[Congressional Record Volume 145, Number 12 (Saturday, January 23, 1999)]
[Senate]
[Pages S933-S956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                                 prayer

  The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer:
  Almighty God, You have taught us to seek and maintain unity. You've 
also taught us that this unity is so precious that we should be willing 
to sacrifice anything in order to maintain it--except the truth. Help 
us to affirm the great undeniable truths that twine the bond of 
oneness: We are one Nation under Your sovereignty; our patriotism binds 
us together inseparably; our commitment to the Constitution is 
unswerving. In these bonds that cannot be broken, this Senate has been 
able to deal with the arguments, issues, and opinions of this 
impeachment trial. Continue to inspire the Senators with civility as 
they work through answers to the questions raised today.
  Refresh and rejuvenate those who may be weary or burdened. Dear God, 
preserve the unity of this Senate for its future leadership of our 
beloved Nation. In Your holy Name. Amen.
  The CHIEF JUSTICE. The Deputy Sergeant at Arms will make the 
proclamation.
  The Deputy Sergeant at Arms, Loretta Symms, made proclamation as 
follows:

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


                              The Journal

  The CHIEF JUSTICE. If there is no objection, the Journal of 
proceedings of the trial are approved to date.
  Pursuant to the provisions of Senate Resolution 16, there are 11 
hours 54 minutes remaining during which Senators may submit questions 
in writing directed to either the managers, on the part of the House of 
Representatives, or the counsel for the President.
  The majority leader is recognized.
  Mr. LOTT. Thank you, Mr. Chief Justice.
  And thank you, Chaplain, for your opening prayer. I know we all 
listened and appreciated the admonitions that were given in that 
prayer.


                           Order Of Procedure

  I want to say, again, I appreciate the participation of all the 
Senators yesterday. Fifty questions were asked, I think a lot of good 
questions, and obviously good responses. We have a considerable amount 
of time left for questions. But, again, it is our intent to go today as 
long as the Senators feel that they have a need for further questions. 
It is up to 16 hours; it doesn't require 16 hours. So I think we should 
go forward and try to ask the needed questions, and then get a sense of 
where we are as we go through the day.
  But at any rate, it would be our intent not to go later than 4 p.m. 
We hope to take a 1-hour lunch break sometime around 12 or 12:30, but 
it will depend on how the questions are going. We will also take a 
break here in an hour, hour and a half, something like that.
  Following today's session, the Senate will reconvene on Monday at 1 
p.m. and resume consideration of the articles of impeachment. All 
Members will be notified of the details of Monday's schedule, and 
beyond that, once we have had an opportunity for a consultation between 
Senator Daschle and myself and we get a feel for exactly what Senate 
Resolution 16 provides in terms of activities on Monday and Tuesday. In 
a continuing effort to make this as bipartisan and as fair as possible, 
you will note yesterday while we alternated back and forth, some of the 
questions were directed from this side to the President's counsel and 
the reverse. I am sure that will happen again some today. We began the 
first question yesterday and you concluded; so today we would reverse 
that. Senator Daschle will ask the first question and then we will go 
through the process until we complete those questions, with us ending 
with the last question sometime today.

  With that, Mr. Chief Justice, I yield the floor.
  The CHIEF JUSTICE. This question is directed to the House managers 
from Senator Reid of Nevada.

       Would you please tell us whether you provided notice to 
     counsel for the President, or to any official of the United 
     States Senate, of the managers' discussions with the Office

[[Page S934]]

     of Independent Counsel regarding an informal interview of Ms. 
     Lewinsky, and the intention of the Office of Independent 
     Counsel to file a motion in court to compel Ms. Lewinsky to 
     meet with the managers? If you provided no such notice to 
     counsel for the President or the Senate, please tell us why 
     not.

  Mr. Manager BRYANT. Mr. Chief Justice and Senators, distinguished 
colleagues, no, the answer to your question. I am not aware of any such 
notice that was provided as described in the question.
  I would like to make some clarification on this in terms of the 
witness, Monica Lewinsky--potential witness. As we have been in an 
evolving discussion over the last few weeks in terms of if we are 
allowed to call witnesses by the Senate, who those witnesses might be, 
what our list might look like, obviously, the name of Monica Lewinsky 
comes up as a potentially very important witness to these proceedings.
  As many of us in this Chamber have had experience in the law, we very 
much would like to talk to some of these witnesses. The core group that 
we have considered, however, are, in essence, in the White House 
control; they are either employed by the White House or close friends 
and associates of the White House. I am sure the White House, with the 
attorneys, would be very willing to cooperate with us in making those 
people available.
  However, Ms. Lewinsky presents a very unique situation in that she is 
geographically some other place. I am not sure where she is--Los 
Angeles, New York, maybe Washington. But she has attorneys we have to 
deal with. It would be very critical, as any attorney in this body 
knows, that before you actually talk to a witness, and a witness of 
that importance to this proceeding, that before you produce her for 
that testimony, that you talk to her. It was intended to be a 
conversation to discuss it with her.
  I have personally not seen the immunity agreement that she has, but 
we understand there is a cooperation proceeding and that that agreement 
is between her, her attorneys, and the independent counsel, the OIC--
not Congress, not the managers, not the Senate. So we have no duty, no 
legal standing, as I understand it, to go in and enforce that 
agreement, were she not to want to meet with us and cooperate pursuant 
to the terms of those agreements, to the agreement.
  We did contact the OIC to arrange that meeting, and once we 
understood that the attorneys did not want to cooperate and furnish 
their client to meet with us, we asked the OIC to pursue, further, the 
effort to have Ms. Lewinsky come in and meet with us on an informal 
basis as, again, anyone would do in preparation for calling a witness 
at a trial.

  Thank you.
  The CHIEF JUSTICE. This is a question from Senators Fitzgerald, 
Hatch, Mr. Smith of Oregon, and Senator Thurmond, directed to the House 
managers.

       How do you address the White House's argument that removal 
     is a disproportionate remedy for the alleged acts of perjury 
     and obstruction of justice and should there be any particular 
     concern about establishing a precedent that a President can 
     commit felonies while in office and remain President of the 
     United States?

  Mr. Manager BUYER. I think the proportionality question yesterday was 
very good in that there is a psychology to be used in judicial 
decisions. I think there are different factors that will influence that 
decisionmaking process and the ideals that you, as a sitting judge and 
juror, will use to strive to attain them. It is important, I think, 
also, to have reasonableness and just solutions if you are going to 
individualize the case, as some may hope to do.
  I think as a society, if you take a step backward, we are kind of 
caught in two diverse trends at the moment. You have one trend whereby 
judges like to seek individualized solutions to particularized cases; 
and the other trend is we will apply the law to individualized cases.
  So, let me give you two best examples of both of those. With regard 
to the best example of individualized solutions to a particular case 
would be our juvenile justice system. That is where the court would 
come in and use a variety of means because reformation is, in fact, the 
goal, and that is what we do in the juvenile court system.
  As a side note of that, I think in society, with regard to--it could 
be an act of a firing, it could be an administrative hearing for 
removal, it could even be a Governor who had an employee who had an 
illicit affair and it was a political appointee and that Governor 
decided, maybe he decided applying the proportionality that he remove 
his own political appointee for having an affair. So the 
individualization can occur out there.
  The other example I will comment on is the justice according to law, 
and that other trend out there caught in our society--a legislature is 
not only here in Washington but across in our State jurisdictions; you 
have legislatures that are beginning to take some of the decisionmaking 
processes away from judges and they are saying, specifically, in 
Federal sentencing guidelines, as an example, that if in fact a person 
is convicted of a particular crime or possession of cocaine, the 
legislature is now telling these judges exactly: This is, in fact, what 
your sentence will be.
  So, we are kind of caught, I want you to know, as you are sitting as 
judges and jurors, in this diverse trend that is occurring in our 
society. I know as you listen to lectures even from the Supreme Court 
Justices, they are well aware of these trends, and so you are sitting 
and you have to come in your own conscience on how best to make that 
particular decision. I will note, though, that we have stressed the 
latter. We have stressed that the rule of law and its importance to our 
society not only to serve the public and social interests, but you are 
the guardian. When, in fact, there are crimes against the State, who is 
there to serve the public interest? Especially if, in fact, it is the 
President, the Vice President, a judicial officer, or other civil 
officers. Here where you have the President of the United States who 
has been accused of perjury and obstruction of justice, which are 
crimes against the State, and as Blackstone said, ``are side by side 
with bribery,'' who is the guardian, then, of the public interest? So 
in the question of proportionality, it is you; it is you.
  So when Mr. Craig began by arguing that this trial is not about 
vindicating the rule of law, that only criminal courts are charged with 
that duty, I would respectfully submit that the President's counsel is 
confusing the punishment of a particular criminal case or controversy 
in a court with your duty as Congress to ensure that future officers 
entrusted with power granted by the people may not, while their offices 
eviscerate the proper administration of justice which is a cornerstone 
of our Republic.
  I now yield to Mr. Graham.
  Mr. Manager GRAHAM. I know I have a minute. Great minds can differ on 
this one: Can you have a high crime, and for the good of the nation 
removal is not appropriate? I was asked that yesterday, and I kind of 
wanted to make a case about why I think this is not true. This is a 
great question.
  The problem we have here is that you run into the judge cases. When 
you find that a judge perjured himself, you remove the judge. The 
President is different than the judge; I will certainly concede that. 
But we don't want, I think, in the use of proportionality, to create a 
standard that doesn't make any sense, that confuses people. The law 
loves repentance. Baptists love repentance. I am a Baptist. In my 
church, everybody gets saved about every other week. The idea that if 
you will come forward and admit you are wrong, you will get a different 
result, is loved in the law.
  Another thing to consider about proportionality is the impact on 
society. I think you should consider that. I think very much you should 
consider, even if this is a high crime, the impact on our society, if 
you decided to make the ultimate punishment. The death penalty of a 
political crime is removal from office. I started that train of thought 
3 months ago. Impeachment is equivalent to the political death penalty. 
Every felony doesn't allow you to have a death penalty. What I hope you 
will be able to do, as a wise body, is not leave this confusion 
behind--whether or not it is a crime.
  Ladies and gentlemen of the Senate, it can be a high crime, and you 
then have to decide the impact on society. But if you leave us confused 
about whether or not this is a crime, the impact on society is far 
greater than if you make the decision that it is a

[[Page S935]]

crime, but proportionally it is not what the death penalty would call 
for. It would not be a political death penalty case. Thank you very 
much.
  The CHIEF JUSTICE. This question is from Senator Leahy to the House 
managers:

       Did any of the managers consult with any Member of the 
     Senate before seeking aid from Kenneth Starr to speak with 
     Ms. Lewinsky? Did you discuss whether this violated the 
     Senate's 100-0 vote on trial procedure?

  Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice. The question is a 
valid question to ask. We did not consult with any Senators about this. 
We don't think that what we wanted to do, to talk to Ms. Lewinsky, has 
anything to do with the rule you passed. We don't want to violate those 
rules and we don't think we have.
  As anybody who knows, if you have a witness that you are going to 
produce, you have a right to prepare that witness. It is as plain and 
simple as that.
  I have practiced a lot of trial law before I came to Congress, and a 
number of you have. If you are going to have a deposition given, it is 
going to be your witness. You are going to go down and try to talk to 
that witness and prepare that witness. You have a right and obligation 
to do that. It has nothing to do with the formal proceeding of taking 
the deposition, which is covered by the rules that you have passed, as 
to how and when depositions will be taken, and it has nothing to do 
with the issue of her testimony actually here, where the opposing 
counsel would have a right to be present. It has everything to do with 
the right of anyone to prepare their witness, to get to know their 
witness, to shake hands, say hello, to put a face on that. It is normal 
practice to do this.
  We see in no way how that abrogates this rule, or in any way violates 
what you have set forth. As a matter of fact, we think we would have 
been incompetent and derelict as presenters of the witnesses, if we get 
a chance to present them, if we couldn't talk to her. We tried to do 
this some time ago. We suggested to her attorneys that it would be 
appropriate to quietly have this discussion, to meet her, as you 
normally would. I think they were apprehensive. They wanted a court 
order, I guess, to force this to occur, and that is why we eventually 
have gone to do that.
  Thank you.
  The CHIEF JUSTICE. This question is from Senators Lott and Thurmond 
to the House managers:

       Please give specific examples of conflicting testimony or 
     an incomplete record where the calling of witnesses would 
     prove beneficial to the Senate.

  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. Good morning, 
everyone. I want to echo what my colleagues have said--that we are 
trying to be prepared. We are trying to move through this process 
expeditiously. But we do believe that we need to call witnesses; and 
secondly, that we should be prepared, without any delay, to proceed 
forward in the event we are granted that opportunity.
  One of the reasons that the calling of witnesses is important is 
because there exists conflicts in the testimony. The White House 
counselors, the President of the United States, has denied each and 
every allegation under the two articles that have been submitted to 
this body. I focused on the obstruction of justice, and each of the 
seven elements of the obstruction of justice has been denied by the 
President. This puts it all in issue.
  For example, let's start with the issue of lying to the aides. The 
President said he was truthful with his aides, Mr. Podesta and Sidney 
Blumenthal. Yet, if you look at the testimony of John Podesta, where he 
says the President came in and denied having sex of any kind with Ms. 
Lewinsky and goes into the details of that, that is in direct conflict 
with the testimony of the President of the United States. The same 
thing is true of the testimony of Mr. Blumenthal versus the testimony 
of the President of the United States.
  Another conflict in the testimony is between the President and Ms. 
Lewinsky--in a number of different areas. First of all, in regard to 
the gifts, the President said, ``And I told her that if they asked for 
gifts, she had to give them.'' That is the President's testimony. Yet, 
Ms. Lewinsky says that in that conversation the President said, when 
asked about the gifts, ``Give them to Betty.'' Then he says, ``I don't 
know,'' or ``Let me think about it.'' Again, that is a direct conflict 
between Monica Lewinsky and the President.
  In regard to Monica Lewinsky, he was coaching her testimony or 
suggesting to her that ``Maybe you can sign an affidavit,'' or ``You 
can always say you were coming to see Betty, or that you were bringing 
me letters.'' This is the testimony of Monica Lewinsky. What does the 
President say regarding that? He said that he never talked to her about 
a cover story in a legal context. In other words, it is a denial of 
obstruction of witness tampering, in contrast to the testimony of 
Monica Lewinsky. Obviously, there is a conflict in the details of the 
relationship.
  There is a conflict between the testimony of Monica Lewinsky and 
Vernon Jordan in three different areas. Ms. Lewinsky said she shared 
with Mr. Jordan some details of the relationship. Mr. Jordan says that 
was not accurate. Ms. Lewinsky says in a particular meeting that Mr. 
Jordan--where they discussed about notes she had been keeping, Mr. 
Jordan said, ``Go home and make sure they're not there.'' But Mr. 
Jordan denies that.
  In another area, on the affidavit, Ms. Lewinsky says that she brought 
to Mr. Jordan the affidavit, and he assisted in making some 
corrections. Mr. Jordan does not recall that. So there are conflicts 
between Ms. Lewinsky and Mr. Jordan.
  There are conflicts between Ms. Currie and the President in regard to 
the coaching incident. Ms. Currie said the statements were made and 
taken in the sense that ``the President wished me to agree with the 
statement.'' The President says, ``I was trying to get as much 
information as quickly as I could.'' Obviously, Betty Currie testified 
before the grand jury before the President did, and there were never 
any follow-up questions. I would want to ask her: What did you say in 
response? Did you provide any information that the President was 
soliciting at that particular moment, according to the defense he has 
asserted? So there is conflict there.
  There is a conflict between the President and a witness that we would 
offer from the deposition. The President denies that he focused on what 
Attorney Bennett was stating in reference to the false affidavit. I 
believe that we can offer a witness--it could be in the form of an 
affidavit or deposition--that would testify that he was focusing, 
paying attention.
  So there is clear conflict in the record that can only be established 
through the presenting of additional questions or additional witnesses.
  The need for witnesses is so basic and fundamental to our truth-
seeking system of justice in this country that words fail me in making 
the case that we should call witnesses and then you should permit it in 
this proceeding.
  We are sympathetic totally with the timeframe and the time constraint 
of the U.S. Senate, and for that reason we will prepare our witness 
list, we will accommodate a quick session. The White House counselor 
said this is going to drag on for months. If it drags on for months, it 
is because they want it to drag on for months. We will do all that we 
can to end this in a timely fashion, and the American people and the 
U.S. Senate need to understand that.
  Why are the White House counselors so concerned about witnesses? Many 
of these witnesses are friendly to them. We are in a truth-seeking 
endeavor, and I would respectfully submit that the calling of witnesses 
would help resolve the conflicts that I have recited.
  The CHIEF JUSTICE. This question is from Senator Dodd to the counsel 
for the President:

       Do you believe that a fundamental question of fairness and 
     due process has been raised by the failure of the House 
     managers to notify you of the proposed Lewinsky interview or 
     by your exclusion from that interview? And do you wish also 
     to respond to Mr. Hutchinson's comments?

  Mr. Counsel RUFF. If I may, Mr. Chief Justice, I will use most of my 
time on the first part of that question and try to perhaps weave in a 
few comments on the second part.
  I am not going to seek here this morning to vindicate the interests 
of this body; that is for others. But I do think it useful to speak for 
a bit about the interests of the accused, the President of the United 
States.

[[Page S936]]

  It is odd as I think we listen to the managers explain what they were 
seeking to do to put that in the context of what we know was actually 
happening here. It was suggested that they wanted to just have a 
conversation like any lawyer getting ready for a trial would want to 
have a conversation with a witness before he or she put the witness 
into a deposition or on trial--that it was sort of normal for a trial 
lawyer to do this.
  I think one of the managers suggested they just wanted to say 
``hello'' to put a face on it. And they even suggested that counsel for 
Ms. Lewinsky wanted a court order to force their client to testify. 
Well, as we will all see once the record is made available to everyone, 
that last point is sheer nonsense.
  But I suggest that earlier suggestions that just a friendly little 
chat was all they were looking for is belied by the notion of what we 
have here is the managers using their ``institutional role'' to get the 
independent counsel to join with them and use the authority that he has 
under the immunity agreement to threaten Ms. Lewinsky with jail, to 
threaten her with violation of her immunity agreement, and opening up 
the prospect of prosecution if they do not meet in a friendly little 
conversation, just say hello, just like to meet you, gathering with the 
managers.
  Can you imagine what that little conversation is going to look like, 
held in the independent counsel's office, with the people there who 
have the capacity to put Ms. Lewinsky in jail, while there is this 
friendly little conversation, just say ``hello,'' normal everyday 
discussion between the trial lawyer and the witness he would like to 
get to know?

