me just read briefly from the referral regarding this incident. 
It talks about how Mr. Morris tells the President that this country has 
a great capacity for forgiveness and we should consider tapping into 
it. The President responds, ``Well, what about that legal thing, you 
know, the legal thing, you know, Starr and the perjury and all?'' And 
they go on and have a discussion and decide to take a poll that night. 
Now this is January 21.
  And in all fairness to the President, it is not clear from the record 
that I have that he had had a conversation with Sidney Blumenthal and 
John Podesta that day, before this effort--the poll was taken, and the 
results reported that same day, late that evening--or whether the 
conversation with Mr. Podesta and Mr. Blumenthal occurred afterwards. 
Those are the ones, in essence, where he questioned what went on, and 
also with Mr. Blumenthal fairly well attempted to discredit Ms. 
Lewinsky, too. And you will see how that may or may not tie in, again, 
depending on the chronology. But certainly all those events happened 
the same day.
  Mr. Morris takes the poll and reports later that day, later that 
evening, the same evening, the 21st, the results of that, and basically 
says the voters are willing to forgive the President for adultery but 
not for the perjury or the obstruction of justice. And then according 
to Mr. Morris, the President answers, ``Well, we['ll] just have to win, 
then.'' And later the next day the President has a followup 
conversation with Mr. Morris, in the evening, and says that he is 
considering holding a press conference to blast Monica Lewinsky out of 
the water. But Mr. Morris urges caution. He says, ``Be careful.'' 
According to Mr. Morris, he warned the President not to be too hard on 
Ms. Lewinsky because ``there's some slight chance that she may not be 
cooperating with Starr, and we don't want to alienate her by anything 
we're going to put out.''

  That is chilling. It truly is chilling that our chief law enforcement 
officer, the person who sends our soldiers off as Commander in Chief, 
to possibly die, the person who appoints the Federal judges, nominates 
Supreme Court Justices, appoints U.S. attorneys around the country who 
try 50,000 cases a year, has that mentality. And it goes to the state 
of mind here. And the willfulness and the intentions, from that point 
forward, certainly are reflected in the perjury and the efforts to 
continue the obstruction, the pattern, the overall pattern--not just 
one little incident.
  And I urge you, Senators, as you consider this, to consider it 
carefully. And as I said in my opening remarks, do not isolate little 
facts here and there and take the spins. But in every--every--alleged 
act, ask yourselves the two questions--whether it is the hiding of the 
gifts, the filing of the false affidavit, letting Bob Bennett use that 
false affidavit while sitting still, talking to Sidney Blumenthal and 
John Podesta about what did not really happen, the job search--ask 
them, every one of those, What was the result, what was the result of 
those actions?
  I think in every case you will see that something occurs to block the 
Paula Jones case, the discovery of evidence, the receipt of truthful 
testimony. And ask yourselves the second question: Who benefits from 
that? And I will guarantee you every time, in every one of those 
instances, it is the President who benefits, who derives the effect of 
that. And he is either the luckiest man in the world because of this 
and having people willing to commit crimes for him or he is somewhere 
in the background orchestrating this.
  The CHIEF JUSTICE. This is from Senators Leahy, Harkin, Dorgan, and 
Reid of Nevada, to the President's counsel:

       In his opening remarks to the Senate, Manager McCollum 
     stated, ``I don't know what the witnesses will say, but I 
     assume if they are consistent, they'll say the same thing 
     that's in here,'' referring to the 60,000 page record 
     currently before the Senate. I see no reason to call 
     witnesses to provide redundant testimony.
       Could you comment on Mr. McCollum's statement and clarify 
     also the timetable which might have to be considered for 
     discovery if witnesses are called?

  Mr. Counsel KENDALL. Mr. Chief Justice, I think, as I said in an 
earlier question, that the answers the witnesses would provide are 
already contained in the five volumes of testimony. As I am sure you 
are aware, when I say five volumes, that is not really five volumes, 
because on many of the pages the grand jury transcript is shrunk, 
called a miniscript, so you get 6 pages of testimony per page. Your 
eyesight may fail you before you get through. The witness testimony is 
there. I don't think calling the witnesses again will add anything to 
that.
  In terms of a discovery schedule, it is hard to say, because we have 
had no opportunity to shape the record. We don't know what we will 
need. We would need documents. We would need testimony. One deposition 
could lead to another. I think we are talking a matter of a few months 
to finally get through it.
  But I think the real question is, What questions are there that have 
not been asked? I think if you ask that question, What questions are 
there that have not been asked, you will find there are no questions. 
In fact, there are questions that have been asked a number of times.
  Now, Mr. Manager Hutchinson told you that, Well, the independent 
counsel didn't have a chance to ask questions after the President's 
testimony. Indeed he did. You will see that Ms. Lewinsky was examined 
after the President testified, both in the grand jury and in FBI 
interviews. I don't

[[Page S887]]

think that witness interviews or further evidentiary proceedings will 
add in any measurable way to the record before you.
  The CHIEF JUSTICE. This question is directed to the House managers by 
Senators Hatch, Thompson, DeWine, and Warner:

       The unanimous consent agreement pending before the Senate 
     permits the filing of a motion to dismiss next week. What 
     legal standard should the Senate apply, and applying that 
     standard to this case, what specific acts of Presidential 
     misconduct would a Senator deem unworthy of impeachment by 
     voting for a motion to dismiss?

  Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, the 
President wants all of the protections of the criminal trial beyond a 
reasonable doubt, standard of proof, strict pleadings, but yet deny us 
the right to call any witnesses.
  You know, in the House we did not call witnesses and there is a 
reason. There are several reasons for that. First of all, we were 
operating under time constraints which were self-imposed but I promised 
my colleagues to finish it before the end of the year. I didn't want it 
to drag out. We had an election intervene, we had Christmas, but we 
did--because we had 60,000 pages of sworn testimony, transcripts, 
depositions, grand jury testimony, and we had a lower threshold.
  The threshold in the House was for impeachment, which is to seek a 
trial in the Senate. We could not try the case in the House. The 
Constitution gives the Senate the exclusive right to try the case. All 
we could do was present evidence sufficient to convince our colleagues 
that there ought to be a trial over here in the Senate. And we did 
that.
  But now that we are over here--by the way, we were roundly criticized 
for not producing any witnesses. And I might add, Mr. Kendall has said 
repeatedly they did not have a fair discovery process; they didn't have 
any witnesses and weren't permitted to cross-examine.
  I want to tell you, repeatedly--repeatedly--I invited the President's 
lawyers, the staff of the Democrats on the House Judiciary Committee: 
Any witnesses you want, call them; give me their name and we will bring 
them in and you can cross-examine them to your heart's content.
  No, they never did. Finally, they brought in some professors and Mr. 
Ruff testified, Mr. Craig testified. But they didn't want, in fact, any 
witnesses. That is the last thing they wanted. They had full 
opportunity to call them, and I really, really, bristle when they say, 
``You were unfair.'' We wanted to be fair. We tried to be fair because 
we understand you need a two-thirds vote to remove the President. We 
needed Democratic support. So far we had none. That is OK. Let the 
process play itself out. But we were fair.
  And when Mr. Kendall says they had no opportunity, he means they 
didn't avail themselves of an abundant opportunity to call witnesses.
  Now, a motion in lieu of a trial should provide that all inferences, 
all fact, questions, be resolved in favor of the respondent, the House 
managers. I don't think that is going to happen. I think by dismissing 
the articles of impeachment before you have a complete trial, you are 
sending a terrible message to the people of the country. You are 
saying, I guess, perjury is OK, if it is about sex; obstruction is OK, 
even though it is an effort to deny a citizen her right to a fair 
trial. You are going to say that even when judges have been impeached 
for perjury--and, by the way, the different standards between judges 
and the President: This country can survive with a few bad judges, a 
few corrupt judges; we can make it; but a corrupt President, survival 
is a little tougher there. So there is a difference, and the standard 
ought to be better and more sensitive for the President because the 
President is such an important person.

  Look, the consequences of cavalier treatment of our articles of 
impeachment, your articles of impeachment: You throw out the window the 
fact that the President's lies and stonewalling have cost millions of 
dollars that could have been obviated. The damage to sexual harassment 
laws--you think they are not going to be damaged? They are, seriously, 
making it more difficult to prosecute people in the military or 
elsewhere for perjury who lie under oath. Those are serious 
consequences.
  I know, oh, do I know, what an annoyance we are in the bosom of this 
great body, but we are a constitutional annoyance, and I remind you of 
that fact.
  Thank you.
  The CHIEF JUSTICE. This question is from Senator Durbin to counsel 
for the President:

       Can you comment on Manager Hyde's contention that the 
     President was free to call witnesses before the House, but 
     that the House did not have the time to do so, or to call any 
     witnesses?

  Mr. Counsel RUFF. Mr. Chief Justice, I think it is important to 
understand the reality of what is going on in the House. Most of you 
know something of it by simply the virtue of press coverage. But let me 
tell you what it was like from the perspective of the President.
  From the very first moment when we began to speak with 
representatives of the Judiciary Committee--whether senior staff or the 
chairman, who is always gracious--the one thing we said was, ``Please 
tell us what we are charged with, please.'' And we went from Mr. 
Schippers' extensive opening discussion of 15 possible violations of 
law to an ever-shifting body.
  It wasn't until I was within literally a few minutes of completing my 
testimony on December 9 that we were ever honored with anything that 
looked like a description of the violations that the President was 
charged with, and those came in the form of hard draft articles of 
impeachment.
  I think, indeed, if you will all remember back--if any of you were 
watching that day--I was actually given a draft copy of those articles 
just as I was completing my testimony, and then they were snatched back 
because it was premature for the President's counsel at 4:30 in the 
afternoon on December 9 to know what the President was charged with.
  Now, one thing you generally like to know as a litigator in any 
forum, before you start thinking about producing exculpatory evidence, 
as we were asked to do, or thinking about calling witnesses, is to sort 
of know what you have to defend against. In any forum, whether it is 
criminal or civil or legislative, the accused generally has that right.
  Beyond that, as you all know--indeed, as Mr. Manager Hyde has 
indicated--we were operating on a very fast track. We asked, for 
example, when the issue arose as to whether or not the staff of the 
committee would take depositions, whether we would be entitled to be 
present, because we knew that none of them was on the calendar to be 
called in any open hearing, and we were denied that opportunity, 
theoretically because under the policies of the committee it was not 
appropriate for the President's counsel to be present at the only 
opportunity that certain witnesses would ever have to testify under 
oath.
  It seems odd to me, when you come right down to it, that we should be 
accused of failing in our duty, with the burden on the House Judiciary 
Committee to make its case and our right to respond, that the House, 
having determined never to call a witness who knew anything firsthand, 
we should somehow be charged with having to fit into this discovery 
process. Discovery is very different, as all of you understand, from 
calling a witness--whoever it may be--in public, before the full 
Judiciary Committee, and having the opportunity to examine. We were 
excluded from whatever true discovery process might have been 
involved, and left only with this notion that, in the absence of any 
specific charges, we were to call witnesses to defend ourselves. I 
suggest to you that in any setting that we are used to, whether those 
of you who are litigators or those of you who are simple observers of 
the justice system, that is a very long process, indeed.