  From the perspective of my client for the moment, putting aside the 
rules which you all agreed on as to how we ought to proceed, can we 
really say that is just normal, just OK, to have one side using the 
might and majesty of the independent counsel's office, threatening a 
witness with violation of an immunity agreement if she doesn't agree to 
fly across the country and meet for this friendly little chat? I think 
not.
  I don't know whether I have a minute or two left. But on the issue of 
conflicts, this is, of course, something that has been the subject of 
much discourse over the last few days. Let me just take a couple of 
examples put to you by Manager Hutchinson.
  On the issue of the statements made by the President, Mr. Podesta, 
and Mr. Blumenthal, there is no conflict in the testimony here. The 
President indeed said that he was trying to keep his aides from 
becoming witnesses. He even said that he didn't even remember his 
conversation with Mr. Podesta but he took as true--this is what he said 
to the grand jury--he accepted as true that Mr. Blumenthal said this is 
what that conversation sounded like. Mr. Podesta said that is what the 
conversation was. There was no conflict. The President indeed adopted 
in the grand jury what those people would say. And of course he didn't 
put them into the grand jury in order to repeat some or to mislead the 
grand jury as to their knowledge of what they told him. They testified 
truthfully in the grand jury when they recited their conversations with 
the President.
  But I want to move just a second to something you have never heard 
before in the entire days that we have been sitting here. We heard 
little hints about how Vernon Jordan might be a liar because of what he 
said about December 11. All of a sudden just 5 minutes ago, this body 
heard for the first time he not only may be a liar about the job 
search, he may be a liar about destroying evidence. Words fail me.
  The CHIEF JUSTICE. This is a question from Senator Abraham to the 
President's counsel:

       Is it your position that Ms. Lewinsky was lying in her 
     grand jury testimony, her grand jury deposition, and her FBI 
     interviews when she said that the President engaged in 
     conduct with her that constituted ``sexual relations'' even 
     under his narrow interpretation of the term in the Jones 
     deposition? Is it your position that she was also lying when 
     she gave essentially the same account contemporaneously with 
     the occurrence of the events to her friends and counselors?

  Mr. Counsel CRAIG. Senator, our position is not that she is lying. 
Our position is that there are two different versions of what happened, 
and there is a discrepancy.
  In my presentation to the Senate, I acknowledged that there was a 
disparity between what the President had recounted and what Ms. 
Lewinsky said happened when it came to recalling and reporting these 
specific rather graphic and intimate details concerning their 
activities. I pointed out that, with respect to other essential 
elements of the relationship, there was no disagreement that they 
acknowledge that there was a relationship, that they tried to conceal 
it. But I also suggested--and I suggest to you today--that not every 
disagreement, not every discrepancy, is the foodstuff or the subject of 
a perjury charge.
  I also made the observation that perhaps this kind of conflict of 
testimony as to who touched who, when, where, and why, was not the kind 
of conflict that this institution would want to resolve through 
testimony on the floor. If you have any doubts about that point, I 
would suggest you read Ms. Lewinsky's August 20 testimony before the 
grand jury which is very complete and entirely and vigorously dedicated 
to eliciting every single gritty detail of what went on between them. I 
said also that I thought that this disagreement, this disparity, was of 
questionable materiality. Let me explain why.
  On January 29, Judge Wright ruled that Ms. Lewinsky's testimony about 
her relationship with President Clinton was unnecessary and maybe even 
inadmissible; that she had had no information relating to the core 
issues of the case. She made that ruling after all the allegations 
about that relationship had been made public. And the judge knew what 
had been reported in the newspapers and what was generally understood 
about it at that point. She had been there when the President testified 
about this. And she concluded that Ms. Lewinsky's testimony was not 
required, at least for the Paula Jones case. In truth, Ms. Lewinsky was 
an ancillary or peripheral witness in the Paula Jones case. She had 
absolutely no firsthand knowledge about what happened in the Excelsior 
Hotel when Ms. Jones claimed that then-Governor Clinton made an 
unwelcome sexual overture to her. Ms. Lewinsky had nothing to add or 
subtract, no ability to testify about that issue.
  So on the issue of the materiality to the Jones case as to the truth 
of what actually happened between them, it is clear it is of 
questionable, if no, materiality whatsoever. She was a peripheral 
witness on issues not having to do with the core issues of the case, 
and the case had no legal merit.

  Please recall that the judge concluded that the case had no legal or 
evidentiary merit. Please also remember that the Jones lawyers, when 
they were asking these questions of President Clinton, presumably knew 
the answers to these questions about the relationship because they had 
been fully briefed the night before.
  Now, as to the question of the materiality of this testimony and this 
issue of who touched whom, when, where and why to the grand jury, let 
me just say this: The House managers claim that one or the other must 
be lying because both cannot be correct. They argue that if you believe 
Monica Lewinsky on this issue, you must disbelieve Bill Clinton, and if 
you disbelieve Bill Clinton, you must conclude that he knowingly 
perjured himself when he denied under oath having this kind of contact 
with Ms. Lewinsky.
  Now, this direct issue was addressed by the panel of expert 
prosecutors that we brought to testify before the Judiciary Committee, 
and they all agreed that this kind of issue would never be the subject 
of a perjury prosecution. I would urge you to go back and look at some 
of the testimony that they gave to the Judiciary Committee. They talked 
about the oath-on-oath issue, they talked about what is independent 
corroborative evidence and what is not, and they concluded that no 
reasonable, though responsible, prosecutor would bring this kind of 
case based on that kind of an issue.
  We are not arguing with the managers about the law. We are not 
arguing with the managers about the disparity. We are talking about 
prosecutorial practices, what in reality would be a criminal 
prosecution, and I submit to you that no reasonable, no responsible 
prosecutor would bring this kind of a case based on that kind of 
evidence.

[[Page S937]]

  Thank you.
  The CHIEF JUSTICE. This is a question from Senator Daschle addressed 
to counsel for the President:

       Do you believe that it is a requirement of due process and 
     fairness that you be allowed to participate in the Lewinsky 
     witness debriefing sought by the managers, and do you believe 
     that the House would have asked for the same right if the 
     White House had attempted to interview Ms. Lewinsky?

  Mr. Counsel RUFF. Mr. Chief Justice, that question raises an 
interesting mix of issues, because I think in one respect the House 
managers are correct, that once the Senate determines that it is 
prepared to go forward--I trust it will not--but if it does determine 
that it is prepared to go forward in some way with respect to the 
depositions of witnesses, at that point, with the Senate having made 
that decision, it would be appropriate for both sides to seek a 
voluntary, consensual, typical opportunity to meet with any witness in 
a setting that doesn't involve having the prosecutor with life and 
death authority over that witness doing the debriefing or being present 
while you talk to the witness.
  Thus, although I will take the opportunity of offering to sit in on 
any meeting between the managers and the independent counsel and any 
witness, because I would certainly like to know what the mood and the 
atmosphere of that process really sounded like, the issue here, I 
think, is not so much whether it would be nice to sit in on that 
meeting but whether there can be any hope for due process, fairness and 
opportunity for both sides, or certainly my side--I won't speak for the 
managers--to have an opportunity for a reasonable, fair and open 
discussion voluntarily with any witness who will talk with us, not--not 
to be too rhetorical about this--with the looming presence of the 
prosecutors sitting in the room with us.

  As everyone who practices in this district knows, indeed, it is a 
matter of law that a prosecutor may never interfere with the access of 
any witness to defense counsel. I can't think of much more interference 
than being required to sit in the room with the prosecutor and with 
another prosecutor while that kind of discussion goes on.
  So the answer is, fairness, no. But if it is my only opportunity to 
meet with Ms. Lewinsky, I will take it. But I trust that as a matter of 
due process it will not be.
  The CHIEF JUSTICE. This is a question from Senators DeWine, Collins 
and Murkowski to the House managers:

       With all of the conflicting testimony that exists on the 
     record between Monica Lewinsky and Betty Currie, for example, 
     how are we to resolve the questions of perjury and 
     obstruction of justice without observing the demeanor of 
     witnesses?

  Mr. Manager HUTCHINSON. I do not think there is any way to resolve 
the conflicts in their testimony without calling witnesses. You can 
read the transcripts and you can look at those and you can try to 
determine whether there is any corroborating evidence, how you can 
believe it, make some of those kinds of evaluations. But particularly 
whoever you are looking at, whether it is Monica Lewinsky or Betty 
Currie, there are followup questions and there is the demeanor that 
allows you to determine who is telling the truth and who you believe.
  And in contrast, Mr. Ruff tries to make the point that somebody is 
lying here, and maybe somebody is lying, but a jury --in this case the 
Senators--can look at this and say, well, someone is not recalling the 
same way, someone is more believable because their recollection is 
better, it is corroborated, or you could conclude that someone is 
lying. It doesn't always break down that simply, but you have to 
evaluate that. And that is how you resolve it.
  But let me just come back--I think what we see here today is the 
White House counsel do not want to talk about the facts. They do not 
want to talk about this case. They do not want to talk about 
obstruction of justice; just like in the House, they want to talk about 
the process. They want to talk about everything that is going on except 
for the case of obstruction of justice. And it probably will be the 
news story later on today, the questions that they have raised about 
this.
  But the fact is, it is very simple that they have access to Betty 
Currie. Every time the President has talked to and tried to coach Betty 
Currie, I don't think the President invited the independent counsel in 
when this was under investigation, or the Paula Jones lawyers. I don't 
think that happened. I don't think that--at least from the news clips, 
when I saw Betty Currie hugging the President, I don't think he invited 
the House managers in. I didn't necessarily expect him to. But we have 
to be prepared.
  And I will just tell you right now, so nobody is surprised, if we get 
to call Vernon Jordan, I don't want to delay the U.S. Senate in order 
to be prepared for that, so I confess today that I called up William 
Hundley, the lawyer for Vernon Jordan, to visit with him.
  Now, I hope that if you talk to any witnesses, that if you feel it is 
fair, that you will give us a chance to join with you in that. But, 
obviously, this is an adversary process we are engaged in, and I think 
that we today in this question and answer session that you all so 
graciously extended to us should focus on the obstruction of justice 
charges because that is what you have to determine--on the perjury 
allegation, because that is what we have to determine today.
  I thank the Chief Justice and the Senators.
  The CHIEF JUSTICE. This question is from Senators Kohl and Edwards. 
To whom is it addressed? Oh, it is to the House managers:

       Throughout this trial both sides have spoken in 
     ``absolutes''; that is, if the President engaged in this 
     conduct, prosecutors claim he must be convicted and removed 
     from office, while the President's lawyers argue that such 
     conduct does not in any way rise to an impeachable offense. 
     It strikes many of us as a closer call. So let me ask you 
     this: Even if the President engaged in the alleged conduct, 
     can reasonable people disagree with the conclusion that, as a 
     matter of law, he must be convicted and removed from office--
     yes or no?

  Mr. Manager GRAHAM. Absolutely. And this is a hard case in a couple 
of areas, and I think it is an easy case in many areas.
  The Constitution reads that upon conviction, the person shall be 
removed. You have to put it in the context of the judge cases, because 
that is where it gets to be hard for this body. Because of the 
precedents of the body when you apply the same legal standard of high 
crimes and misdemeanors to the fact that a judge who was convicted of 
perjury was removed by the body, and you conclude in your mind that the 
President committed perjury, you have a dynamic you have to work 
through.
  Mr. Bumpers says there is perjury, then there is perjury. I would 
suggest to you that the allegations of perjury and obstruction of 
justice in this case are not trivial. It is not about a speeding ticket 
or a trivial matter. It is about the activity of the President when he 
was defendant in a lawsuit, a sexual harassment lawsuit, when he was 
told by the Supreme Court you have to play and you have to play fairly.
  If you determine that he committed the crime of perjury and you 
determine that he committed the crime of obstruction of justice, based 
on the precedents of the Senate I think you would have a hard time 
saying under the situation of this case that that is not a high crime. 
But I would be the first to admit that the Constitution is silent on 
this question about whether or not every high crime has to result in 
removal.
  If I was sitting where you are, I would probably get down on my knees 
before I made that decision. Because the impact on society is going to 
be real either way. If you find this President guilty in your mind, 
from the facts, that he is a perjurer and that he obstructed justice, 
you have to somehow reconcile continued service in light of that event.
  I think it is important for this body to not have a disposition plan 
that doesn't take in consideration the good of this Nation. I have 
argued to you that when you found that a judge was a perjurer, you 
couldn't in good conscience send him back in the courtroom because 
everybody that came in that courtroom thereafter would have a real 
serious doubt.
  I will argue to you that when you find this President guilty of 
perjury, if you do, that he has violated his oath and that by a 
consequence of that, some public trust has been lost. And I would show 
to you the body of evidence

[[Page S938]]

from this question, ``Do you trust William Jefferson Clinton?''--the 
American people will tell you--three out of four say no. But the 
American people will also tell you that I understand what happened here 
and some want him removed and some don't. And you have to consider what 
is best for this Nation.
  I will yield to Mr. Buyer in a second, but the point that I am trying 
to make, not as articulately as I can, is that I know how hard that 
decision is. It has also been hard for me.
  It has never been hard to find out whether Bill Clinton committed 
perjury or whether he obstructed justice. That ``ain't'' a hard one for 
me. But when you take the good of this Nation, the upside and the 
downside, reasonable people can disagree on what we should do.
  Mr. Manager BUYER. I would just like to remind all of you that the 
impeachment process is intended to cleanse the executive or the 
judicial office when it is plagued with such a cancer as perjury or 
obstruction of justice, which violates the oath required to hold those 
high offices.
  Now, what may be turning in the gut of some of you are the precedents 
of the Senate, when in fact you have turned out of office, you have 
exercised your judgments of proportionality when these judges violated 
their oaths and had perjury, you said they shall be removed from 
office.
  Now there are some that are going, well, I am uneasy in this case 
with the President. That is what may create a little problem here. I 
would suggest to you that you actually have findings of fact; that the 
Senate has findings of fact that the President, in fact--he lied or he 
did not lie or he committed an obstruction; that you actually have 
findings of fact. And then you can move beyond to the questions of 
application of the law.
  But when the Senate has performed such a cleansing and removed Judges 
Nixon, Claiborne and Hastings, all three of them impeached for perjury 
in some form--and in Judge Hastings' case even though he had been 
acquitted of the criminal case--the Congress, in particular the Senate, 
you have a duty to preserve the integrity of public office, and that is 
what impeachment was precisely designed to do.

  The CHIEF JUSTICE. This is a question from Senators Voinovich, 
Jeffords and Chafee to the House managers:

       In her interviews with the Office of the Independent 
     Counsel, Ms. Lewinsky stated that on January 5, 1998, the 
     President told her not to worry about the affidavit because 
     he had seen 15 others. Did the President mean that he had 
     seen previous drafts of Ms. Lewinsky's affidavit, or did the 
     President mean that he had seen drafts of other affidavits 
     that were in some way connected to the Paula Jones matter?

  Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice. You can take that 
either way. But I believe in the context--and I presented this to you 
the other day--in which the President uttered those words, that the 
most logical conclusion is that he had seen 15 other drafts of hers. If 
you remember, she was discussing with him the issue of whether he 
wanted to see this particular draft of her affidavit. And at that 
particular moment he said, ``No, I don't want to. I have seen 15 
others.''
  Technically speaking, he could have seen 15 other affidavits in his 
life somewhere back in Arkansas, who knows? But it strikes me that the 
logical conclusion, the commonsense conclusion in the context of 
everything else that you see this President was intent on and had in 
his mind, and the interest that he had already shown from all the 
conversations that he had had with Vernon Jordan and others to make 
sure that this affidavit was on track, and knowing that he was going to 
testify in a few days himself in the Jones case, and rely on it and in 
fact did go in and tell the same cover stories that were in this 
affidavit to the court, untruthfully, that the probabilities are pretty 
good, that common sense says that he was saying he had seen 15 other 
drafts of this version of this affidavit. But that is for you to 
decide. That is a judgment call for the triers of fact. Thank you.
  The CHIEF JUSTICE. This is a question from Senator Leahy to counsel 
for the President:

       Could you reply to the statement just made by Manager 
     McCollum.

  Mr. Counsel KENDALL. Mr. Chief Justice, on Thursday afternoon I went 
over, in perhaps tedious detail, the facts relating to the affidavits. 
I pointed out that there was no way in which--there was no evidence 
that the President saw any affidavit draft. Mr. Manager McCollum just 
now, I think, admitted that he has only a speculation. He doesn't have 
any record evidence. The President denied seeing any affidavit draft. I 
pointed out in the managers' chart 7 that their theory about when Ms. 
Lewinsky could have gotten an affidavit was simply wrong because their 
theory was she got it on January 5. This is a single affidavit draft. 
The evidence plainly shows that she could not have gotten it until 
January 6. There is simply nothing in the record--and the independent 
counsel interviewed Ms. Lewinsky extensively, both in interviews and 
before the grand jury--and there is simply no evidence whatsoever that 
the President saw any drafts or, indeed, that there were 15 drafts.
  Let me say a word about whether or not we are addressing the facts. I 
am not going to frighten you. I am not going to go back through the 
obstruction of justice evidence. But I think if you will remember the 
presentation--first by Mr. Craig who addressed in detail the evidence 
with regard to perjury, then if you will recall what Ms. Mills said 
addressing two of the seven allegations of obstruction of justice, and 
with what I said to you on Thursday afternoon for almost 3 hours--and I 
thank you for your uncommon patience; you were attentive all the way 
through that exercise--you know that we have addressed the facts. What 
we had yesterday, what Mr. Ruff has already addressed, is, again, I 
will use the word ``remarkable'' occurrence involving the independent 
counsel.
  We have addressed the facts, and there is simply nothing to support 
in all this record, this heavy, long record, that the President had any 
review of any affidavit or, indeed, that there were more than one or 
two drafts of Ms. Lewinsky's affidavit.
  The CHIEF JUSTICE. This question is from Senators DeWine, Santorum, 
and Fitzgerald to the President's counsel:

       If we are to assume that the various allegations as to 
     obstruction of justice are in fact true, is it your 
     contention that if the President tampered with witnesses, 
     encouraged the hiding of evidence, and corruptly influenced 
     the filing of a false affidavit by a witness, that these acts 
     do not rise to the level of an impeachable offense?

  Mr. Counsel RUFF. Mr. Chief Justice, this is something I won't have 
an opportunity to say very often, but I believe that Mr. Manager Graham 
has, in fact, stated for you the essential of the role that this body 
must play. We will probably differ as to what the right answer to the 
question is, but as to the process and as to the question that must be 
asked, I think he stated it well.
  I believe that the facts do not support the conclusions that are 
embodied in the question. But not only can reasonable people differ on 
the facts, but reasonable people may differ on the outcome. And if, 
indeed, reasonable people can differ, doesn't that mean, by the very 
statement of that proposition, that this body cannot meet its 
constitutional heavy mandate, which is to determine whether or not, 
whatever conduct you believe the President committed, as outlined by 
these managers over the last many days--can you legitimately determine 
that he ought to be removed from office.
  And all I can do, I suppose, is to remind you, as I have too 
frequently, I am sure, that if you try to put yourself in the minds and 
the hearts of the men who created our system of Government, they wanted 
to know only really one answer to one question, as framed in many 
different ways, but the essence remains the same: Is there a sufficient 
danger to the state--danger to the state--to warrant what my colleagues 
across the aisle here have called the political death penalty. And I 
think the answer to that is no.
  The CHIEF JUSTICE. This is a question from Senator Wellstone to 
counsel for the President:

       To what extent should the views of the American people be 
     taken into account in considering whether a President should 
     be removed from office?

  Mr. Counsel RUFF. Mr. Chief Justice, I think that the answer to that 
question is not the polls that you read in

[[Page S939]]

the newspapers or that you see on your evening news, whatever those 
numbers may be; that is only one clue as to what the American people 
are thinking. And each of you knows the people in your jurisdiction far 
better than any polltaker does and that certainly I do.

  But surely one way to test the ultimate question that I just 
described in response to the last inquiry from the Republican side of 
the House, is to ask yourself, on the basis of experience over the last 
year, on the basis of your experience in the political--and by that I 
mean political in the very best constitutional sense of the term as 
used by Alexander Hamilton--as to your sense of the political structure 
of this country and what the people are saying to you and what your 
sense of their needs is: Do they need the kind of cleansing that 
Manager Buyer spoke about?
  I think the answer to that, if you look within the body of people you 
are most familiar with, must be no. This isn't to say that it is a 
popularity contest, that we ought to go out and have a referendum or 
another poll before you all decide on this. But surely the sense of the 
people, the will of the people, the belief of the people in this 
President's ability to govern must educate each of you, not mandate a 
result, but surely guide the result that you reach in this proceeding.
  The CHIEF JUSTICE. This is a question from Senator Collins to the 
House managers:

       The President's counsel has made much of Ms. Lewinsky's 
     statement that no one ``promised'' her a job for her silence. 
     She did not testify, however, that no one promised her a job 
     in return for a false affidavit--or, for that matter, that no 
     one implied that she would get a job for her cooperation. Can 
     you think of any reason why we should not call Ms. Lewinsky 
     to help clarify such ambiguous testimony?

  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. That is an 
excellent question and really goes to the heart of some of the 
disputes.
  I think as you read the testimony of Ms. Lewinsky, as you read some 
of the other areas of testimony, questions come to your mind. You would 
like to follow up, you would like to ask her a question, and that one 
comes out and flags you that that is a question that would like to be 
asked: No one promised her a job for her silence, and that is the 
testimony that she gave in response to a question in the grand jury.
  But I believe this is a case in which actions speak louder than 
words. I think that actions and what took place and the commonsense 
understanding of what is happening here demonstrate the case that there 
was a false affidavit that was obtained and that was in conjunction 
with the obtaining of a job for Monica Lewinsky.
  So I think that is a natural question, and I think that also if you 
read, if you look at the testimony of Monica Lewinsky, I think it is 
clear that the case is made that she was encouraged to lie and she was 
also encouraged to sign a false affidavit and she was also provided a 
job coincidentally at the same time.
  I would like to take the opportunity, if I might, Mr. Chief Justice, 
in further answering a question that was raised earlier; it was on the 
false affidavit. That is, I think, related to the question as well.
  During Mr. Kendall's presentation a few days ago, he made this 
statement:

       The idea that the telephone call [between Lewinsky and 
     Clinton on January 5] is about that affidavit is sheer, 
     unsupported speculation and, even worse, it is speculation 
     demolished by fact.

  This is the statement that Mr. Kendall gave the other day on this 
floor, as cited in the Congressional Record, summarizing his 
presentation that the idea that Clinton and Lewinsky talked about the 
affidavit ``is sheer, unsupported speculation and . . . demolished by 
fact.''
  Well, the record demonstrates that Monica Lewinsky's testimony is 
that she had a conversation with the President on the telephone in 
which she asked questions about the affidavit. She was concerned about 
signing that affidavit. And according to Ms. Lewinsky, the President 
said, ``Well, you could always say the people in Legislative Affairs 
got it for you or helped you get it.'' And that is in reference to a 
paragraph in the particular affidavit.
  Now, my question to Mr. Kendall is, Would you agree, Mr. Kendall, 
that your assertion that there is no support for it in the record is 
that you are totally rejecting the testimony of Monica Lewinsky as 
totally unbelievable? And once again you have a conflict that is 
presented in the testimony, and there is only one way to resolve it, 
and that is to hear from the key witnesses.
  The CHIEF JUSTICE. This is a question from Senator Lautenberg to 
counsel for the President:

       Could you reply to the question put by the manager?

  Mr. Counsel KENDALL. Mr. Chief Justice, let me address the first part 
of Mr. Manager Hutchinson's response; and that is, whether the 
statement by Ms. Lewinsky that ``Nobody ever promised me a job for my 
silence'' covered other possible promises to her. And it is quite 
clear, when you read all the interviews that were done of her by the 
independent counsel, all the grand jury testimony, that she 
unequivocally testified there were no promises made to her, there were 
no assistances given to her, that were in any way conditioned upon her 
testifying a certain way or giving a certain kind of affidavit. And she 
is unequivocal about that.
  Now, in the statement that she made that I quoted, she does not say 
nobody ever did these other things, but she said that in her previous 
testimony. She uses the offer of a job as simply a proxy for anything 
that would connect the assistance she would receive with testifying in 
a certain way. There is simply no evidence anywhere in the record. And 
the independent counsel covered that with her in detail. She felt 
compelled to volunteer her statement at the end of the process because 
they had left some innuendo in the record that she had been provided 
assistance. But her testimony is unequivocal. I have quoted it.
  Now, the only testimony in the record about linking the job to some 
assistance in the Jones case comes from the Linda Tripp audiotapes. 
And, again, Ms. Lewinsky could not be clearer in her grand jury 
testimony what she told Linda Tripp was false. There was no connection 
there whatsoever. Her proffer, which I put up on the board, was quite 
unconditional. And this you have in your materials. This is in her own 
handwriting: Neither the President nor Mr. Jordan nor anyone on their 
behalf asked or encouraged her to lie.

  So with regard to the first part of Mr. Manager Hutchinson's 
question, there is simply no evidence, again, that any kind of 
assistance to Ms. Lewinsky was conditioned on her performance in any 
way in the Jones case.
  Now, with regard to the affidavit, I stand on what I said before you 
on Thursday. And I want to be very clear about what Mr. Hutchinson's 
presentation was in chart No. 7 that I was responding to. And I think 
it is quite important to recall yesterday that a question was addressed 
to the House managers whether there were any statements contained in 
their exhibits which contained misrepresentations or omissions that, in 
the interest of fairness to justice, they would like to correct; and 
Mr. Manager Hutchinson said, ``We are not aware of any corrections that 
need to be made on any of our exhibits offered to the Senate.''
  I would simply rest on the presentation. I am not going to take you 
through, again, the many errors in the charts. Those were not refuted 
in any way. They rested on their charts. I leave that to your judgment.
  But with regard to chart 7, what Mr. Manager Hutchinson told you 
almost a week ago was that chart 7 was a summary of what happened on 
January 5: Ms. Lewinsky meets with her attorney, Mr. Carter, for an 
hour; Carter drafts the affidavit for Ms. Lewinsky; she calls the 
President; the President returns Ms. Lewinsky's call; and then they had 
a discussion about this draft affidavit.
  The point of my demonstration through Mr. Carter's testimony and 
through his billing records was in fact that the affidavit had been 
drafted the next day. They could not have had a discussion about the 
affidavit on that date. And I think the record is quite clear on that.
  The CHIEF JUSTICE. This is a question from Senator Lott to the House 
managers:

       Do you have any comment on the answer given by the 
     President's counsel with regard to the views of the American 
     people?

  Mr. Manager HYDE. Mr. Chief Justice, distinguished Senators, this is 
a

[[Page S940]]

fascinating question. Edmund Burke was asked that once, and he said 
that a member of Parliament owes the highest degree of fidelity to his 
constituents, but he doesn't owe his conscience to anybody.
  We have, or we have not, a representative democracy. We are not 
delegates who are sent here to weigh our mail every day and then to 
vote accordingly. Our work here is not an ongoing plebiscite. We are 
elected to bring our judgment, our experience, and our consciences with 
us here.
  I have always believed--and I believe more firmly than ever; and this 
experience confirms me in that belief--there are issues of transcendent 
importance that you have to be willing to lose your office over. I can 
think of several that I am willing to lose my office over--abortion is 
one; national defense is another; strengthening, not emasculating, the 
concept of equal justice under the law. My life is devoted, as a lawyer 
--I have been on the Judiciary Committee; this is my 25th year--and 
equal justice under the law is what moves me and animates me and 
consumes me. And I am willing to lose my seat any day in the week 
rather than sell out on those issues.
  Despite all the polls and all the hostile editorials, America is 
hungry for people who believe in something. You may disagree with us, 
but we believe in something.


                                 Recess

  Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that we recess 
the proceedings for 15 minutes.
  There being no objection, at 11:19 a.m., the Senate recessed until 
11:36 a.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.
  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. LOTT. Thank you, Mr. Chief Justice. We will go approximately 
another hour, if questions are still available--and I assume they will 
be--and then we will break for about an hour for lunch.
  The CHIEF JUSTICE. This is a question from Senator Biden to the House 
managers:

       If a Senator believes that the President may have lied to 
     the American people, his family and his aides, and that some 
     of his answers before the grand jury were misleading or half-
     truths, but that he could not be convicted in a court of law 
     for either perjury or obstruction of justice, is it the 
     opinion of the House managers that his actions still justify 
     removing the President from office?

  Mr. Manager BARR. Thank you, Mr. Chief Justice. I have taken two 
public oaths in my career in the service of the people of this great 
land. One was as a Member of Congress; the other was as a U.S. 
attorney. As a U.S. attorney, it was my job on behalf of the people of 
the United States to prosecute cases against individuals and other 
entities that violated the Criminal Code of the United States of 
America. That Criminal Code, as you are well aware, includes the 
offenses of perjury and obstruction of justice.
  That Criminal Code does not include the offenses of lying to one's 
family. That is not what brings us here today. What brings us here 
today is the belief by the House of Representatives in lawful public 
vote that this President violated, in numerous respects, his oath of 
office and the Criminal Code of the United States of America--in 
particular, that he committed perjury and obstruction of justice.
  I can tell you, as a U.S. attorney serving under two Presidents, that 
I would prosecute these cases, because I did prosecute such cases. I 
prosecuted cases against people, including members of the body from 
which we as managers come, who appeared before grand juries and lied, 
who appeared before grand juries and misled grand juries, people who 
obstructed justice, people who tampered with witnesses in precisely the 
same way that this President has committed perjury, tampered with 
witnesses and obstructed justice.
  We respectfully submit to the Senators of the United States of 
America assembled here today that these are prosecutable cases, that 
they are cases that have been prosecuted, and that the question before 
this body, we respectfully submit, in the House of Representatives' 
articles of impeachment, is not that the President lied to his family. 
What is before this body, we respectfully submit, as contained in the 
two articles of impeachment passed by the House of Representatives, is 
that this President violated his oath of office and committed the 
offenses of perjury and obstruction of justice, which we firmly believe 
on behalf of the people of the United States of America provide a 
sufficient basis on which this body, exercising its deliberative power 
and its legitimate jurisdiction, may find that this President, as 
people in courts of law similarly but not identically situated, are 
indeed found guilty and removed from positions of trust, as this 
President ought to be for committing the perjury and obstruction of 
justice --not lying to his family.

  Thank you.
  The CHIEF JUSTICE. This is a question from Senators Snowe, Mack, 
Chafee, Burns, and Craig to the House managers:

       Before Ms. Lewinsky was subpoenaed in the Jones case, the 
     President refused on five separate occasions--November 3, 
     November 10, November 12, November 17, and December 6--to 
     produce information about gifts from Lewinsky. The 
     President's counsel argued the President was unconcerned 
     about these gifts. If that is the case, why didn't he produce 
     these gifts in November and December?

  Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators for the 
question. This case needs to be looked at for the mosaic that it is.
  There is a reason why the President never produced gifts. There is a 
reason why the President continued to give Ms. Lewinsky gifts. It is 
because he believed that she would never produce them. We know that 
from her testimony.
  In my presentation to the Senate a week ago, I quoted from the 
transcript where she said, ``Nobody ever asked me to lie.'' But then 
she also said there was never any doubt but that ``we" would deny the 
relationship if asked.
  We see that throughout the entire proceeding. We see that before 
Monica Lewinsky's name appeared on the list--on December 5--on the 
witness list. And we especially see it after. In fact, Monica Lewinsky 
went to the President and said, ``I've been subpoenaed. They are asking 
for gifts. What should I do? Maybe I should give them to Betty.'' And 
the President said, ``Let me think about that.'' And we all know by now 
that within a few hours Betty Currie called Monica Lewinsky and came 
and retrieved the gifts, not to give them to the Jones lawyers pursuant 
to the subpoena, not to cooperate with the sexual harassment lawsuit; 
she took the gifts and she put them under her bed.
  Members of this body, it begs common sense for any interpretation of 
that conduct to be somehow cooperative with the legal proceedings in 
the sexual harassment case. Every piece of this puzzle, when put 
together, demonstrates a very clear pattern of obstructing justice, not 
to cover up personal affairs, not to cover up an indiscretion, but to 
destroy Paula Jones' rights under the sexual harassment laws of this 
country to have her day in court. That is the ultimate question that 
this body is going to have to address.
  Yes, reasonable minds can differ on this case as to whether the 
President should be removed office. But reasonable minds can only 
differ if those reasonable minds come to the conclusion that 
enforcement of the sexual harassment laws in this country are less 
important than the preservation of this man in the office of the 
Presidency. And that is the ultimate question that this body is going 
to have to answer. What is more important--the survival of Bill 
Clinton's Presidency in the face of perjury and obstruction of justice, 
or the protection of the sexual harassment laws in this country?
  And imagine, every victim in the workplace will be waiting for your 
answer.
  The CHIEF JUSTICE. This is from Senator Daschle to the House 
managers:

       Will you agree to arrange to have prepared a verbatim, 
     unedited transcript of any debriefing which may occur with 
     Ms. Lewinsky for immediate distribution to the Senate? And 
     will you agree also to provide for the inclusion of any such 
     debriefing of representatives of the Senate, one selected by 
     the majority and one by the minority?

  Mr. Manager McCOLLUM. Mr. Chief Justice and Members of the Senate, it 
is not our intent to be doing a deposition, a formal presentation, a 
preparation for the Senate, if we talk to Ms. Lewinsky. It is our 
intent to do what any good attorney would do in preparing to go to 
trial, presuming--we don't

[[Page S941]]

know that you are going to allow us to have witnesses--but presuming we 
are going to be able to depose and have witnesses, and that is to meet 
with the witness, talk with the witness, and prepare the witness. And 
any good attorney who does that is going to meet his or her witness in 
their own confidences, in their own quiet respite. We discover things 
that way. We are not prepared. No. The answer to your question is no, 
we are not prepared to say we are going to give you our work product, 
which is what that would be.
  ``Work product'' is a technical term of law which, for anybody who is 
out in the public, is what lawyers do all the time. And they work on 
their case, and they prepare what they are going to do, and then they 
present it. That is the system we have.
  Somebody said--I think it was Mr. Hutchinson who said earlier--this 
is an adversarial position. The White House counsel will have their 
chance to talk to witnesses that they are going to present; we will 
have our chance to talk to ours. Then there is the opportunity for the 
depositions, which is what comes next, which is the formal proceedings 
when we both have a chance to talk with them. Then, of course, if you 
let us call them as witnesses here, they will be here, and they will 
get cross-examined, and examined, and all the questions you can imagine 
will be asked. That is the traditional American system of justice.
  So, no, we would not give you our work product notes. We have no idea 
what would be in them. We don't think that is appropriate. We think 
that a lot is being made out of this. We attempted to do this a couple 
of weeks ago. We would have liked to have talked to her earlier. It has 
not worked, that we have been permitted to, for reasons that we are not 
sure. But the reality is, this is the normal process. We would talk to 
any other witness despite however the White House counsel wants to 
argue about it. They do the same thing.
  I yield what time I have left to Mr. Graham.
  Mr. Manager GRAHAM. I would like to echo the work product analogy.
  But let me just say this as directly as I know how to say it --that 
if this body as a whole believes we are going to do anything improper, 
then whatever rule you need to fashion to make sure we don't, you do 
it, because nobody should ever doubt whether a witness comes into this 
body in this case with anything other than testimony that was truthful. 
If you want to go down the road of the atmosphere that people were 
approached and how they were treated about being witnesses, let's go 
down that road together. Let's bring in people in this body and let's 
see how they were approached when they were asked to participate in 
this trial, what the atmosphere and the mood was, when it comes to 
their time to be identified as witnesses.
  So I would just say as strongly as I know how that if you have any 
doubt about us and what we are up to, you fashion rules so we do not 
create an unfairness in this body; but please, when we ask for 
witnesses and we raise doubt about how people may have been treated, 
that you give us the same opportunity to explore the moods and 
atmosphere of those witnesses.
  The CHIEF JUSTICE. This question is to the House managers from 
Senators Murkowski, Gregg, Grams, Thomas, Crapo, Thompson and Hatch:

       The President's counsel rely upon the President's 
     statements in many instances. Therefore, the President's 
     credibility is at issue. Is the President's credibility 
     affected by the fact that, until the DNA evidence surfaced, 
     the President denied any improper relationship with Ms. 
     Lewinsky?

  Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators.
  First, I don't think it was a compliment to me from my colleagues 
that as soon as the issue of DNA came up, they all pointed to me and 
told me to come up and answer the question. I will do my best.
  Obviously, as the triers of fact, Members of this body individually 
will have to make determinations respecting credibility of the 
President as well as the other witnesses. It is indisputable, however, 
that from January 1998, when he spoke at the deposition, until August 
17, when he made a quasi-admission before the grand jury, there were 
intervening factors that required him to change his position.
  We saw from the moment the story first broke in the press about 
Monica Lewinsky the President making denials in the most emphatic of 
ways, and not only doing it repeatedly himself but sending out his 
Cabinet and his aides and his friends to do it on his behalf. That 
continued up until the eve of the deposition. Was it because the 
President suddenly had a change of heart? Was it because his conscience 
was suddenly bearing down upon him? Or were there other reasons? Well, 
let's see.
  Just before his deposition testimony, Monica Lewinsky decided to 
cooperate with the Office of Independent Counsel. Monica Lewinsky 
suddenly turned over a blue dress. And that is fascinating because, as 
you know from the record and you have heard from the presentations, the 
President was prepared to take Monica Lewinsky and trash her in a very 
public way until the dress was turned over to the FBI. Remember what he 
said to Sidney Blumenthal. He called her a stalker. He said that she 
was threatening him. But he no longer could make these presentations 
publicly or privately once he knew there was potential physical 
evidence.
  So I think there are a number of factors Members of this body can 
look at with respect to credibility just from the cold record. But if 
that is not enough, if Members of this body are not satisfied that they 
are able to resolve these issues of credibility, then the way to handle 
this is to follow the dictates of the Constitution and our Framers who 
understood the value of trial and bringing witnesses forward, placing 
them under oath and giving the triers of fact the opportunity to see 
the witnesses, to hear their testimony, to gauge their credibility.
  That is what the purpose of a trial is for. And the House managers 
entrust this body to make sure that at the end of the day this is more 
than a proceeding; this is an arena where the truth will be determined 
not just for our time but for history.
  The CHIEF JUSTICE. This question is from Senator Murray to counsel 
for the President:

       Could you reply to the comments of Manager Rogan?

  Mr. Counsel RUFF. The existence of DNA or any other evidence or any 
other events before the President's grand jury testimony had no bearing 
whatsoever on his determination which he carried out on that day in the 
middle of August to answer the grand jurors' questions truthfully. He 
did so. It may be that the managers can speculate about, well, there 
must have been some reason why in the middle of August, after some 
months of denying to the Nation and his family any misconduct, he 
changed his mind and told the truth. But there was one reason why he 
did that. Because he went before the grand jury for the United States 
District Court of the District of Columbia and told the truth.

  Now, it has been suggested by many of the managers over the last day 
that the President was somehow anxious to--or contemplated the prospect 
of, as they put it, trashing Ms. Lewinsky. This issue was raised 
yesterday and has been raised again by Mr. Manager Rogan. I think it is 
time to set that record straight.
  Mr. Manager Bryant yesterday, as he was discussing the Dick Morris 
issue, purported to recite from the independent counsel's referral and 
purported to describe a conversation between the President and Mr. 
Morris in which, to quote from Mr. Manager Bryant, ``According to 
Morris, the President warned him''--that is, Mr. Morris, he warned the 
President--excuse me. Let me start before that.

       Later the next day, the President has a followup 
     conversation with Mr. Morris, in the evening, and says that 
     he--

  That is, the President--

     is considering holding a press conference to blast Monica 
     Lewinsky out of the water. But Mr. Morris urges caution. He 
     says, ``Be careful.''

  And that he warned the President not to be too hard on her.
  Well, 180 degrees off from that description, let me read you what, in 
fact, the independent counsel's office referral says, and I am sure it 
was just a slip of the read that you heard yesterday.

       The President had a followup conversation with Mr. Morris 
     during the evening of January 22nd, 1998--

  This is page 127 of the independent counsel's referral--


[[Page S942]]


     when Mr. Morris was considering holding a press conference to 
     ``blast Monica Lewinsky `out of the water.''' The President 
     told Mr. Morris to ``be careful.'' According to Mr. Morris, 
     the President warned him not to ``be too hard on [Ms. 
     Lewinsky]''. . .

  Close. Close. One hundred eighty degrees off. Beyond that, let me be 
very clear about one proposition which has been a subtheme running 
through some of the comments of the managers over the last many days. 
The White House, the President, the President's agents, the President's 
spokespersons, no one has ever trashed threatened, maligned or done 
anything else to Monica Lewinsky--no one.
  The CHIEF JUSTICE. This is a question from Senators Hutchison of 
Texas, Snowe, Allard, Collins and Hatch to the House managers:

       The counsel for the President have said that the heart of 
     this case is private consensual sex. A tenet of sexual 
     harassment law, however, is that the implied power 
     relationship between a supervisor (in this case, the 
     President), and a subordinate (in this case an intern), is 
     enough to constitute sexual harassment.
       This is well settled in military law and is developing 
     along this line in the civilian sector. In your view, how 
     might acquittal of this case affect laws regarding sexual 
     harassment?

  Mr. Manager ROGAN. Mr. Chief Justice, the law of sexual harassment is 
a relatively new genre. If somebody wanted to make a case before the 
Congress had stepped in and improved upon the law, it essentially 
reduced women in the workplace, for instance, who had been harassed 
into what has been referred to as a ``he said-she said'' type of 
argument, and so the law has improved upon that type of argument 
because the law recognizes today that sometimes there can be evidence 
of a pattern of conduct, and that conduct is relevant to prove how 
somebody may have behaved.
  Consider what would happen if victims of the workplace get a message 
from the Congress of the United States that what the President did with 
Paula Jones, or allegedly did with Paula Jones, is of no constitutional 
significance here. It would send a message to every woman in the 
workplace that if they have a complaint against an employer who is 
attempting to use a position of power and authority to pursue improper 
advancement, the message would be that you might as well just keep 
quiet about it because the person can lie in court and suffer no 
recrimination. First, they will probably never be discovered, because 
most of the time DNA evidence doesn't suddenly appear, but even if DNA 
evidence does appear to corroborate the victim, the message is that as 
long as he is appropriately apologetic and the lie was, after all, only 
about sex, it is of no import with respect to removing them from their 
job or having them suffer any legal consequences. I think that would be 
a horrible message.

  The reason the law allows this pattern-of-conduct evidence is because 
sexual harassers operate in a unique way. They get their victims alone. 
They typically don't commit these crimes under the glare of klieg 
lights or in front of television cameras or where witnesses can 
testify. They get their victims alone for one reason--because they know 
through intimidation and fear one of two things will happen. Through 
intimidation or fear, the victim will submit; or through intimidation 
or fear, the victim will not submit but will keep their mouth shut 
about it.
  What is the message to these victims who do brave losing their job, 
being destroyed publicly, having their reputations destroyed? What is 
the message to them if, when they come forward and they want to pursue 
their case, we take the legal view that somebody can perjure 
themselves, somebody can lie, somebody can obstruct justice, somebody 
in the greatest position of power in our country can take whatever 
steps are necessary to destroy that woman's claim in a court of law 
where she is entitled to pursue it if at the end of all of this we say: 
Well, you know, he was embarrassed, he did lie but it was only about 
sex? Lies in sexual harassment cases, Members of the Senate, are always 
only about sex.
  The question before this body is, what type of validity are we going 
to give these laws and what sort of message are we going to send to 
victims in the workplace? I pray that we can put personal relationships 
aside with respect to how people individually feel about this President 
personally and how they feel about his administration and focus on what 
is the ultimate conclusion legally and what is the precedent that would 
be set if we turned a blind eye to this sort of conduct.
  The CHIEF JUSTICE. This is a question from Senators Boxer, Feinstein, 
Landrieu, Mikulski and Murray to counsel for the President.

       Has Ms. Lewinsky ever claimed the relationship was other 
     than consensual and was not Ms. Jones' case dismissed as 
     having no claim recognized by law?

  Mr. Counsel RUFF. No. And yes. Indeed, as Mr. Manager Rogan has told 
you, and others before him on the managers' side, our sexual harassment 
laws and our civil rights laws are of critical importance to all of us. 
My colleague, Ms. Mills, spoke eloquently on that subject a couple of 
days ago.
  But it is important to understand, I believe, with no sense at all 
that we are in any way diminishing the importance of those laws and of 
the rights of every American citizen to seek justice under those laws, 
that we are talking about a case in which the trial judge determined 
that on all the evidence that had been gathered and all the claims that 
plaintiff had made and all the discovery that had been taken, there was 
no case. That is justice. That is the way the system works. The 
plaintiff brings the claim, the process moves ahead, and a judge 
ultimately makes the decision. And this didn't have anything to do with 
what President Clinton said in his deposition on January 17. What the 
judge ruled was, first, that that evidence was irrelevant to her 
consideration; and then ultimately, in April of last year, that there 
simply was no case.
  We accept the results of the justice system whether they go against 
us or whether they go for us. In either event, it is justice.
  The CHIEF JUSTICE. This is a question from Senator Thompson to the 
House managers:

       Is there any reason to believe that there is any 
     relationship between the President telling Mr. Blumenthal 
     that Ms. Lewinsky was a stalker and expressing his 
     frustration about not being able to get his story out with 
     the fact that shortly thereafter negative stories about Ms. 
     Lewinsky, including the allegation that she was a stalker, 
     began to appear in news articles quoting sources at the White 
     House?

  Mr. Manager HUTCHINSON. Well, I appreciate that question. And thank 
you, Mr. Chief Justice. Because I made a note of Mr. Ruff's statement 
that no one--and I believe he specified the President, his aides, or no 
one has ever trashed or spoken ill--used some other words--of Monica 
Lewinsky. It really caught me as striking, in light of the sworn grand 
jury testimony of Sidney Blumenthal. And, of course, he is testifying 
as to what the President told him. And, of course, in that conversation 
the President told Sidney Blumenthal, as described by Mr. Blumenthal, 
that: Monica Lewinsky came at me and made a sexual demand on me. I 
rebuffed her. The President said: I have gone down that road before, I 
have caused pain for a lot of people. I am not going to do that again. 
She, referring to Monica Lewinsky, threatened the President. This is 
the President's statement. It goes on and describes it; she was known 
as a stalker.

  In my understanding that is trashing, that is speaking ill, that is 
being very critical and doing everything you can to basically destroy 
her reputation.
  Now, why was he telling Sidney Blumenthal that? Was he trying to use 
Sidney Blumenthal to get the message out to the public and to the grand 
jury, who might hear this, that she is not a believable person? That 
the whole idea is that she came on to him, that threatened the 
President of the United States? I think--I don't understand Mr. Ruff's 
representation to the Senators that no one, including the President or 
aides, has ever trashed Monica Lewinsky.
  Now, I think it is important also, at that particular point in time, 
the President knew that Sidney Blumenthal and John Podesta would be a 
witness before the grand jury. That was his testimony. That is what the 
President of the United States admitted to. He said he knew that they 
were going to be witnesses. And, clearly, that constitutes obstruction 
of justice; when he knows that they are going to

[[Page S943]]

be a witness, he gives them false information knowing they are going to 
repeat it to the grand jury, and that is an element of one of the 
pillars of obstruction.
  I want to come back to some things that have been said about the 
Jones case. First of all, it has been characterized as a ``no win'' 
case--that Judge Susan Webber Wright issued that order.
  Well, if the truth had been known, what we know now about the 
relationship, about the pattern of conduct, would that have made a 
difference? And, of course, when those facts came out it was right 
before a decision by the Eighth Circuit Court of Appeals that might 
have reversed Judge Wright's order that the President of the United 
States made a decision he could settle this case for eight hundred and 
something thousand dollars.
  What would have happened? Maybe Paula Jones would not have had to 
have gone through that many years of litigation if the truth had just 
come out.
  But there was a pattern of obstruction of justice, of lying, of 
coaching witnesses, of tampering with witnesses, which ultimately led 
to a defeat of that case and the truth not coming out. But when it came 
out, it made a difference; it made a difference for that plaintiff in 
that civil rights case.
  Senator Hutchison asked a question about whether the power of the 
position makes the difference in sexual harassment cases. Let me assure 
you, if there is any chief executive officer of any company, whether it 
was consensual or not, with an intern or a young person half of the 
officer's age and whether it was--whatever they termed it at that 
point, whether it was a subordinate employee--and that is the key 
language, ``subordinate employee,'' then, yes, Senator, it does make a 
difference, and that is the crux of many cases that are brought into 
court to protect women against sexual harassment in the workplace. I 
think it is a linchpin of this act that this Congress passed. So I 
think that when you look at the overall picture, there is that pattern 
of obstruction of justice.
  Senator Biden asked a question, Would any prosecutor bring this case 
forward? Let me tell you, it would be easier--and I say this with great 
deference to the Senate--but it would be easier to win a conviction 
beyond any reasonable doubt, and I could win a conviction beyond a 
reasonable doubt in a court in this country on obstruction of justice 
because I know that common sense permeates a jury panel whenever they 
hear this case and the perjury--they are not going to buy, they are not 
going to accept what ``is'' is. They understand what these words mean, 
and common sense will apply. And I know that common sense exists in the 
Senate of the United States.
  But let me assure you that this is a case that I would bring forth 
without any hesitation, and I believe the proof would demonstrate a 
conviction beyond a reasonable doubt.
  The CHIEF JUSTICE. This question is from Senator Kennedy to the 
counsel for the President:

       Could you reply to Mr. Hutchinson's allegations?

  Mr. Counsel RUFF. I think it important because the question put to 
the House managers, Mr. Chief Justice, was whether there was some 
effort or some relationship between Ms. Lewinsky and a series of 
articles or stories that supposedly appeared in the early days 
following the revelation of this investigation. I think it is important 
to recognize what the real facts are here.
  This was the point made at the very end of my testimony before the 
House Judiciary Committee on December 9. One of the members of that 
committee spoke at great length and quite heatedly about what he 
believed to have been a plan to disseminate unfavorable information in 
the press, and he submitted for the record a number of newspaper 
articles.
  The articles that he submitted, which were largely spun off of one 
Associated Press story, did not contain two--at least two--statements 
that made it very clear that the accusation that there was some effort 
on the part of the White House to disseminate disparaging information 
were simply false.
  In an Associated Press story of January 31, which was used by a 
member of the House Judiciary Committee as one of his examples of how 
the White House was supposedly coordinating such an attack, there was 
omitted the following portion. This is a statement by Ann Lewis, who is 
the White House communications director:

       To anyone who was saying such things about Ms. Lewinsky, 
     either it reflected a lack of coordination or thought or 
     adult judgment. We are not going down that road. It is not 
     the issue. A discussion of other people is not appropriate.

  That is on January 31. Retrospectively, when Ms. Lewinsky had already 
begun to cooperate with the independent counsel, the Los Angeles Times 
wrote the following:

       From the beginning, the White House has been careful about 
     what it has said of Ms. Lewinsky. The week the Lewinsky story 
     broke in January, Clinton's press secretary, Mike McCurry, 
     signaled the tone the White House would take by deflecting 
     questions about whether the 24-year-old intern was less than 
     stable.

  Mr. McCurry:

       ``I can't imagine anyone in a responsible position at the 
     White House would be making such an assertion. I've heard 
     some expressions of sympathy for what clearly someone who is 
     a young person would be going through at a moment like 
     this.'' And McCurry quickly signaled that the marching orders 
     had not changed once Lewinsky made a deal with the 
     independent counsel, Kenneth Starr, for immunity from 
     prosecution.

  I think it is important that the record be clear that the stories 
about which the managers were asked in their last question simply never 
reflected any plan, coordinated or uncoordinated, to do anything other 
than treat Ms. Lewinsky with respect.
  The CHIEF JUSTICE. This question doesn't show which Senators are 
submitting it.
  Mr. LOTT. Senator Hatch.
  The CHIEF JUSTICE. This is a question from Senator Hatch:

       Isn't it true that Chief Federal District Judge Johnson 
     ruled today--in an order that she authorized to be 
     released to the public--that Ms. Lewinsky's immunity 
     agreement, which requires her ``to make herself available 
     for any interviews upon reasonable requests,'' compels her 
     to submit to an interview with the House? What light does 
     this shed on the earlier debate on this matter?