  The CHIEF JUSTICE. This question is from Senator Nickles to the House 
managers:

       Which of the President's statements not already discussed 
     today do you believe to be of particular importance to the 
     perjury charge?

  Mr. Manager ROGAN. Thank you, Mr. Chief Justice. I thank the Senator 
for the question. I will keep one eye on the clock and stay within the 
5-minute rule, so obviously I won't be able to

[[Page S888]]

give a comprehensive list of that which we submit to the Senate is 
perjurious. Let me try to get through at least one or two.
  One example that I invite the Senate's attention to is the answers 
the President gave in the grand jury about his attorney using Monica 
Lewinsky's false affidavit. Bear in mind, again, the predicate facts 
for this. Judge Susan Webber Wright, in the deposition, had ordered the 
President to answer questions relating to whether he ever had sexual 
relationships with subordinate female employees in the workplace as 
Governor or as President, because that is fair game in any sexual 
harassment suit. Victims of harassment in the workplace are entitled to 
discover that information.
  The President was able to get Monica Lewinsky to file a false 
affidavit in the Jones deposition. And when that affidavit was in hand 
and filed, as soon as the attorney for Paula Jones asked the first 
question about Monica Lewinsky, the President's attorney, Mr. Bennett, 
put forth that affidavit and objected to the attorneys even asking the 
question. He said, ``There is no good-faith belief that this question 
should be asked because of the affidavit.'' And the President did 
absolutely nothing to correct the record.
  When this came up in the grand jury, the President was asked about 
the affidavit and the statement that Mr. Bennett made to Judge Wright 
that ``there was no sex of any kind, in any manner, shape or form.'' 
And the attorney, Mr. Bittman, at the grand jury, referred to that and 
said to the President, ``That statement is a completely false 
statement,'' and asked the President to explain. This was the 
President's answer:

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

  Then the President went on to say:

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

  Now, rather than simply give a truthful and complete answer to the 
grand jury in their criminal investigation, the President gave a 
bifurcated answer that essentially invited the grand jury to accept one 
of two explanations.
  Explanation No. 1: I wasn't paying attention to my attorney when he 
said that. I was busy thinking of other things.
  Or, if you don't like that explanation: I was paying such specific 
attention to what my attorney was saying that I focused on the tense of 
what the word ``is'' meant--as if to suggest when Mr. Bennett said that 
there is no sex of any kind, he meant there was no sex that day because 
he was there being deposed before Judge Wright. Under either scenario, 
the President absolutely failed in his obligation to provide the grand 
jury conducting a criminal investigation into possible obstruction in 
the Paula Jones case--he failed in his obligation to tell the truth, 
the whole truth, and nothing but the truth.

  You have seen the evidence just from the initial presentation. No. 1, 
when the President said he wasn't paying attention, that was negated by 
watching the videotape. The President was paying very close attention. 
Why was he paying such close attention? Because the fate of his 
Presidency hung on the answer to that question. This is the most 
important question in the President's political life. Is he going to 
have to disclose information that he thought would help destroy his 
Presidency?
  You don't even have to accept the representation from the videotape 
to know the President testified falsely, because Mr. Bennett did us the 
favor of not asking us simply to rely on watching the President pay 
attention to the testimony. Mr. Bennett then read the President the 
portion of Ms. Lewinsky's affidavit in which she denied having a sexual 
relationship with the President, and he asked the President if Ms. 
Lewinsky's statement was true and accurate. The President said, ``That 
is absolutely true.''
  Now, on August 6, Monica Lewinsky, incidentally, testified before the 
grand jury, and she didn't play these games with the grand jury, like 
``it all depends what `is' means,'' or ``I wasn't paying attention.'' 
She was asked a straightforward question:

       Paragraph 8 of the affidavit says, ``I have never had a 
     sexual relationship with the President.'' Is that true?

  Answer by Monica Lewinsky:

       No.

  Mr. Chief Justice, I see my time has expired. I will be happy to 
invite additional questions relating to additional specific examples.
  The CHIEF JUSTICE. This is to the President's counsel from Senator 
Schumer and Senator Kerrey of Nebraska:

       Isn't it true that the alleged perjurious statements have 
     changed in number and substance since the OIC first delivered 
     its referral to the House, and that the referral, Mr. 
     Schippers' presentation before the House, the majority 
     report, the trial brief, and the managers' statements before 
     this body contain different allegations of what constitutes 
     the alleged perjurious statements?

  Mr. Counsel CRAIG. Thank you, Mr. Chief Justice. The answer to that 
question is, yes. They were changing right up until the time we met, 
the very first day of this trial when Mr. Manager Rogan made his 
presentation. What he said when he described perjurious statements 
alleged against the President was different from what was appearing in 
the trial brief before. And that was the end of a long period of time 
where every time we heard what the allegations were, at least when it 
came to the issue of perjury, they changed.
  There were allegations added; there were allegations subtracted. Two 
of the allegations that Mr. Schippers presented when he made his 
statement to the Judiciary Committee were withdrawn. So it was a 
process where we never had a chance to sit down, as you should in a 
very serious and fair and evenhanded exercise, and focus on what 
precisely it was that the President said in the grand jury that was 
perjurious.
  Now, as to the specifics of the allegation that we have been 
discussing just now, when I first opened this discussion, I said it is 
very important to look at the record. Do not allow anyone to 
misrepresent the record because you are setting up the President's 
statement and saying that is perjurious, when the President's statement 
may well be something very different in the record.
  Now, when Mr. Rogan first made his argument on this issue, he 
misrepresented the record as to what the President said in this case. I 
tried to correct him about what the President actually said. He never 
claimed, at the moment these questions were being asked back and forth, 
that he thought about the current tense. Even as I was speaking, Mr. 
Rogan was out talking to the television cameras, saying precisely the 
same thing. Now we have this same misrepresentation the third time.
  I will say it one more time. He answered the question. He wasn't 
focusing on it. He answered that four times the same way. It was not a 
bifurcated answer; it was one answer. He was not paying attention at 
that particular moment. It moved very quickly; the moment was passed 
and they were into the judge talking and debating with the lawyers. 
That was his answer. There was no other answer.
  Then, at the grand jury some 7 months later, he was read that 
statement by the special prosecutor. The question was, ``And this 
statement was false, isn't that true?'' The answer the President gave 
was that, well, in fact, it depends on the meaning of the word ``is.''
  He didn't claim that that was what he was thinking at the time in the 
Jones deposition. He said very clearly, ``I never even focused on that 
issue until I read it in this transcript in preparation for this 
testimony.'' It is on page 512, Mr. Rogan. ``I never focused on that 
issue until I read it in this transcript in preparation for this 
testimony.'' There was not a bifurcated answer. He answered directly. 
He wasn't focusing on it.
  That is a problem we have had throughout this case when it comes to 
perjury the allegation. It was a problem we had with the earlier one. 
If you don't have the specific statement quoted, it is impossible to 
defend it. It is unfair.
  Thank you, very much.
  The CHIEF JUSTICE. This question from Senator Lott to the House 
managers:

       Do you wish to respond to the answers just given by the 
     President's counsel?

  Mr. Counsel ROGAN. Mr. Chief Justice, I am not sure if I wish to 
respond or I feel the need to respond. But in either event I will take 
advantage of the

[[Page S889]]

opportunity. I thank the Senator for posing the question.
  Try as they might, the facts are clear. The President, in his August 
deposition, attempted to justify away, attempted to explain away his 
perjurious conduct on January 17 when he was deposed. And I am not 
going to stand and quibble with Mr. Craig over this beyond what was 
already noted.
  What I prefer to respond to is the bigger question that the White 
House attorneys have raised on a number of occasions--the idea that the 
President has been treated unfairly because he hasn't had sufficient 
notice as to what the allegations are against him.
  Contemplate that for just one moment. Because, were that to be true, 
the President of the United States would have to be not a human. He 
would be an ostrich with his neck so far down in the sand--that which 
every schoolchild now in America knows, that which every person in 
America with a television or a radio or Internet access knows, and is 
obvious to everybody which they claim is not obvious to the President.
  When the President of the United States testified at the deposition 
and before the grand jury--that brought us into late August of 1998, 
about a month after that--the Office of Independent Counsel filed a 
report. The binder was about 445 pages. The written document was a 
little more than 200 pages. But within the four corners of that report 
are all of the allegations, are all of the facts, and all of the 
circumstances that were forwarded to the House of Representatives for 
review. The House Judiciary Committee, specifically at the request of 
the White House and at the request of our Democrat caucus, did not go 
beyond the four corners of Judge Starr's report. Not only did the 
President have the benefit of Judge Starr's report, he also has the 
benefit of the written report from the House Judiciary Committee--same 
facts, same circumstances, nothing changed.
  And, by the time we came here to the Senate to try this case, the 
President had the benefit of the resolution passed by this body that 
said at the initial presentations ``we will not go beyond the record 
already established''--the record that was established in the Office of 
Independent Counsel report, in the committee's report, and in our 
hearings. And for a party to be aggrieved, as the White House counsel 
suggests, to have been given no notice, it is amazing to me how within 
minutes of Judge Starr's report being filed they had already filed a 
response. And I believe there were two supplemental responses within 48 
or 72 hours. They have always beaten us to the punch on the response. 
They have an army of lawyers here able to stand up on a moment's notice 
and respond. And I just do not understand how they can make the case 
fairly that this is all now a product of a surprise; that they have not 
been given a proper opportunity to review the facts. They have seen 
these facts since Judge Starr submitted his report to Congress some 5 
months ago. The facts haven't changed. The circumstances haven't 
changed. The quotations haven't changed. The transcripts haven't 
changed. Nothing has changed except their attempt to wiggle out from 
under the truth.
  The CHIEF JUSTICE. This question is from Senators Boxer, Schumer and 
Kohl to the President's counsel:

       To the best of your knowledge, has the United States 
     Department of Justice ever brought a perjury prosecution 
     where the alleged perjury was inferred from the direction in 
     which the defendant was looking?