  I am sorry, it is addressed to the House managers.
  Mr. Manager BRYANT. Mr. Chief Justice, I think certainly having come 
from an experience of practicing law and learned so much over the years 
and trying cases and putting together cases in an ethical and 
appropriate fashion, to come into a political proceeding, and as we 
have dealt with this, and I think as the lawyers to my left had to deal 
with the same type of situation, in a political realm, not just in the 
Senate, but months and weeks before we came in to here, is very 
difficult.
  What we have seen this morning is a completely innocent standard 
practice of sitting down with a potential witness before you have to 
list your witnesses Monday and deciding whether or not you want to use 
her.
  They have talked about lawyers committing malpractice by not taking 
depositions. I submit it would be close to that if you don't talk to a 
witness before you call that witness. Certainly, while the OIC has had 
communication with her over some time, we have not. We have not had 
contact with any of these witnesses.
  I alluded earlier to the White House and the other witnesses that 
work for the White House that we might be looking at calling. I must 
presume by this conversation in this area of questioning that they have 
not had any contact about this case with Ms. Currie and Mr. Podesta and 
Mr. Blumenthal, and that even a friend of the White House, Mr. Vernon 
Jordan. We are not asking we be privy to every time they say hello in 
the hallway to these people or may sit down and talk with them. We 
understand the realities of life. We simply just wanted that crazy idea 
that maybe we ought to talk to a witness before we decide whether or 
not we want to list that witness.
  I think to answer that question--and I will sit down--Judge Johnson 
clearly vindicated this right to do that, to accomplish that through 
the immunity agreement. I apologize if we have offended the Senators. 
We certainly didn't intend to do that. We certainly didn't intend to 
break any rules about this, and we don't think we did.
  Certainly, if we are going to go down that road, and if you see it is 
appropriate that we have a rule you can agree on, we would be happy to 
abide

[[Page S944]]

by that, but we would simply like equal treatment with the other 
witnesses, also with the White House and their attorneys. Thank you.
  The CHIEF JUSTICE. This question is to the House managers from 
Senators Collins and Feingold:

       On the basis of the President's and Betty Currie's 
     testimony concerning their conversation on Sunday, January 
     18, 1998, have each of the elements of obstruction of justice 
     under 18 U.S.C., section 1503, or witness tampering under 18 
     U.S.C., section 1512, been met? We are particularly 
     interested in your analysis of whether the Senate can infer 
     that President Clinton intended to corruptly influence or 
     persuade Ms. Currie to testify falsely and the weight to be 
     given Ms. Currie's testimony in that regard.

  Mr. Manager HUTCHINSON. The answer is that, under 18 U.S.C. section 
1503, there is a case for witness tampering in the conversation between 
President Clinton and Betty Currie.
  I want to refer you to a case, United States v. Shannon, which is an 
Eighth Circuit Court of Appeals case decided October 12, 1987. And for 
you lawyers here, it has been Shepardized. It is good law, and it 
really puts this into perspective.
  In the case, the defendant contended that the evidence did not 
support a conviction under 18 U.S.C. section 1503 because the 
Government did not prove that the witness in this case, Gray, was ever 
a witness before the grand jury or that the defendant knew that that 
person was going to be a witness before the grand jury. And this is 
what the court said:

       This argument is . . . without merit. A conviction under 
     section 1503 for attempting to influence a witness is 
     appropriate so long as there is a possibility that the target 
     of the defendant's activities will be called upon to testify 
     in an official proceeding.

  Now, this gentleman, this defendant, Mr. Shannon, went to jail. He 
made the defense that, ``Well, I didn't--you know, that person was 
never called as a witness, it was never an official proceeding,'' and 
it didn't fly. He was convicted. It was affirmed by the Court of the 
land and, presumably, he went to jail. Now, that is the law of the land 
in the criminal courts of our country. And so there would be a 
conviction under 18 U.S.C. section 1503.
  In this case you have much more because, as I pointed out yesterday 
in reference to Betty Currie, Betty Currie was clearly a witness. They 
left that deposition knowing she would be a witness. The Jones 
attorneys went back and immediately worked on issuing a subpoena for 
her because they had to have her because the President asserted her 
name continually through that. The President knew she was going to be a 
witness. He came back and engaged in one conversation where he coached 
her testimony. He tampered with her testimony. It wasn't enough, so 2 
days later he brought her back in again and did the exact same thing. 
The legal question is, As a prospective witness, is she covered under 
the obstruction of justice statute? The answer is, yes, because other 
people go to jail for exactly the same thing.
  But I think we need to take a step back a moment. This U.S. Senate is 
not bound by the strictures of the U.S. Criminal Code. If I came in 
here today and said, ``Well, under the criminal procedures of the land, 
I'm entitled to bring witnesses and I'm entitled to cross-examine, and 
I'm entitled to do this, and we need to follow the criminal procedure 
code,'' you would say, ``No. This is the Senate of the United States.'' 
And you would rightfully say that. You set your own rules in this.
  And the same thing is true with the criminal law of the land. I think 
that we make a criminal case for obstruction of justice that can be 
prosecuted, as other people are in every courtroom in this land. But 
that is not the burden here. The issue is, Is this an impeachable 
offense? And something that is much higher is at stake, and that is the 
public trust, the integrity of our Government, much more than in United 
States v. Shannon. And that is what you are dealing with.
  So we can debate the criminal code all day--and we win all that--but 
we have to talk about the public trust, the integrity of our system. 
And that is what our country needs you to win for them.
  The CHIEF JUSTICE. This question is from Senators Thurmond and 
Bunning to the counsel for the President:

       If there was no case and the White House accepted the 
     results of the justice system, why then did the President pay 
     nearly $1 million to Paula Jones?

  Mr. Counsel RUFF. I say this with all due respect, truly. As I think 
everyone knows in this Chamber, and outside this Chamber, who has 
practiced law, litigated difficult cases, the judgment of a defendant 
to settle a case, to pay whatever sum may be required to settle it, is, 
in all candor, I think, for all of us, not reflective of any belief 
that he was wrong, that the other side was right. It reflects in this 
case, very candidly, a judgment by the President, which he has stated 
publicly, that in the midst of the many matters that he is responsible 
for, including, I must say, this matter, as well as all those matters 
of state on which he spends his time and to which he devotes his 
energy, he could no longer spend any of that time and any of that 
energy on the Jones case.
  I am so hesitant to say this, but I really believe--please take it in 
the spirit it is meant--that to ask whether the settlement of this case 
reflects substantively on the merits of Ms. Jones' claim is not fair. 
The merits of Ms. Jones' claim were decided by Judge Wright. She 
concluded that there were none. And I really do believe that to ask 
whether the President's decision to settle is somehow a reflection on 
the merits, contrary to those reached by Judge Wright, is simply not 
the case.
  The CHIEF JUSTICE. This is a question to the White House counsel from 
Senators Johnson and Leahy:

       A few minutes ago, Manager Hutchinson stated that he would 
     be more confident of obtaining a conviction for obstruction 
     of justice in a court than he is in the Senate. Can that 
     statement be reconciled with the following exchange that 
     occurred on the Sunday program ``This Week'' on January 17, 
     1999, in which Manager Hutchinson was asked, ``On the case 
     that you have against the President on obstruction of 
     justice, not the perjury, would you be confident of a 
     conviction in a criminal court,'' and Manager Hutchinson 
     said, ``No, I would not''?

  Mr. Manager HUTCHINSON. Mr. Chief Justice----
  The CHIEF JUSTICE. It's addressed to the President's--is it the 
President's counsel? It is addressed to the President's counsel.
  Mr. Manager HUTCHINSON. I believe under your ruling yesterday I can't 
object to questions.
  The CHIEF JUSTICE. That is correct.
  Mr. Manager HUTCHINSON. I would----
  Mr. LEVIN. Objection.
  Mr. REID. Objection.
  Mr. LEVIN. I object to this, if he is unable to object, to make an 
objection in any other form.
  The CHIEF JUSTICE. The Parliamentarian advises me that the manager 
may make an objection to the question being answered.
  Mr. REID. Nothing being answered.
  The CHIEF JUSTICE. I have second thoughts, frankly. That ruling is 
based on a very Delphic, almost incomprehensible statement that Salmon 
Chase made during the trial of Andrew Johnson. And I think the correct 
response is that the managers do not have a right to object to a 
question by the Senator. So I rule the objection out of order.
  Mrs. BOXER. Regular order.
  Ms. Counsel MILLS. I just wanted to address, for a second, Manager 
Hutchinson's comments with regard to 1503. And he cited a 1987 case. In 
1995, I think, as we talked a little bit about, and the House managers 
had discussed, Aguilar came down. And in that case the issue was, Was 
there sufficient nexus between the actual conduct of the person 
involved and the proceeding? And in particular, I am just going to read 
to you for 1 minute from the case law.

       The Government argues that respondent ``understood that his 
     false statements would be provided to the grand jury'' and 
     that he made [these] statements . . . to thwart the grand 
     jury investigation and not just the FBI investigation. . . . 
     The Government supports its argument with . . . the 
     transcript . . .

  They go through the discussion that was between the judge and the 
agent in which the judge specifically asked whether or not he was a 
target for the grand jury investigation, and the agent responded:

       There is a grand jury meeting. Convening I guess that's the 
     correct word. . . . [E]vidence will be heard . . . I'm sure 
     on this issue.

  So, in other words, the person making the statement knew at that 
point that there was potentially the possibility that his testimony 
would be presented to the grand jury, and the court

[[Page S945]]

ruled, as I talked to you a little bit about during my presentation 
before, that that was an insufficient nexus for there to prove a 
violation of 1503.
  The CHIEF JUSTICE. This question is from Senators Helms and Stevens 
to the House managers.

       Do you have any comment upon the answer just given by the 
     President's counsel?

  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
  First, I want to thank Ms. Mills for the courtesy she extended to me 
just a moment ago. And in our exchange, and Mr. Chief Justice, what I 
started to state my objection was, was really not to the question at 
that point, but I was just going to make the reference to the 
anticipated answer that the statement on ``This Week with Sam and 
Cokie'' was not exactly a part of this record. We are to be debating 
the facts of this case, and Ms. Mills was kind enough not to go into 
that. I think she was going to make the point that the answer I made 
was in reference to the need to call witnesses; that how confident can 
you be in any case without calling a witness so the jury can hear it?
  Let me go back to what Ms. Mills said. She did cite the United States 
v. Aguilar, and I wish the Chief Justice--since he wrote the opinion--
could give us a lecture on that particular decision. I feel maybe we 
should not be talking about this. But I read that opinion as totally 
consistent with the United States v. Shannon and that the law is clear, 
that if this body were to apply 18 U.S.C., section 1503, that a 
conviction would obtain, but again this is a body gathered for the 
purpose of consideration of an impeachable offense.
  I also yield to Mr. Graham on that point.
  Mr. Manager GRAHAM. This is Saturday at 12:30 and a lot of people are 
probably watching with interest what is going on. Let's talk about the 
law just for a moment in a way that we all can understand when this 
thing is over with.
  It is a long time since I have been in law school, but I liked the 
exchange between the professor and the students because you kind of 
understood what the law was about at the end of the day. Witness 
tampering is designed--the statute is designed to do what? As Senator 
Bumpers and I would say in Arkansas and South Carolina, ``messin' with 
people.'' We can elevate that a little bit and say that the witness 
tampering statutes that we are talking about here are designed to make 
sure we get to the truth. Section 1512 is in the conjunctive, part (B): 
``Whoever knowingly uses intimidation or physical force.''
  That is one thing you don't want to happen here. You never want 
anybody to go up to a potential witness and threaten through force or 
intimidation to tell something that is not true. So that is out of 
bounds. That is illegal.
  Or ``corruptly persuades''--now, what does that mean? There are some 
cases that talk about what that means. That means if the person has an 
intent, an evil intent or an improper purpose to persuade somebody 
without force or intimidation, that that is a crime.
  Or listen to this: ``Engages in misleading conduct toward another 
person with the intent to influence or prevent the testimony of any 
person in an official proceeding.''
  What are we getting to there, ladies and gentlemen? What the law 
says, if you go to a person who likes you, who is your friend, who 
trusts you, and you try to get them to tell a story --through 
misleading them--that is not true, that is a crime.
  The marvelous thing about the law is that it is based in common 
sense. It is very obvious to us we don't want somebody to tell a story 
that is not true. It is also obvious to us that we don't want to take 
personal relationships and misuse them to get false testimony out into 
a courtroom.
  So if you go back to your secretary--who trusts you, who likes you, 
who admires you--and you try to mislead them by telling a scenario that 
is not true, and you believe that they may appear in court one day, 
what you have done is very wrong, because what you have done is you 
have planted the seed of a lie in a way that we say is illegal.
  So, if you believe the President of the United States was not 
refreshing his memory when he told Betty Currie, ``She wanted to have 
sex with me and I couldn't do that. I never touched her, did I, 
Betty?'' If you believe that is not to refresh his memory, if you 
believe that was misleading, and you believe that he had reason to 
believe she was going to be a witness because of his own conduct, then 
he is guilty.
  The CHIEF JUSTICE. This question is from Senator Kerrey of Nebraska 
to the counsel for the President.

       Could you elaborate on your comments about the settlement 
     of the Jones case, focusing on the reality, for example, that 
     corporations in this country routinely settle cases they 
     regard as utterly without merit, simply to spare the costs of 
     defense, public embarrassment, and for other reasons?

  Mr. Counsel RUFF. Mr. Chief Justice, I think far better than I did, 
the Senator from Nebraska has already elaborated on my answer. I think 
all of us who have been involved, either as lawyers or as parties, 
unhappily, in litigation know the burden that it imposes, and one can 
only imagine--I am barely able to--a special burden that it places on a 
President to be immersed in this kind of litigation.
  We take, I think, as a basic understanding in our jurisprudence that, 
as a matter of law, the settlement of a case is not probative of any 
belief on either side about the strengths or weaknesses, but what it 
is, as a matter of law, is probably less relevant than what it is to 
this body or to the American public's perception.
  But underlying the law about what one can do in litigation in using a 
decision to settle is, I think, a commonsense judgment that everybody, 
whether it be a large corporation or individual or the President of the 
United States, makes a judgment about where his or her resources should 
be expended--and I don't mean simply resources in terms of dollars, 
although they are secondly important--but resources in terms of energy, 
time, worry, interference with the day-to-day business that all of us 
have to conduct.
  And I think it is fair to say that it is those factors, those very 
commonsense factors, the ones we would all weigh, in different 
circumstances at different settings if we were caught up in litigation, 
that inform your judgment about what you should or, in my judgment, 
should not take from the fact that the President settled this case.
  The CHIEF JUSTICE. This question is from Senators Nickles, Warner, 
Helms, Inhofe, and Thurmond to counsel for the President.

       Members of the armed services are presently removed from 
     service for improper sexual conduct and/or for perjury. If 
     the President is acquitted by the Senate, would not it result 
     in a lower standard of conduct for the Commander in Chief 
     than the other 1.3 million members of the armed services?

  Mr. Counsel RUFF. Mr. Chief Justice, this, of course, is a question 
legitimately asked but I also think legitimately answered no. We all 
understand entirely what rules are imposed on members of the armed 
services. Indeed, every member of the Federal civil service, every 
member of a private company, when they engage in certain conduct, may 
be sanctioned for it.
  In the military, I understand--as do the Senators who have much 
greater personal and institutional experience with our Armed Forces 
than I--the importance of maintaining due order and discipline in the 
armed services, and also the importance of believing that nothing that 
the Commander in Chief does or says should ever undermine the strength 
of our Armed Forces, their cohesiveness, or their belief in the rules 
and integrity of the rules that govern them.
  But, that said, A, I do not believe, as a matter of what will flow 
from an acquittal of the President, who is, indeed, Commander in Chief, 
that that will in fact undermine the good order and discipline of the 
Army. But if I am wrong in some fashion about that, if my understanding 
of the process is flawed --and it may well be--we, nonetheless, have to 
ask the question which I think is implicit in the question that was put 
to me: Because of the rules that apply to members of the Armed Forces, 
does it follow that because a sergeant, or a lieutenant, or a general, 
or an admiral will suffer in his career, that we must go back to the 
framers who wrote the impeachment clause and say they must have 
expected that the Commander in Chief, the President, would be removed 
for the same conduct? They had an Armed Forces then. Indeed, they were 
probably more intimately involved

[[Page S946]]

with that, having just come through the Revolution, than Presidents and 
leaders of the country have been in the following 210 years. They 
surely understood that there was a constitutional and societal 
difference between the President in his role as Commander in Chief and 
the President in his role as the leader of the country, on the one 
hand, and those to whom rules of discipline had to apply in order to 
secure the strongest and best Armed Forces that we could secure.
  It is, in a sense, I suppose, not an easy answer to give, because 
members of the Armed Forces put their lives on the line, and we want 
them to feel that they are being treated fairly. But at the end of the 
day, it cannot be that the President of the United States is removable 
for conduct that would adversely affect a career of a member of the 
military.
  There may be occasions on which the President engages in such 
horrific conduct that he ought to be removed, and the same would happen 
to an admiral, or a general, or the Chief of Staff of the Joint Chiefs, 
or the highest military member that you can contemplate. But that 
doesn't mean that this conduct is transposed from the world of the 
military into the world of the Constitution in such a way that the 
President, even if he is our Commander in Chief, should be removed from 
office, because I think that judgment would be inconsistent with the 
judgment made by the framers.


                                 RECESS

  Mr. LOTT. Mr. Chief Justice, I suggest that this would be an 
excellent time to take a 1-hour break for lunch.
  There being no objection, at 12:44 p.m., the Senate recessed until 
1:45 p.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Thank you, Mr. Chief Justice.
  Mr. Chief Justice, we are ready momentarily to begin with the 
questioning period again. I believe the first question will come 
through Senator Daschle.
  I do want to say to our colleagues that any Senator is entitled to 
propound a question on both sides, and so we will give you every 
opportunity to do that. Again, it is our intent to go today not later 
than 4 o'clock, and if additional time is needed for questions, it will 
have to go over until Monday. We have some questions that have already 
been propounded that we would like to put to one side or the other, but 
at some point I think we will have a sense that maybe the basic 
questions have been asked.
  So if any Senator on either side feels strongly about a particular 
question, he or she may want to be thinking about how and when they 
insist that it be offered. But I think a lot of ground has been 
covered. I hope that within a reasonable period of time the questions 
that Senators have will be given and we will have a response, and then 
we will make a decision on how to proceed from there.
  I yield, Mr. Chief Justice.
  The CHIEF JUSTICE. This is a question from Senator Bingaman to 
counsel for the President.

       When Samuel Dash resigned as adviser to the independent 
     counsel, he wrote in the letter of resignation that he was 
     doing so because the independent counsel had become an 
     advocate and had ``unlawfully intruded on the power of 
     impeachment which the Constitution gives solely to the 
     House.''
       In using his power to assist one party to the pending 
     impeachment trial before the Senate, do you believe he has 
     unlawfully intruded on the power of the Senate to try 
     impeachments?