  Mr. Counsel RUFF. Mr. Chief Justice, the answer is, not to my 
knowledge. I will not go farther than that because somebody in the army 
of people on the other side might dodge one up, but I doubt it very 
much.
  I think, if I may impose on the kindness of the authors of that last 
question, I will take just a moment to comment briefly on Mr. Manager 
Rogan's rejoinder to our response to whatever-- particularly because 
Mr. Manager Rogan has been a judge, prosecutor, and others have as 
well, it does seem mildly odd to me that the answer to the question 
your charges aren't known or are vague is, look at that pile. You will 
find them right in there. You fellows, you guys did a good job 
responding to what you could. So you must be perfectly well prepared to 
defend against whatever charges we bring. I don't think there is a 
judge anywhere in the United States, from the highest court or the 
lowest court, who would accept either explanation from a prosecutor.

  The CHIEF JUSTICE. This question is directed to the House managers by 
Senators Hatch and Burns:

       The President's lawyers cite in their brief Professor 
     Michael Gerhardt for the proposition that for an act to be 
     impeachable there must be a nexus between the misconduct of 
     an impeachable official and the latter's official duties. But 
     isn't it true that Professor Gerhardt also stated that 
     impeachment may lie for conduct unrelated to official duties 
     if such conduct is outrageous and harms the reputation of the 
     office?

  And this citation is to the testimony of Mr. Gerhardt.

       Would the House managers care to respond to this?

  Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, I do 
appreciate the opportunity to respond to this point. I think this is a 
very important point.
  I have a great deal of respect for Professor Gerhardt. He has said a 
number of different things on this subject. But the point in the 
question is directly on point.
  I would also like to quote something else that Professor Gerhardt has 
said that I made reference to without specifically naming him as the 
source in this statement which I gave to the Senate on Saturday.
  He said in a Law Review article, which he wrote a few years back:

       There are certain statutory crimes that if committed by 
     public officials reflect such lapses of judgments with such 
     disregard for the welfare of the state, and such lack of 
     respect for the law and the office held that the occupants 
     may be impeached and removed for lacking the minimal level of 
     integrity and judgment sufficient to discharge the 
     responsibilities of office.

  I believe that what Professor Gerhardt makes reference to there is 
exactly what we have before the Senate in this case. What we have 
before the Senate in this case is a case where the President of the 
United States has engaged in a course of conduct involving violations 
of the criminal law. By doing so, he has evidenced a lack of respect 
for the law, that demonstrates a lack of the minimal level of integrity 
that we are entitled to expect of the Chief Executive of the United 
States, of the person who, under our system, is given the preeminent 
responsibility to take care that the laws will be faithfully executed.
  The CHIEF JUSTICE. This question is from Senator Dodd to the counsel 
for the President:

       Given the election of a President of the United States is 
     the most important and solemn political act in which we as 
     citizens engage, how much weight should the Senate give to 
     the fact that conviction and removal by the Senate of the 
     President would undo that decision?

  Mr. Counsel RUFF. That question, of course, goes right to the heart 
of what the framers were thinking, and the standards that I suggest 
every sensible analyst of this problem has arrived at, whether they 
might be called supporters or opponents of the President. There is one 
critical issue that everyone has to address, which is that removal and 
undoing the will of the people.
  Mr. Manager Graham acknowledged that that's what we were all about 
here, whether we should undo an election. But if you go back to the 
very basic debates of the framers in 1787, and you recall both Mr. 
Manager Canady and I talked about the moment in time in which it was 
suggested by Mr. Mason that perhaps the scope of the standard for 
impeachment could be broadened, and the response made then and clearly 
the principle underlying everything that the framers spoke about in 
1787 was: We cure almost all our problems with an elected official 
through the electoral process.
  And even if you look at what President Ford had to say 29 years ago 
on the subject, which I also cited to you as he spoke about the 
difference between judges and Presidents, he said for the Senate to 
remove--the House to impeach and the Senate to remove the President or 
Vice President as opposed to a judge in midterm would require proof of 
the most serious offenses, and we know that those most serious 
offenses, the only ones the framers contemplated as a basis for 
overturning the will of the people, were those that, as the minority 
said in 1974 in its report on the subject, were a danger to the state--
a danger to the state. That is all that can justify overturning the 
voice of the people.

[[Page S890]]

  The CHIEF JUSTICE. This question is from Senator Lott. It is 
addressed to the House managers:

       Didn't the framers of the Constitution understand in 1787 
     that the conviction and removal from office of a President 
     would, under the system they devised, reverse the result of a 
     national election by elevating, not a President's Vice 
     Presidential running mate, as we would do today, but the 
     person who had received the second highest number of 
     electoral votes?

  Mr. Manager HYDE. Mr. Chief Justice, the statement has been made with 
some fervor that if the President were removed upon a finding of 
conviction of the articles or an article of impeachment, it would 
reverse a national election. I just respectfully say that is not true. 
The election is provided for in the Constitution and so is impeachment. 
They are processes of equal constitutional validity. And should the 
Senate remove the President, Bob Dole will not become President, Jack 
Kemp will not become Vice President, but Mr. Gore will move up to be 
President, and the same party, the same programs, I dare say, will 
continue. It will not reverse an election; it will fulfill a 
constitutional process that our Founding Fathers were wise enough to 
provide for.
  The CHIEF JUSTICE. Senator Edwards asks the House managers:

       Are there any statements contained in the exhibits used 
     during the managers' presentations or omissions from those 
     exhibits that you believe, in the interest of fairness or 
     justice, should be corrected at this time? If so, please do 
     so now.