  Mr. Counsel RUFF. Mr. Chief Justice, Senators, the independent 
counsel statute gives the independent counsel in some sense almost 
unbounded power to investigate the President and other high officials 
of Government. It does not give him and has never given him unbounded 
power even to the extent that he has become immersed in the impeachment 
proceedings in the House. For the statute itself says not you shall 
become the 436th Member of the House, not that impeachment is vested in 
the independent counsel, but that impeachment is vested in the House 
and trial in the Senate.
  We were, obviously, dismayed at the role that the independent counsel 
chose to follow rather than simply sending information to the House 
that might bear on possible impeachable offenses but, rather, to drive 
his van up to the building and unload unscreened, undiluted boxes of 
information which thereafter made their way, at least in part, into the 
public domain.
  But surely it was a shock to all of us, at least on this side, to 
learn yesterday evening that playing a role in the House proceedings 
had now become a role in this Chamber, that the independent counsel was 
using not only his powers of coercion but calling on the U.S. district 
court to assist him and, in turn, enabling the managers not simply, as 
they would have it, to do a little work product, to do a little meeting 
and greeting, to do a little saying hello and a little chatting with 
someone who may be a witness before this body but, rather, saying to 
this witness: I hold your life in my hands and I'm going to transfer 
that power to the managers for the House of Representatives.
  The managers have said we are engaged in an adversary process here, 
and they themselves have talked long and loud today about letting them 
play out the process that any lawyer would play out preparing for 
trial. Well, no other lawyer that I know of gets to have a prosecutor 
sitting in a room with him and saying to the witness: Talk to these 
people or your immunity deal is gone and you may go to jail.
  Now, we have been accused by Manager Hutchinson and others of always 
talking about process, of always falling back on process. Well, I 
suggest, Senators, that process is what our justice system is all 
about. Process is what we have always relied on to protect everyone 
against the vaunted power of the state in this case; not just the 
managers, but the state embodied in the independent counsel.

  But in this case it is more than just a call for due process, for 
fairness, because it is going to have a direct and immediate impact on 
the facts as we learn them, as they learn them, and most importantly as 
you learn them. Can you imagine--can you imagine what it is going to be 
like for Monica Lewinsky to be sitting in a room with the 13 managers, 
or however many there are, and the independent counsel, and his 
lawyers, knowing the threat that she is under, knowing how she got into 
that room? Can we have any reason to believe that what comes out of 
that process will be the fair, unvarnished truth? Or will she, of 
necessity, be looking over her shoulder and saying I better not put one 
foot wrong because the independent counsel is sitting there watching, 
and he has already told me that this deal is gone if I don't cooperate 
with the House managers.
  Process and truth, they are inextricably linked, but not--not if the 
independent counsel moves to that side of the room and becomes the 
moving force in the development of the truth and the facts as this body 
is entitled to know them.
  Accuse us of talking about process if you will; accuse us, if you 
will, of falling back on process. We do it proudly because process is 
what this is all about, because process leads to truth. But not that 
way.
  The CHIEF JUSTICE. This is a question from Senators Specter, Frist, 
Smith of New Hampshire, Inhofe, Lugar, Brownback, Roth, and Crapo to 
counsel for the President:

       In arguing that an impeachable offense involves only a 
     public duty, what is your best argument that a public duty is 
     not involved in the President's constitutional duty to 
     execute the laws? At a minimum, doesn't the President have a 
     duty not to violate the laws under the constitutional 
     responsibility to execute the laws?

  Mr. Counsel RUFF. It can't be. It can't be that if the President 
violates the law and thus violates his duty faithfully to carry out the 
laws, he is removed from office. Because that would literally encompass 
virtually every law, every regulation, every policy, every guideline 
that you could imagine that he is responsible for carrying out in the 
executive branch. If that were so, it would have been very simple for 
the framers to say the President shall be impeached for treason, 
bribery and failure to carry out his oath faithfully to execute the 
laws. They wrote that. They could have incorporated it into the 
impeachment clause if they had wished, and they chose not to.
  So that if, in fact, you suggest that a failure to faithfully execute 
the laws

[[Page S947]]

inevitably leads to a decision that an impeachable and removable 
offense has been committed, I suggest with all respect that you have 
simply eliminated the impact of the words ``treason, bribery and other 
high crimes and misdemeanors.''
  Now, you may well judge within that setting--that is, within that 
constitutional standard ``other high crimes and misdemeanors''--that 
some particular violation of law warrants removal. But it surely can't 
be, just looking back at what the framers did and what the words 
themselves mean, that any violation, even if you were to find one, must 
lead you to conclude that having therefore violated his responsibility 
to faithfully execute the laws, removal must follow.
  The framers knew what the other parts of the Constitution said, and 
they specifically chose the words they chose, intending that they cover 
only the most egregious violations of the public law and public trust 
that they could conceive of.
  The CHIEF JUSTICE. This is from Senator Graham to counsel for 
President Clinton:

       In the event the Senate determines the removal of the 
     President is not warranted, are there any constitutional 
     impediments to the following action: (1) a formal motion of 
     censure; (2) a motion other than censure incorporating the 
     Senate's acknowledgement and disapproval of the President's 
     conduct; (3) a motion requiring a formal Presidential apology 
     or any other statement accepting the judgment of the Senate; 
     or (4) a motion requiring the President to state that he will 
     not accept a pardon for any previous criminal activities.
       Assuming that one or more of the above actions are 
     constitutional, are there any other serious policy concerns 
     about the advisability of the Senate formally adopting a 
     legislative sanction of the President that falls outside the 
     scope of the constitutional sanction of removal from office?

  Mr. GRAMM addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the Senator from Texas.
  Mr. GRAMM. Mr. President, I would like the record to show that that 
was Senator Graham of Florida. (Laughter.)
  The CHIEF JUSTICE. The record may so show.
  Mr. Counsel RUFF. Senator Gramm, my apologies. I assumed since 
Senator Daschle sent it up it was probably from this side, but I am 
glad you clarified the record.
  That question probably requires much more constitutional learning to 
answer in great detail than I possess, but let me give it a try. And 
the easiest one for me to answer is the fourth part: Would it be 
appropriate for, in some fashion, for the President formally to state 
that he would not accept a pardon?
  I have stated formally on behalf of the President in response to a 
very specific question by the House Judiciary Committee that he would 
not, and, indeed, we have said in this Chamber, and we have said in 
other places, that the President is subject to the rule of law like any 
other citizen and would continue to be on January 21, 2001, and that he 
would submit himself to whatever law and whatever sanction or whatever 
prosecution the law would impose on him. He is prepared to defend 
himself in that forum at any time following the end of his tenure. And 
I committed on his behalf, and I have no doubt that he would so state 
himself, that he would not seek or accept a pardon.
  I will not even begin to tread on the territory that is the Senate's 
jurisdiction and the issues that it takes unto itself, much less give 
it advice about what it is possible or not possible to do, except to 
venture this. I see no constitutional barrier, certainly, to the 
Senate's passing a censure motion in whatever form it chooses--whether 
adopting language from the articles or creating language of its own. We 
might at the end of the day disagree with you about whether the 
language is justified or whether it accurately reflects the facts, but 
there is nothing in the Constitution, I believe, that prevents this 
body from undertaking that task.
  With respect to a formal acknowledgment, there I suppose the 
interplay between the legislative and the executive branch becomes more 
tenuous. But to the extent that whatever the Senate chooses to say in 
such a document needs to be acknowledged or recognized by the 
President, that can be done without trenching on the separation of 
powers in that special uncertain area between the legislative and 
executive branches. I have no doubt that some process can be worked out 
that meets the Senate's needs. I say this all in the sort of vast limbo 
of hypothesis, because obviously I am answering both somewhat off the 
cuff and without knowing what language we are talking about.
  But the core position, as we see it, is that nothing stands in the 
way of this body from voicing its sentiments. Indeed, I have said in 
the House of Representatives that I thought a censure was an 
appropriate response, and the President has said he is prepared to 
accept the censure. I have no doubt, although that was said in the 
context of the proceedings in the House, it surely is applicable as 
well to anything that this body chooses to do.
  The CHIEF JUSTICE. This is a question from Senator Thompson to the 
House managers:

       Do you have any comment on the answer given by the 
     President's counsel with regard to the Office of Independent 
     Counsel?

  Mr. Manager McCOLLUM. Mr. Chief Justice, Senators, thank you for that 
question. It is our judgment--and I think a fair judgment--that we 
should be allowed and are permitted, under any of the rules normal to 
this, to request of the Office of Independent Counsel the opportunity 
to talk to Monica Lewinsky, which we otherwise apparently were not 
going to be able to have as a normal course of preparation.
  It makes me wonder--with all of the complaints that are going on here 
from the White House attorneys about this and their desire not to have 
witnesses--what they are afraid of. Are they afraid of our talking to 
Monica Lewinsky? Are they afraid of the deposition of Monica Lewinsky? 
Are they afraid of what she might say out here? I don't think they 
should be, but they appear to be.
  We are not doing anything abnormal. We are exercising our privileges, 
our rights. If it were a prosecutor and you had a prosecutorial arm, 
which you do in the case of the Independent Counsel Office, that had an 
immunity agreement, as there is in this case, you certainly would not 
hesitate if you had a recalcitrant witness who you needed to call to 
utilize that immunity agreement and have the opportunity to discuss the 
matter with that witness, and you certainly would not hesitate if you 
needed to use that immunity agreement to assure truthful testimony in 
any proceeding that was going on.
  After all, that is the purpose of the immunity agreement. It means 
that the witness is probably much more likely to be telling the truth 
than under any other circumstances, which is why counsels frequently 
argue immunity agreements as a reason why a particular witness is more 
credible than they might otherwise be if it were not for that 
agreement.
  So I think there is an awful lot being said today about our meeting 
that we want to have with Ms. Lewinsky to prepare her as a witness. I 
want to tell you all it is being done, in my judgment, with all due 
respect to those who are doing it, principally because of the concerns 
they don't want us to have that opportunity or they want to cast some 
aspersion or doubt, or whatever.

  We are not about to do anything improper. We can assure you of that. 
We would never do that. We are going to follow regular order and do 
this as good counsels would do in good faith, and in no way would we 
wish to do it otherwise, nor have we. Thank you.
  The CHIEF JUSTICE. This is a question of Senator Baucus to the House 
managers:

       In view of the direct election of the President, his 
     popularity, and short duration of his term, and in view of 
     the fact that, as House Manager Graham stated, ``reasonable 
     people can differ in this case,'' please explain, precisely, 
     how acquitting the President will result in an immediate 
     threat to the stability of our Government.

  Mr. Manager HYDE. Mr. Chief Justice, ladies and gentlemen of the 
Senate, I don't think anyone contends that if the President is 
acquitted that suddenly it is apocalypse now or the Republic will be 
threatened from without or from within. I think erosion can happen very 
slowly and very deliberately. The problem that I have is with this 
office being fulfilled by someone who has a double responsibility.
  The first responsibility is to take care that the laws be faithfully 
executed. He is the only person in the country, in the world, who has 
that

[[Page S948]]

compact with the American people. The other, of course, is his oath to 
preserve, protect and defend the Constitution. He is the national role 
model, he is the man, he is the flagbearer in front of our country. He 
is the person, his office is the person every parent says to their 
little child, ``I hope you grow up and be President of the United 
States some day.'' We do nothing as important as raising our kids, and 
the President is the role model for every kid in the country.
  When you have a President who lies and lies and lies under oath--and 
that is the key phrase, ``under oath.'' I don't care about his private 
life or matters that are not public. But when he takes an oath to tell 
the truth, the whole truth, nothing but the truth and then lies and 
lies and lies, what kind of a lesson is that for our kids and our 
grandkids? What does it do to the rule of law?
  Injustice is a terrible thing. The longer you live, the more you can 
encounter it. Injustice, abuse, oppression, and the law is what 
protects you; the law, having resort to an objective standard of 
morality in action. And when you are sworn to take care that the laws 
are faithfully executed, how do you reconcile the conduct of perjury 
and obstruction of justice with that obligation?
  I have a suggestion. Let's just tear it out of the Constitution. Tear 
out that ``take care to see that the laws are faithfully executed.'' It 
is wrong. It is an example we are setting for millions of kids that if 
the President can do it, you can do it. What do you say to master 
sergeants who have their careers destroyed because they hit on an 
inferior member of the military? We are setting the parameters of 
permissible Presidential conduct for the one office that ought to gleam 
in the sunlight. And the kids, that is what moves me, the kids.

  The CHIEF JUSTICE. This question is from Senators Nickles, Warner, 
Crapo, Helms, Inhofe, and Thurmond to the House managers:

       Would you like to comment on the remarks of Counsel Ruff 
     concerning the impact of an acquittal of the President 
     accused of improper sexual conduct and/or perjury and 
     obstruction on the Armed Forces?

  Mr. Manager BUYER. Mr. Chief Justice, I would like to thank the 
Senators for the question, because I believe it is also insightful.
  The question of double standards or establishing lower standards, I 
believe, is extraordinarily important. The defense asserted--and it is 
hard for me to believe--but they are asking you to set a higher 
standard for judges and a lower standard for a President who nominates 
them to you, asking you--they think that we can set a higher standard 
for law enforcement, yet establish a lower standard for the Chief 
Executive or the chief law enforcement officer that has the duty to 
faithfully see that the laws are executed; set a higher standard for 
military personnel, and then a lower standard for the Commander in 
Chief who must make the painful decisions to send them into battle.
  Now, the precedents in impeachment trials here in the Senate, the 
judgment of the Armed Services Committee and the Senate regarding the 
standards for promotion, have been otherwise than that which Mr. Ruff 
has asserted.
  We must confront the fact that the President is the Commander in 
Chief. And I believe that it is perfectly acceptable of the American 
people to demand of the military the highest standard, which also means 
that those of whom find themselves in positions of responsibility in 
the Pentagon of whom are in civilian leadership must also live by such 
exemplary conduct and standards. The high character of military 
officers is a safeguard of the character of a nation.
  The Senate, who must ratify the officers' promotion list, has 
repeatedly found that anything less than exemplary conduct is therefore 
unworthy of a commission or further promotion. I recall when I first 
came to Congress in 1992, there were many making a big to-do over 
Tailhook. Remember? And it was serious. There are still remnants around 
of Tailhook because there are still those who are screening the 
officers' promotion. If you were within 100 miles of Tailhook, look out 
for your career. That needs to be put to bed.
  Then I was given a duty to ensure that after Aberdeen broke and the 
sexual misconduct in the military--whether it was at Fort Jackson, 
Aberdeen, or at other places--I spent 18 months out on the road to 
ensure that the policies of the military were fair and the treatment of 
equal dignity in the workplace among men and women. We cannot forget 
that.
  You see, we also must recognize and must be candid with the harsh 
reality that the officers and NCOs are human and not without fault, 
folly, and failings. I believe, though, it is the aspirations of high 
ideals that are important for each of us, but more so to the military 
in order to keep the trust and the public faith of the military. You 
see, a soldier, a sailor, an airman or marine is prepared to lay down 
his or her life to defend the Constitution. And it is the devotion and 
the fidelity to the oath without mental reservation that is the epitome 
of character.

  Now, the President is not and should not be subject to the Uniform 
Code of Military Justice. And I concur with Mr. Ruff when he made that 
point. And the President is not an actual member of the military. But 
we have a unique system in the world. We have that civilian control of 
the military, and it works. But we also must recognize and be cognizant 
that the President, however, is at the pinnacle, he is at the top of 
the chain of command. And that is what I learned about, being on the 
road for 18 months, and How do we make corrections? and How do you set 
the proper dignity in the workplace?
  It doesn't matter if it is your own office or, in fact, if you are 
the President as Commander in Chief. Whoever leads you sets the tenor 
of those who must follow. You see, the message is that the military 
personnel do look to the Commander in Chief to set the high standard of 
moral and ethical behavior. The military personnel are required to set 
a high standard of conduct in order to set the example to those they 
lead. Adherence to high standards is the fabric of good order and 
discipline. When military leaders fall short of this ideal, then there 
is confusion and disruption in the ranks. And today many do see a 
double standard. There is a double standard because the Commander in 
Chief has allegedly conducted himself in a manner that would be a 
court-martial offense for military personnel having been alleged of the 
very same thing.
  The President's actions have had an intangible and coercive impact 
upon military personnel. To turn a blind eye and a deaf ear to it would 
be shame on us. The question soldiers and sailors ask is: I took an 
oath to swear to tell the truth. And I also took an oath to uphold the 
Constitution. How can this President take the same oath and not be 
truthful and remain in office? If I were to have done what the 
President did, I would be court-martialed.
  You see, we also have to recognize that each of the services are 
recruiting young people all across the Nation. At boot camp they infuse 
these young people with the moral values of honor, courage and 
commitment, and they're teaching self-restraint, discipline and self-
sacrifice. Military leaders are required to provide a good example to 
those young recruits, yet when they look up the chain of command, all 
the way to the Commander in Chief, they see a double standard at the 
top. Again, it is the President that sets the tone and tenor in the 
military, just as he does for law enforcement.
  I believe the President has violated this sacred trust between the 
leaders and those of whom he was entrusted to lead. I also spoke in my 
presentation that it was the President's self-inflicted wounds that 
have called his own credibility into question not only in his 
decisionmaking process, but with regard to security policies.
  The CHIEF JUSTICE. The Chair has the view that you have answered the 
question.
  Mr. Manager BUYER. Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. This is a question from Senators Torricelli and 
Kohl to the President's counsel:

       At the outset of the House proceedings, a member of the 
     majority, now a manager, stated: ``The solemn duty that 
     confronts us requires that we attain a heroic level of 
     bipartisanship and that we conduct our deliberations in a 
     fair, full and independent manner. . . . The American people 
     deserve a competent, independent, and bipartisan review of 
     the Independent Counsel's report. They must have confidence 
     in the process. Politics must be checked at the door.''

[[Page S949]]

       In evaluating the case against the President, should the 
     Senate take into account: (a) the partisan nature of the 
     proceedings in the House, or (b) the public's ``lack of 
     confidence'' in the proceedings thus far?

  Mr. Counsel KENDALL. Mr. Chief Justice, I think that this body has 
got to take into consideration what brought these articles here, and 
that is the action both of the independent counsel and the House of 
Representatives. I think when fairly considered, when you look at the 
actions of both, you find an absence of fairness and bipartisanship.
  The independent counsel investigated this case for 8 months. It 
developed every bit of evidence it could that was negative, derogatory, 
or prejudicial, and it put them into those five volumes. It did not 
pursue exculpatory leads. It did not follow up evidence that might lead 
to evidence of innocence. And it downplayed, when it came to write the 
referral, significant testimony which was exculpatory or helpful.
  I think the independent counsel's process was really epitomized by 
Ms. Lewinsky's statement that nobody asked her to lie or had promised 
her a job for silence. You see, the independent counsel didn't bring 
out that testimony. In fact, it came out when the independent counsel 
was through examining Ms. Lewinsky in the grand jury. I want to read 
you a very short part of that, page 1161 of the appendix.
  Independent counsel prosecutor says, ``We don't have any further 
questions,'' and a grand juror pipes up, ``Could I ask one?''

       Monica, is there anything that you would like to add to 
     your prior testimony, either today or the last time you were 
     here, or anything that you think needs to be amplified on or 
     clarified? I just want to give you the fullest opportunity.

  Here is what Ms. Lewinsky says:

       I would. I think because of the public nature of how this 
     investigation has been and what the charges aired, that I 
     would just like to say that no one ever asked me to lie and I 
     was never promised a job for my silence. And that I'm sorry. 
     I'm really sorry for everything that's happened.

  Now, we requested the independent counsel, before he sent the 
referral to the House of Representatives, for an opportunity to review 
that. We were denied this.
  I think if you compare what happened here with what happened in 1974 
when Special Prosecutor Jaworski sent a transmission of evidence to the 
House Judiciary Committee, the comparison is very revealing. Then 
Special Prosecutor Jaworski sent only a road map of the evidence, a 
description of what was in the record. Judge Sirica reviewed that at a 
hearing where White House counsel were present. Judge Sirica then said 
it was a fair, impartial summary and transmitted it on to the House 
Judiciary Committee. Here, without review either by the presiding judge 
or the grand jury, a referral was sent to the House that was a one-
sided, unfair prosecutorial summary.
  When the House managers speak of the need for discovery, they have no 
such need. Everything prejudicial that could be found through an 
unlimited budget and seemingly endless investigation has been found and 
put there, tied up with a red ribbon for you.
  In terms of bipartisanship in the House, I think that speaks for 
itself. I don't think this was a bipartisan process. I don't think it 
was a bipartisan result. I think, though, it rests with this body to 
try the case. It is clear under the Constitution that this body has the 
power, the sole power, to try impeachment. The Chief Justice in the 
Nixon case made that very clear.
  I am not going to comment on the independent counsel's assistance to 
the House manager with Ms. Lewinsky. I think that is for you to decide 
whether that is consonant with how you decide the case ought to be 
tried. But I think that the presentation of the articles to this body 
has been neither fair nor bipartisan.

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

       Do you have any comment on the answer just given by the 
     President's counsel?

  Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, I welcome 
this opportunity to fill in a considerable gap in the record.
  Mr. Counsel Kendall said earlier today or perhaps yesterday--it was 
yesterday--``We never had a chance to call witnesses ourselves, to 
examine them, to cross-examine them, to subpoena documentary evidence, 
at no point in this process.''
  On October 5, 1998, the House Judiciary Committee passed House 
Resolution 581 by voice vote, the impeachment inquiry procedure, which 
included the right to call witnesses for the President.
  On October 21, the House Judiciary Committee staff met with Mr. Ruff, 
Mr. Kendall, and Mr. Craig. At that time, the Judiciary Committee staff 
asked the White House to provide any exculpatory information, provide a 
list of any witnesses they wanted to call, without result.
  On November 9, the House Judiciary Committee wrote to Messrs. Ruff, 
Kendall, and Craig and again informed them of the President's right to 
call witnesses.
  On November 19, Independent Counsel Starr testified 12 hours before 
the House Committee on the Judiciary. President's counsel was given the 
opportunity to question the independent counsel. He did not ask a 
single question relating to the facts of the independent counsel's 
allegations against the President. Now, the Democrats have Mr. Kendall, 
they had Abbe Lowell; we had Dave Schippers. That is not an invidious 
comparison.
  On November 25, I wrote a letter to the President asking the 
President, among other things, to provide any exculpatory information 
and inform the committee of any witnesses it wanted to call, without 
success.
  On December 4, two working days before the presentation of the 
President to the Judiciary Committee, counsel for the President 
requested to put on 15 witnesses. The White House was allowed to 
present all 15 witnesses. Not a single one of those was a fact witness.
  Lastly, I quote from a letter from Mr. Kendall to Mr. Bittman. It is 
in volume 3, part 2 of 2, page 2326.

       That you now request we submit exculpatory evidence is 
     perfectly consonant with the occasionally ``Alice in 
     Wonderland'' nature of this whole enterprise. I am not aware 
     of anything that the President needs to exculpate.

  The CHIEF JUSTICE. This question is from Senator Leahy to the White 
House counsel:

       The managers argued in response to a previous question that 
     would set a bad example for the military to acquit the 
     President. Given that argument, how could you reconcile the 
     statement by Manager Hyde after Caspar Weinberger was 
     pardoned by President Bush of multiple criminal violations, 
     including perjury, that, ``I'm glad the President had the 
     chutzpa to do it. The prosecution of Weinberger was political 
     in nature, an effort to get at Ronald Reagan. I just wish us 
     out of this mess, the 6 years and this $30 or $40 million 
     that has been spent by independent counsel Lawrence E. 
     Walsh''?

  Mr. Counsel RUFF. The question, in virtually every respect, speaks 
for itself.
  But I would make this point because I think it fleshes out a bit my 
earlier answer and responds in some fashion to the argument made by the 
managers on this very issue. I was probably too lawyerly, as is my 
wont, in responding to the earlier question on this issue by Senators 
Warner and Thurmond, because I think the one point that needs to be 
made in the context of Senator Leahy's question which goes to the 
leadership of the Secretary of Defense and the issue of what it means 
to undertake the removal of a President, the distinction that I think 
we all need to hold on to that I probably glided over too rapidly in my 
earlier answer, is that the President of the United States is elected 
by the people of the United States.
  He appoints the Secretary of Defense; he appoints the officers in the 
military; he appoints the judges. And the Senate plays a role in that 
process by approving his choices, or occasionally not approving his 
choices. But there is only one person who is put in his job with the 
voice of the people, and however we may be concerned, as rightly we 
should, if that person oversteps the bounds either of his office or his 
personal conduct, to say that there is some one-to-one, or any other 
number you can think of, comparison between the impact of enforcing the 
law on those civilian and military personnel who serve our country and 
the very different question of whether the voice of the people will be 
stilled by removing the President is the point on which I think this 
body needs to focus.
  The CHIEF JUSTICE. This question is from Senators Kyl and Mack to 
counsel for the President:


[[Page S950]]


       Mr. Ruff said President Clinton was never asked in the 
     grand jury whether everything he testified to in the Jones 
     deposition was true. If he were asked, would he say it was 
     all true? Would the President be willing to answer an 
     interrogatory from the Senate asking that question?

  Mr. Counsel CRAIG. Senator, it is true that he testified that he 
tried to be truthful in the Jones deposition, that it was his purpose 
to be accurate in the Jones deposition. He tried to navigate his way 
through a minefield without violating the law, and believes that he 
did. There is no statement in that testimony in the grand jury that 
reaffirms, ratifies, and confirms all of his testimony in the Jones 
deposition.
  Now, we would be happy to take questions and get responses to you, 
consult the President, if you would like to submit them.
  The CHIEF JUSTICE. This is a question from Senator Murray to the 
White House counsel:

       Has Ms. Lewinsky ever claimed that she was sexually 
     harassed by the President?

  Mr. Counsel KENDALL. Mr. Chief Justice, Ms. Lewinsky has made no such 
claim. What happened between the President and her was improper, but it 
was consensual. To say that does not excuse it or sugarcoat it or 
justify it, but it does, I think, put it in the proper context. She has 
never claimed that she has any evidence at all relevant to sexual 
harassment by the President. When the President--and I went through 
this on Thursday in respect to the obstruction of justice allegation, 
about the President stating that she could file an affidavit. The 
President and Ms. Lewinsky reasonably believe that she could have filed 
a limited but truthful affidavit.
  And I think you have to look to the fact that the Jones case was not 
a class action. It was a suit only about what Ms. Jones claimed 
happened in May 1991 in a Little Rock hotel room. The December 11 
ruling on discovery was a ruling not only on admissibility, but 
discovery. The President believed that an affidavit--a truthful 
affidavit--might be successful--not that it would, but that it might 
be.
  Now, in filing such an affidavit, in preparing it, no particular form 
was necessary. There was nothing to dictate what had to go in and what 
had to go out of it. There were many witnesses on the witness list. The 
end of discovery was approaching, and there was at least some chance, 
they thought, that a factual affidavit, which was limited, might 
accomplish the purpose. And I think this is confirmed by the fact that 
when Judge Wright considered whether to order Ms. Lewinsky's 
deposition, she issued a ruling on January 29 saying that 
the deposition would not go forward because evidence from Ms. Lewinsky 
would not be admissible at the Paula Jones trial because it was both 
irrelevant to the court allegations and it was inadmissible as 
extrinsic evidence of other facts.

  So I think that Ms. Lewinsky had nothing whatsoever to offer on the 
critical issue in the Paula Jones case, which was an issue of sexual 
harassment.
  The CHIEF JUSTICE. This is a question by Senator Shelby to the House 
managers:

       Would a verdict of not guilty be a stronger message of 
     vindication for the President than a motion to dismiss, or, 
     in the alternative, a motion to adjourn? And what are the 
     constitutional implications, if any, if a motion to dismiss 
     prevailed, short of concluding the trial?

  Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, there are 
various options. It is really a misdirected question, if I may say, to 
ask us to suggest the consequences of solutions to this dilemma that we 
are in. I think the beauty--and that is not the word--I think the 
advantage of proceeding with the articles of impeachment is it is 
consonant with the Constitution. It is simple; it is clean: either 
guilty or not guilty.
  The consequences of that verdict, of course, are up to any individual 
who casts a vote. Now, I have heard the word ``censure'' sometime 
before. You gentlemen and ladies do anything you want to do. It is your 
power, it is your authority, it is in your yard, but you have to deal 
with the Constitution, no matter what you do.
  You have a problem of a bill of attainder, a problem of the 
separation of powers, and you have a problem that any censure, to be 
meaningful, has to at least damage the President's reputation; and that 
becomes, in my judgment, a bill of attainder, but that, again, is up to 
you. The consequences, I don't think, will harm us, whatever you do. We 
have done our best. We have lived up to our responsibility under the 
Constitution, and all we ask is that you live up to your 
responsibilities under the Constitution and give us a trial. I am sure 
you will.
  The CHIEF JUSTICE. This is a question to the President's counsel from 
Senator Levin:

       Monica Lewinsky has explicitly said in her handwritten 
     proffer that ``no one encouraged'' her to lie. Yet, House 
     Manager Asa Hutchinson claimed to the Senate, using 
     inferences, that Ms. Lewinsky was ``encouraged'' to lie. Do 
     the House managers argue that such inferences are as credible 
     as Ms. Lewinsky's direct testimony to the contrary?

  Mr. Counsel RUFF. I think Senator Levin's question goes to the heart 
of much of what we have been saying for the last few days. If, in fact, 
you look at the five volumes stacked up in front of my colleague, Mr. 
Kendall, you will see Ms. Lewinsky say not just once, but many times, 
in essence: I was never told to, never encouraged to lie, never traded 
an affidavit for a job, never did any of the things that lie at the 
very heart of the managers' case. And so what do we have, then? We have 
the managers trying to snatch a bit of evidence here, a bit of 
speculation there, or a bit of extrapolation over there, and say, well, 
she really didn't mean it when she said several times quite directly, 
``Nobody ever told me or encouraged me to lie.''

  It is possible, of course, whenever one deals with circumstantial 
evidence, to make reasonable leaps from that evidence to some viable 
conclusion. But I think most courts that we are familiar with--and 
those of you who practice law are familiar with--would have a good deal 
of difficulty in concluding that if I take a little bit here and a 
little bit there and a little bit over there, pull them all together 
into some vast speculation about what was really in someone's mind, and 
on the other side I have the person saying what is in her mind and 
saying the opposite, I don't think that case would ever get to the 
jury.
  And maybe it is one of the things that worries me just a little bit 
about the normal, everyday--we do it all the time in conference between 
the managers and the independent counsel and Ms. Lewinsky--that maybe 
in that setting, to the independent counsel gently patting Ms. Lewinsky 
on the back and telling her it is time to cooperate, maybe the message 
will become closer to their side and their speculation, don't stay 
where you were, which is what you told the grand jury, the FBI, and us 
under oath and not under oath on multiple occasions, which is, indeed, 
``Nobody told me to, nobody encouraged me to lie.''
  The CHIEF JUSTICE. This is a question from Senator Bond to the House 
managers:

       When Ms. Mills described the President's testimony before 
     the Jones grand jury, she said the President was 
     ``surprised'' by questions about Ms. Lewinsky. What evidence 
     is there of the President's knowledge that Lewinsky questions 
     would be asked? Is there evidence that he knew in advance the 
     details of the Lewinsky affidavit which his counsel presented 
     at the Jones deposition?

  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
  There are numerous evidences in the record to show that the President 
was not surprised about the questions pertaining to Monica Lewinsky at 
the January 17 deposition. First of all, in regard to the affidavit 
testimony of Monica Lewinsky--I believe it was January 6--5th or 6th--
is that she discussed that with the President, signing that affidavit, 
and the content of the affidavit. That is whenever he made his 
statement, ``I don't need to see it. I have seen 15 of them.''
  Again, we don't know what he is referring to in reference to that 
``15.'' But clearly, according to Monica Lewinsky's testimony, she went 
over the contents of that, even though she might not have had it in 
hand, with the President.
  Also, circumstantially, there is a conversation between Mr. Jordan 
and the President during this time.
  But in addition, let me just recall something I made in my 
presentation--that a few days before the President's deposition 
testimony, that it was Michael Isikoff of a national publication

[[Page S951]]

called Betty Currie and asked about courier records on the gifts. This 
startled Betty Currie, obviously, because the gifts at that point were 
under her bed. As she recalled, she probably told the President that. 
And then second, she went to see Vernon Jordan about that issue.
  All of that leads you to believe, clearly, that the President fully 
knew that when he went into the deposition on January 17, that he would 
be asked time and time again about the specifics of his relationship 
with Monica Lewinsky.

  So I think that addresses part of that question.
  Let me remark on what Mr. Ruff just said--I am just constantly 
amazed--about our effort to interview witnesses, because yesterday Mr. 
Ruff--I believe it was; it might have been Mr. Kendall; excuse me if I 
have gotten the attribution wrong--but criticized us, saying they want 
to call witnesses but they have no clue what these witnesses would say. 
Do you recall that? That was the argument yesterday. And so, if we make 
an effort to determine what these witnesses would say, then we are 
criticized for trying to find out what they would say.
  So I think that again it is more convenient to talk about what the 
managers are doing, what the process is, rather than the facts of 
obstruction.
  The CHIEF JUSTICE. This is a question to the White House counsel from 
Senator Kennedy:

       Would you please respond to Manager Hyde's suggestion that 
     an acquittal would send a bad message to the children of the 
     country, and to Manager Hyde's statements regarding the 
     fairness of the process in the House of Representatives?

  Mr. Counsel CRAIG. Mr. Chief Justice, thank you for that question.
  Children--what do we tell the children? Well, ladies and gentlemen of 
the Senate, that is not an academic question for me and for my wife. I 
assume that is the case for many, many families all over this country. 
We happen to have quite a few children, and they are very young; they 
are under 12. And we talk about what is going on here. We talk about 
how important it is to tell the truth, and we talk about how wrong it 
was for the President of the United States not to tell the truth. And 
we think that we have learned a lot by going through that process. We 
have talked about what President Clinton did and why it was wrong.
  With all due respect to the chairman of the House Judiciary 
Committee, I and my wife--and I don't think many parents when they 
raise their children rely every day on messages or resolutions from the 
Congress of the United States to tell them that it is important to 
teach children the importance of truth telling.
  I am a little bit disappointed in the inference of the argument that 
those of us who oppose impeachment, for the reasons that you 
understand, somehow are sending a message that it is OK to kids not to 
tell the truth. I am a little bit disappointed in that argument, 
because I don't think that is the way the parents of this country feel. 
That is certainly not the way I feel. And I don't believe that 
impeachment is a question of what you tell your children about truth 
telling. Of course you tell your children to tell the truth. Of course 
you tell your children the difference between right and wrong. I am 
surprised that it is an issue here.
  The second part of your question, Senator: I went through that House 
of Representatives experience, and I must say that I was disappointed 
in it, because we had been promised bipartisanship. When the Office of 
Independent Counsel sent its referral to the House of Representatives, 
White House counsel did not have access to that document before it was 
released to the world. When the Office of Independent Counsel sent its 
60,000 pages, 19 boxes of evidence, to the House of Representatives, we 
were not given access, the way Members of the Judiciary Committee were, 
to all that material. We were given access to a very limited amount of 
material in the course of that process. In fact, much of that material 
we never had access to on behalf of the President.
  We were disappointed that there was no actual discussion of the 
constitutional standards for impeachment before they went forward to 
vote on an impeachment inquiry. We thought that was the cart before the 
horse.
  We were disappointed and we regretted that grand jury materials 
provided with promises of confidentiality were dumped into the public 
with salacious material, unfiltered by the House of Representatives and 
the Judiciary Committee, and we saw party line vote after party line 
vote after party line vote over and over and over again in the 
Judiciary Committee. We were disappointed that the depositions went 
forward without our participation. We were disappointed there was no 
definition of the scope of the inquiry. We were disappointed that there 
was no term of time, no limitation on either the scope or the time of 
this inquiry. And we were disappointed that there was no adequate 
notice of the charges.
  There were two events that happened near the end of this process that 
I think were particularly disappointing to us. One was that while the 
debate was underway on the House floor, Members of the House of 
Representatives were taken into the evidence room and shown evidence 
that was not in this record, that had not been included in the 
discussion in the House Judiciary Committee, that had never been shown 
to counsel for the President, that was not in the referral and became a 
factor in the decisionmaking at least of some Members of the House--
unfairly so, I think.
  And finally, we were disappointed that the Members of the House of 
Representatives were denied the right and the opportunity to vote for 
censure. They were promised the right to vote their conscience. They 
were told they could vote their conscience. And if they had been given 
that right to vote their conscience, we may not be here today. We might 
have had the resolution of censure and this thing might have been 
resolved, and that was the greatest disappointment of all.
  Thank you.
  The CHIEF JUSTICE. This is a question from Senators Bennett, 
Brownback, Campbell, Hagel, Roth, Specter and McConnell to the House 
managers:

       Would each of the managers who have been prosecutors prior 
     to being elected to the House of Representatives please state 
     briefly whether he believes he would have sought an 
     indictment and obtained a conviction of an individual who had 
     engaged in the conduct of which the President is accused?