  Mr. Manager BUYER. Mr. Chief Justice, with regard to our own 
exhibits?
  The CHIEF JUSTICE. Perhaps I should ask Senator Edwards.
  Mr. EDWARDS. Yes, Mr. Chief Justice, with regard to their exhibits.
  Mr. Manager HUTCHINSON. Mr. Chief Justice, I would be happy to take 
advantage of the 5 minutes, but I have talked to the other managers and 
we are not aware of any corrections that need to be made on any of our 
exhibits we have offered to the Senate.
  Mr. KERRY addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the Senator from 
Massachusetts.
  Mr. KERRY. I would simply ask whether or not that answer was in fact 
fully responsive to the question. I believe the question also asked 
whether or not there were any omissions.
  The CHIEF JUSTICE. The Parliamentarian advises me this is a 
nondebatable period and the inquiry is out of order, and I so rule.
  This is from Senator Roberts. It is directed to the House managers.

       Given the fact that the White House characterizes the 
     assistance that Monica Lewinsky received as ``routine,'' does 
     the record reflect that any other White House interns other 
     than Monica Lewinsky received the same level of job 
     assistance from Vernon Jordan, John Podesta, Betty Currie, 
     and then-Ambassador Richardson?

  Mr. Manager McCOLLUM. Mr. Chief Justice, if I might, as far as we 
know as House managers, in the record the only comments about assisting 
anybody else other than Monica Lewinsky, of any nature, were made in 
testimony by Vernon Jordan. He did assist other people. But I don't 
believe there is anything, to the best of our knowledge and 
recollection--of course, we have a lot of paperwork here--that he 
referred to assisting another intern or anyone in a like position. And 
certainly there was no indication that the kind of intensity of that 
assistance occurred in the kind of manner in which the proceedings did 
with developing her job opportunities, that is, somebody in this direct 
involvement with the President, or certainly nobody with a close 
relationship and interest on the part of the President. There certainly 
was nothing in the record to show that, and that is, of course, central 
to this entire case as far as the job search part of this obstruction 
of justice is concerned.
  Thank you.
  Mr. ROBERTS addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the Senator from Kansas.
  Mr. ROBERTS. I had directed that question, sir, to the White House 
counsel. It was my intent to direct it to White House counsel. I do not 
know what the proper procedure would be at this time.
  The CHIEF JUSTICE. Is there any objection to the White House counsel 
answering the question at this time?
  Without objection, the White House counsel may answer.
  Mr. Counsel RUFF. Thank you, Mr. Chief Justice. This may be a moment 
worth noting in the proceedings because in essence I think we are in 
agreement with Mr. Manager McCollum.
  I would perhaps only do this, and that is, to note with some greater 
emphasis Mr. Jordan's testimony, which we will be glad to highlight if 
we have another opportunity here, that indeed he has regularly and 
frequently assisted young people, and not-so-young people, in finding 
jobs.
  Again, I couldn't tell you whether any of them had been an intern at 
any time. I would only note that, of course, Ms. Lewinsky was not an 
intern at the time Mr. Jordan was helping her, but rather was an 
employee of the Pentagon.
  But beyond that, and perhaps with somewhat greater emphasis on Mr. 
Jordan's emphasis on behalf of young people in the city, I am in 
essential agreement with Manager McCollum.
  The CHIEF JUSTICE. This is a question from Senators Dodd and Levin to 
the House managers:

       On page 11 of House committee report accompanying H. Res. 
     611, the report states that Judge Susan Webber Wright issued 
     her order ``on the morning of December 11th.'' Will the 
     managers now acknowledge that the report was factually 
     incorrect? Yes or no?

  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. If I look back 
at the facts of this--of course, I have explained earlier today that 
the action on the 11th was initiated or triggered by the witness list 
that came in on December 5, that the President knew about it at the 
latest on December 6.
  On the 11th, Judge Wright entered an order in that case which allowed 
the Jones lawyers an opportunity to ask questions about the prior 
relationships with other Federal employees or State employees.
  Mr. DODD addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the Senator from Connecticut.
  Mr. DODD. Mr. Chief Justice, as one of the authors of the question, a 
yes or no answer was requested and I object to the answer.
  The CHIEF JUSTICE. The Chair has not tried to police the 
responsiveness of the answers to the questions so I am going to 
overrule that objection.
  Mr. Manager HUTCHINSON. I am not trying to be evasive at all to the 
Senator, but I did want to lay the groundwork for this and also to get 
my thoughts so that I would be as accurate as possible.
  The order that Judge Wright entered was on December 11. I do not know 
the precise time. I believe it was in the afternoon that it was 
entered, and it was followed by the telephone call with the 
participants. So I believe that it was entered in the afternoon of the 
11th, and not in the morning of the 11th.
  And, of course, that was not in my presentation. My presentation 
referred to the order being entered on December 11, and that the action 
on the 11th, of course, was triggered by the witness list on December 
5.
  I think that completely answers that question. If there is some 
other--I would be happy to respond to anything more specific on that 
issue.
  The CHIEF JUSTICE. This question is directed to the House managers 
from Senators Domenici, Frist, McCain and Warner.

       What is the historical significance and legal import of 
     taking an oath for performance in public office? What is the 
     historical significance and legal import of taking an oath to 
     tell the truth in a legal proceeding? Please discuss whether 
     oath-taking in such circumstances is a public matter.
  Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, the 
taking of an oath is a formalization, a solemnization of truth. You 
call upon God to witness to the truth of what you are saying. In the 
long march of civilization, the oath has taken the place of trial by 
fire, trial by combat, trial by ordeal. It says, in the most sober way: 
You can trust me. You can believe in me. It is verbal honesty. Our 
legal system depends on it and our justice system depends on it. The 
oath underscores our humanity. The oath is an aspect of our sacred 
honor.
  The CHIEF JUSTICE. This is from Senator Kerry of Massachusetts to the 
counsel for the President:

       Is it fair to say that the articles and manager 
     presentations stress the Jones perjury allegations rejected 
     by the House, because they cannot credibly, on the law, 
     satisfy the

[[Page S891]]

     elements and argue perjury in the grand jury investigation?

  Mr. Manager RUFF. Mr. Chief Justice, I am a little bit troubled at 
answering that question, not because I don't feel strongly about what 
the answer is but I do not want to suggest in any way that the 
motivation of the managers is less than professional and appropriate. 
But I do think that, indeed, they know, as they think through the proof 
that they have or that they even might ever contemplate, that the 
President of the United States, when he began his grand jury testimony 
by making the most painful admission a human being could ever make, and 
thereafter did his best--albeit in the face of tough and probing and 
repetitive questioning for 4 hours--did his best to tell the truth.
  That they had a very difficult, indeed virtually impossible, task to 
persuade any dispassionate trier of fact and law that he had 
intentionally given false testimony, and you can see that evidenced, I 
think most clearly, if you look at some of the first allegations made 
as to what constitutes perjury--things like the use of the words ``on 
certain occasions'' or ``occasionally'' to describe a battle over 
whether 11 or 20 or 17 fit within that description. It does seem fair 
to say that they would not be fighting those battles in this Chamber if 
they had any real confidence in their cause on article I, and thus they 
do seek, for whatever tactical or other purpose, to try to bring in 
those things which so many of their colleagues rejected out of hand in 
the House of Representatives.
  The CHIEF JUSTICE. This question is directed to the House managers 
from Senators Hatch, Thompson and DeWine:

       In her presentation to the Senate, Ms. Mills emphasized 
     that Ms. Lewinsky testified on ten different times about the 
     subject of gifts. Did she ever testify that the President 
     told her that she must turn over the gifts because that is 
     what the law requires?

  Mr. Manager McCOLLUM. Mr. Chief Justice, in response to that question 
the answer is no, she did not. As a matter of fact, that was and is the 
central point on the part of the gift question. At no time, she says, 
did the President instruct her to turn those gifts over. I think that 
is a telling point. In fact, it is a telling point throughout the 
entire process of the scheme and all the things that happened and why 
you have to follow, in my judgment, Senators, the issue of this whole 
process through the scheme that was devised at the beginning, all the 
way to the end.
  The President was going to ultimately lie to conceal from that case, 
that court in the Jones case, the truth of his relationship with Monica 
Lewinsky and, therefore, he had to set it up for the affidavit, the 
gifts, et cetera. At no point in time, she says in her testimony, did 
he ever ask her to come clean. Until the time the affidavit was 
discussed, on the night of December 17, he never suggested she tell the 
truth there. If you remember we put that up here several times to you. 
Even though he may not have directly told her to lie, he certainly gave 
her every indication, she said, from the standpoint of the background 
that they had had before and what he said that night about the cover 
stories.
  And with regard to the gifts, the same thing is true. She gave him an 
opportunity on the day of December 28. Whether there are 10 statements 
or however many there might be--and they say there are 10; I trust the 
judgment of the White House counsel--there were 10 different 
statements, the most significant of which, of course, is the grand jury 
testimony she gave on the subject of what happened that day when she 
discussed the gifts with the President because that is when her 
recollection had been best refreshed. She had been over it a lot of 
times. She had had much preparation for that, and I submit to you that 
barring bringing her in, which we of course would suggest you do, and 
let us ask her to confirm all of this again, you must assume the 
logical thing to do is to assume the grand jury testimony, the most 
perfected testimony you have, is the most accurate and most reliable, 
and on that occasion particularly she emphasizes the fact that with 
regard to the gifts there certainly was no request by the President 
that she reveal those gifts.
  Now, of course he says he did. He says he did later. But that is 
absolutely contradicted by her testimony.
  The CHIEF JUSTICE. Senator Reid of Nevada sends this question for 
White House counsel:

       Would you please comment on any of the legal or factual 
     assertions made by the managers in their response to the 
     previous question?

  Ms. Counsel MILLS. There is, obviously, a conflict in the testimony 
between the President, who said he directed Ms. Lewinsky to turn over 
whatever she had, and Ms. Lewinsky's statements. I would just like to 
read to you, given the House managers' reference that we must credit 
her grand jury testimony, the version of her grand jury testimony, 
which you all will no doubt remember it as one of the ones I read to 
you that was never presented by the House managers, and that is on 
August 20, 1998, after the President had testified:

       It was December 28th. I was there to get my Christmas gifts 
     from him, and we spent about 5 minutes or so, not very long, 
     talking about the case. And I said, ``Well, do you think''--
     and at one point I said, ``Well, do you think I should?'' And 
     I don't think I said, ``Get rid of, but do you think I should 
     put away, give to Betty or someone the gifts''--and he--I 
     don't remember his response. I think it was something like 
     ``I don't know'' or hmm or there was really no response.

  On that same day when she was asked that same question, if it is her 
grand jury testimony that is to be addressed, she also said:

       A Juror. Now, did you bring up Betty's name or did the 
     President bring up Betty's name?
       The Witness. I think I brought it up. The President 
     wouldn't have brought up Betty's name because he didn't--he 
     didn't really discuss it.

  All of those are in her grand jury testimony. So her grand jury 
testimony is the testimony that states he might not have given any 
response. So, to the extent the House managers' theory is that ``Let me 
think about it'' leads to obstruction of justice, her grand jury 
testimony does not state that.
  The CHIEF JUSTICE. Senators Specter, Helms, Abraham, Ashcroft, and 
Stevens direct this question to the President's counsel:

       President Clinton testified before the grand jury that he 
     was merely trying to ``refresh'' his memory when he made 
     these statements to Betty Currie. How can someone ``refresh'' 
     their recollection by making statements they know are false?

  Ms. Counsel MILLS. I think one of the things I tried to address in 
addressing what the President's testimony was with respect to his 
conversation with Ms. Currie was obviously he was understandably 
concerned about the media attention that he knew was impending. And in 
particular, as he walked through the questions, he was thinking about 
his own thoughts and seeking, as I think I talked about, concurrence or 
input or some type of reaction from Ms. Currie.
  I think in making those statements, he was asking questions to see 
what her understanding was based on some of the questions that had been 
posed to him by the Jones lawyers, because some of them were so off 
base. And so he was asking from Ms. Currie essentially what her 
perception was, what her thoughts were.
  I think as you walk through each one of those questions, he was 
expressing what his own thoughts and feelings were with regard to this 
and was seeking some concurrence or affirmation from her. I think he 
was agitated. I think he was concerned. He knew what was going to 
happen, and I think that is why he posed the question in the way that 
he did.

  The CHIEF JUSTICE. A question from Senator Bayh to counsel for the 
President:

       Can you comment on the importance of ``proportionality'' to 
     the rule of law?

  Mr. Counsel RUFF. How much time do we have? Thank you, Senator.
  I think proportionality, in all its many guises, is an issue that has 
given us some pause, going well back into the investigative phase of 
this matter, and I think many who have watched and who have made their 
lives and careers as professional prosecutors, indeed many who have 
been criminal defense lawyers or just plain sensible citizens watching, 
have asked whether the resources and the energy and the time devoted to 
this matter and the manner in which it has been treated at every stage 
before it ever got to the House of Representatives does, in fact, 
reflect an appropriate assessment of the conduct being investigated and 
the seriousness

[[Page S892]]

of the conduct, which is not ever to suggest that we condone perjury or 
obstruction of justice.
  We all recognize, if those offenses have been committed, they are 
worth pursuing. But one only need look at the testimony and the 
professional prosecutors who testified before the Judiciary Committee 
to get a sense of what the world of professional prosecutors would do 
faced with these kinds of allegations in this kind of setting, and that 
really is the key: How many prosecutors would ever reach into the 
middle of an ongoing civil litigation and bring these kinds of charges?
  The proportionality, obviously, has other implications and certainly 
goes right to the heart of the role played by this body. That is, what 
is the proportional response to whatever you think of the President as 
a man, whatever you think of his conduct. Even if you should conclude--
although we do not believe you should--that he violated the law in some 
respect, what is the constitutionally proportional response to your 
judgment. And there you go right back to the essence of what the 
framers were talking about, which is responding with the ultimate 
sanction only when the ultimate problem is posed to you.
  I suggest, as I have on too many occasions, I fear, that if that is 
the proportionality question you are asking--and all must at some point 
ask that question--the answer has to be clear, that no one ever thought 
in 1787 and, I suggest to you, in the intervening 212 years that it 
would be a proportional response to the conduct alleged here to remove 
a President.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.


                           Order of Procedure

  Mr. LOTT. Mr. Chief Justice, I believe we have reached a point where 
we can take a break. I think we have had responses to approximately 50 
questions today. Now we will have a chance to assess, on all sides, 
what additional questions might be needed to be asked tomorrow. I 
remind my colleagues that we are scheduled to resume at 10 a.m. on 
Saturday.


    notice of intent to suspend the rules of the senate by senator 
 hutchison, senator specter, senator lieberman, senator hagel, senator 
                       collins, and senator snowe

       In accordance with Rule V of the Standing Rules of the 
     Senate, I (for myself and for Mr. Specter, Mr. Lieberman, Mr. 
     Hagel, Ms. Collins, and Ms. Snowe) hereby give notice in 
     writing that it is my intention to move to suspend the 
     following portions of the Rules of Procedure and Practice in 
     the Senate When Sitting on Impeachment Trials for the final 
     deliberation on the articles of impeachment of the trial of 
     President William Jefferson Clinton:
       (1) The following portion of Rule XX: ``, unless the Senate 
     shall direct the doors to be closed while deliberating upon 
     its decisions. A motion to close the doors may be acted upon 
     without objection, or, if objection is heard, the motion 
     shall be voted on without debate by the yeas and nays, which 
     shall be entered on the Record''; and
       (2) In Rule XXIV, the phrases ``without debate'', ``except 
     when the doors shall be closed for deliberation, and in that 
     case'' and ``, to be had without debate''.


                              Adjournment

  Mr. LOTT. If there is nothing further, I move we adjourn, Mr. Chief 
Justice.
  The motion was agreed to; and at 5:49 p.m., the Senate, sitting as a 
Court of Impeachment, adjourned until Saturday, January 23, 1999, at 10 
a.m.

                          ____________________