  Mr. Manager BRYANT. Mr. Chief Justice, I know there are several, 
probably not only at our table, but all across this Senate, who have 
had some experience somewhere in prosecution of cases. I would just 
briefly say that--and I think it has probably been said very well today 
more eloquently than I will say it, not only from some of the people on 
our side, but even some of the people on the President's side have 
talked about this same concept of justice and the rule of law--it is so 
important in our system of justice that the American people have 
confidence in that.
  And one of the ways that I found in my experience that confidence 
sometimes suffered were phone calls that occasionally you would receive 
where there had been an allegation that someone in an elected office or 
some public official in particular had, allegedly again, committed a 
crime or perhaps been charged with a crime with allegations of coverup 
because of who that person was--there was not equal justice out there, 
people were being treated differently and specially. And that happens, 
that comes with our territory. We are very visible people. Certainly 
the President of the United States is the most visible of us.
  As I said in my opening remarks, he is a role model for many people. 
And certainly when these kinds of allegations come up against the 
President, people raise these kinds of thoughts and complaints.
  As a prosecutor, I would find this type of charge particularly of 
concern not only because of the perjury, which is so important because, 
as I said earlier, too, truth underpins our whole system, but I find it 
equally compelling as a prosecutor that a person of this visibility, of 
this responsibility not only commits a crime himself, but he brings 
someone else into that. He ensnares another person, actually other 
people into this, the coverup, the obstruction part--Monica Lewinsky, 
Betty Currie, Vernon Jordan, all the White House people that we have 
talked about. He brings other people into this and causes other people 
to

[[Page S952]]

commit crimes. I would view that even more seriously because of the 
fact that he made other people commit types of crimes. And because of 
that, I think as a prosecutor, were this another person, a John Doe of 
some visibility, a local district attorney, a local mayor or someone 
like that, there would be no doubt that the allegations would have to 
go to court.
  And I might add in line with this that we have heard of this 
selecting the President out of this process by saying, well, we should 
not consider him like we would a Federal judge or like a general that 
we are talking about maybe promoting to head the Joint Chiefs of Staff 
or a captain for promotion to major or really anyone else here. It 
almost seems that--yes, he is different, but it almost seems that we 
want to treat him like a king because he is the only person we have got 
here, and because he is the only one, we can't look at him like a 
thousand judges or 200 generals or other public officials.
  I think that is a fallacious argument. If the facts are there, no 
matter if this man is the President, to me that is what the 
Constitution is about. I think they set up this process to avoid a king 
and a kingdom.
  I will yield time to Mr. McCollum. 
  Mr. Manager McCOLLUM. I will be much briefer in answering that 
question, Mr. Chief Justice.
  I served as a military judge advocate for 4 years on active duty, 20 
more years in the Reserves. I was a prosecutor, defense attorney and 
military judge. I think this is a very compelling case on the evidence. 
I would never hesitate to take this to trial if I were prosecuting the 
crimes of perjury, obstruction of justice, or any of the military 
offenses that might be included in here. But just on the criminal 
charges which are in the UCMJ, I would certainly do so if given the 
opportunity for all the reasons and then some that Mr. Bryant gave.
  Mr. Manager BARR. Mr. Chief Justice, to me this is not a hypothetical 
question in any sense of the word. As a United States attorney under 
two Presidents, I had the opportunity not only to contemplate bringing 
such cases based on the evidence and the law but actually having the 
responsibility of carrying those cases out and prosecuting them, 
including a case that probably cost me a primary election in the 
Republican Party for prosecuting a Member of Congress for precisely the 
activity which brings us here today; that is, perjury, misleading a 
grand jury.
  So the answer to the question, Mr. Majority Leader, is not only yes 
but absolutely yes.
  The CHIEF JUSTICE. Mr. Hutchinson.
  Mr. Manager HUTCHINSON. I know we have run out of time. The facts and 
law support it, and the answer is yes. And may I add that Mr. Rogan who 
has certainly prosecuted, Mr. Lindsey Graham, and Mr. Gekas, all 
would--if you would like to join in that. Otherwise, we all would 
affirm that the answer is yes.
  The CHIEF JUSTICE. This is a question to the President's counsel from 
Senators Boxer and Johnson.

       The managers repeatedly assert that if the Senate acquits 
     President Clinton, the Senate will be making the statement 
     that the President of the United States should be held above 
     the law. If, as the managers concede, President Clinton may 
     be held accountable in court for the charges alleged in the 
     House articles regardless of the outcome of the Senate trial, 
     how could a Senate vote to acquit the President be 
     characterized as a vote to place him above the law?

  Mr. Counsel RUFF. I suppose the one quote that has been heard most 
often throughout these proceedings in the House and in this body is 
Theodore Roosevelt's, and I won't repeat it except to go to the heart 
of this question. The fact that we are having this trial in this 
Chamber, the fact that we had an impeachment proceeding in the House, 
is itself part of our rule of law. The President is immersed in the 
application of the rule of law at this very moment. And the rule of 
law, as I think my colleague, Ms. Mills, said, is neither a sword nor a 
shield, depending on your perspective. We are all subject to it and we 
live with its outcome, if it is fair and is consistent with the system 
of justice that we have developed in the last 210 years.
  And, so, the verdict here, if it is ``not guilty'' as I trust it will 
be, or if this trial is ended appropriately through some other legal 
motion or mechanism, as long as it is done within the rule of law, will 
have met all of our obligations. And most importantly, it will have 
ensured that the President is treated neither above nor below.
  But certainly the one issue that is raised in this question is 
important to focus on, because this is not a situation in which the 
President walks away scot-free no matter what happens, not to mention 
the personal pain and the pain that has been suffered in going through 
this process. The President has said, and I have said on his behalf, 
that he will not use his powers, or ask anyone else to use their 
powers, to protect him against the application of the rule of law. 
Moreover, just in case it has slipped anyone's mind--and it has 
occasionally been misstated in other forums--the statute that has 
allowed the independent counsel to pursue the President for the last 4-
plus years specifically provides that he retains jurisdiction over the 
President for a year after the President has left office.
  So there can be no argument that, oh, this will just fall into the 
cracks, or this will disappear into the ether somewhere. The President 
will be at risk. We trust that reasonable judgments will be made and a 
determination will be reached that it is not appropriate to pursue him. 
But that, too, will be pursued under the rule of law to which he is 
subject.
  The CHIEF JUSTICE. This is a question from Senators Campbell, Hagel 
and Specter to the House managers:

       White House counsel have several times asserted that the 
     grand jury perjury charge is just a ``he says, she says'' 
     case and that we cannot consider corroborating witnesses you 
     cite. What is it about the President's grand jury testimony 
     that convinces you he should be removed from office?

  Mr. Manager McCOLLUM. Mr. Chief Justice, that question goes to the 
heart of what we are here about today. We have had a great deal of 
discussion about a lot of peripheral questions and issues, but the fact 
of the matter is, the simplest portion of this deals with grand jury 
perjury, and I assume the question principally is directed to the first 
of four points under the grand jury perjury article, because, for 
example, the second point with respect to the President having the goal 
or the intent of being truthful--which he said he did in the grand jury 
in the Jones deposition--there isn't a ``he says, she says'' question.
  That is just very simple. The President lied multiple times in that 
civil deposition, and if he said in the grand jury to the grand jurors, 
``My goal was to be truthful,'' it is pretty self-evident that that was 
a lie and he perjured himself. So that is not a ``he says, she says.''
  But the question that the counsel over here has tried to bring up 
several times, saying the part with respect particularly to Monica 
Lewinsky saying that the President touched her in certain parts of her 
body which would have been covered by the Jones definition of sexual 
relations, and the President who said explicitly in his grand jury 
testimony, ``I didn't touch those parts,'' and, ``Yes, I agree that 
would have been and is part of the definition of sexual relations in 
the Jones case''--that is, whether you believe her or him, and they say 
that is a ``he says, she says,'' and it is not.
  But even if it were, you could listen to it and accept it. I think 
there is some confusion about the law. The law of grand jury perjury 
does not require two witnesses. Nor does it require the corroborating 
testimony of anybody else. It does not. That is why, in 1970, it was 
changed, and most prosecutions today for perjury, including people who 
are in Federal prison today for perjury in civil cases for lying about 
matters related to sex--and there are several, a couple of whom 
testified before us in the Judiciary Committee during our process and 
hearings--are based upon that 1970 law that does not require any 
corroboration.
  In this case, you have Monica Lewinsky, who is a very credible 
witness by other reasons, so that you don't even have to get to those 
corroborating witnesses on those points. No. 1, she was under immunity 
under the threat of prosecution when she testified that way. No. 2, she 
has consistent statements throughout, many times over. She didn't say 
she had sexual intercourse with him. She could have made that up, but 
she didn't. Everything she says is believable about that portion of it. 
And third, and not

[[Page S953]]

last in all of this, is that she did make very contemporaneous 
statements to at least six other people who were her friends and 
counselors, describing in detail exactly the same thing she testified 
to under oath before the grand jury in this respect.

  Now they say, the counselors here, you can't consider that under the 
Federal Rules of Evidence because that is, presumably, hearsay. Well, 
there are at least three exceptions to that hearsay rule which could be 
brought out in a courtroom. They have gone about trying to carefully 
say we have never said that Monica Lewinsky lied.
  I remember, I think it was Mr. Kendall or maybe it was Mr. Craig up 
there a little earlier, saying when asked that question, ``Did she lie 
in this instance or in any other?'' and they say it is just a different 
version of the truth. If she is saying it as explicitly as she is about 
this nine times or four times or whatever, and the President is saying 
I never did that, I don't see how they can fudge around, challenging 
her truthfulness and credibility.
  That is what they have been doing. And in any courtroom I have ever 
been in, once that has occurred you can certainly bring in her prior 
consistent statements, and you don't even have to go with the rules of 
evidence on this. You are not bound by those rules of evidence. And 
common sense says she had no motive to be lying to her friends in those 
numerous telephone conversations or her meetings with her counselors 
when she described in detail these things the President says he didn't 
do, because all of those statements occurred, all of those discussions 
occurred before she ever was knowingly on a witness list or likely to 
have to testify in any other way.
  She is very credible. Those prior consistent statements are very 
believable, and I submit to you they would be admissible in a court in 
the kind of contest that would be involved in a situation like this. It 
goes to the very heart of what we are here about--grand jury perjury, 
the simplest, clearest one. The President lied. Monica Lewinsky told 
the truth about it. And it is profound and it is important and it is 
critical to this case. And that is the principal one of the perjuries 
that we have been drawing your attention to because it is so clear. 
Thank you.
  The CHIEF JUSTICE. This is a question from Senator Dorgan to counsel 
for the President:

       How can the House claim that its function is accusatory 
     only, when the articles it voted call for the President's 
     removal?

  Mr. Counsel RUFF. This, of course, takes us back to the very heart of 
the argument that raged for a small time here yesterday and on previous 
days, the notion that the House of Representatives viewed itself during 
the month of December as merely--I won't even say that it rose in their 
mind to the level of an accusatory body that we would think of when we 
think of the grand jury, but to a body whose job it was, as one of the 
managers said at one point, simply to find probable cause to believe 
that the President had committed these acts.
  Perhaps there has been some extraordinary transposition from the mood 
and the tenor of the comments made during those days when the Judiciary 
Committee was doing its work to the days when these managers have 
appeared in the well of the Senate, something that has transformed the 
mere probable cause screening finding that they allegedly viewed as the 
role of the House and the Judiciary Committee into the certainty that 
you hear today.
  It is a good question, as to how, then, given the role they saw for 
themselves, they could go so far, not only to seek the removal of the 
President but, indeed, to add in all their prosecutorial vigor 
something that has never been sought before, a bar against holding any 
future office, at the level of certainty that they must have achieved 
given the standard that they held themselves to. What happened between 
December 19 and today that allows these managers to come before you not 
saying, ``Well, we were certain then and we're more certain now,'' or 
``We only found probable cause back in 1998, but in 1999 we are 
sufficiently certain that we ought to shut down the public will as 
expressed in the elections of 1996.''

  I haven't yet found an answer to that question.
  The CHIEF JUSTICE. This question is from Senators Bond, Brownback, 
Campbell, Hagel, Lugar, Hutchison of Texas, Roth and Stevens. It is 
directed to the House managers:

       After everything you have heard over the last several weeks 
     from the President's counsel, do you still believe that the 
     facts support the charges of obstruction of justice alleged 
     in the articles of impeachment? Specifically, what 
     allegations of improper conduct has the President's counsel 
     failed to undermine?

  The question is also from Senators Specter and McConnell.
  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. First of all, 
why is obstruction of justice important to begin with? I think back on 
an opportunity I had at a hearing once to question a member of the 
Colombian drug cartel. I asked him: ``What is the greatest weapon that 
law enforcement has that you fear?''
  His answer was very quickly, ``Extradition.''
  I said, ``Explain. Why is extradition feared?''
  He said, ``Because in Colombia, you can fix the system, but in 
America you can't.''
  That is why I think the obstruction of justice charge is so important 
to the administration of justice. Money, position, power does not 
corrupt, should not corrupt the administration of justice.
  The question is, Where has the President attacked, counselors 
attacked credibly the allegations of obstruction? The first one is that 
the President personally encouraged a witness, Monica Lewinsky, to lie. 
This is on December 17 at 2 a.m. in the morning when the President 
calls Monica to tell her that she is a witness on the list--2 a.m. in 
the morning. At that time, of course, she is nervous, she is a witness 
and asked, ``Well, what am I going to say?'' And the President offers, 
according to Monica Lewinsky, you can always say you came to see Betty 
or you came to deliver papers.
  The President's counselor attacked this by saying, ``Well, remember 
what Monica said, `I was never told to lie.' '' I refer you to a Tenth 
Circuit case, United States v. Tranakos, Tenth Circuit, 1990. The law 
is that the request to lie need not be a direct statement. As the court 
held:

       The statute prohibits elliptical suggestions as much as it 
     does direct commands.

  That is common sense. That is logic. That is what a jury applies--
common sense. And here, of course, in this case, Monica Lewinsky 
testified that she was told, in essence, to lie. The President didn't 
say, ``Monica, I need you to go in and lie for me.'' He told her the 
cover story in a legal context that she could use that would cover for 
him that, in essence, would be a lie. We all know that is what it is.
  Of course, the President says--well, he denies that. Of course, he 
said, I never told her to use the cover stories in a legal context, 
directly in conflict, but clearly the President's counselors have not 
attacked that obstruction of justice.
  The second one is the jobs and the false affidavit. They say there is 
absolutely no connection in these two, none whatsoever. Of course, I 
pointed out the testimony of Vernon Jordan who testified it doesn't 
take an Einstein to know that whenever he found out she was a witness, 
she was under subpoena, that the subpoena changed the circumstances. 
That is the testimony of Vernon Jordan. They say there is no 
connection. Vernon Jordan, the President's friend, says the 
circumstances change whenever you are talking about getting a job with 
somebody who is also under subpoena in a case that is very important to 
the President of the United States.
  Of course, Vernon Jordan also indicated the President's personal 
involvement when he testified before the grand jury in June. He said he 
was interested in this matter: ``He''--referring to the President--
``was the source of it coming to my attention in the first place.''
  He further testified: ``The President asked me to get Monica Lewinsky 
a job.''
  The President was personally involved in the obtaining of a job. He 
was personally concerned about the false affidavit, and Vernon Jordan 
acknowledges that when those are combined, the circumstances are 
different.
  The third area of obstruction is tampering with the witness, Betty 
Currie,

[[Page S954]]

on January 18 and January 20 when the questions were posed after the 
deposition. The President's counselor challenged this and said, Well, 
she wasn't a witness. Even the Jones lawyers never had any clue that 
she was going to be a witness in this case. The President couldn't know 
that she was going to be a witness.

  They hoped that we would never find the subpoena, because Mr. Ruff 
made that statement early on, which he very professionally expressed 
regret that he made that misrepresentation, but we found the subpoena. 
We found the subpoena that was actually issued a few days after the 
deposition for Betty Currie. She was a witness; she was not just a 
prospective witness. She was there, she had to be ready to go and the 
President knew this and the Jones lawyer knew it. So that stands. The 
pillar of obstruction stands.
  The false statements to the grand jury--that has been covered. There 
has never been any holes that have been poked into that, but it was to 
continue the coverup of the false statements that were made in the 
civil rights case.
  Another area of obstruction was December 28 when the gifts were 
retrieved, and this has been challenged. I will admit, as I always 
have, that there is a dispute in the testimony. But I believe the case 
is made through the circumstances, the motivation, the testimony of 
Monica Lewinsky as to what Betty Currie said when she called and the 
corroborating evidence. I don't believe they have poked a hole in that. 
I believe it stands. We would like to hear the witnesses to make you 
feel more comfortable in resolving that conflict and determine the 
credibility of those witnesses.
  But the gifts that were subpoenaed were evidence in a trial; they 
were needed in a civil rights case. The President knew they were under 
subpoena; he had the most to gain, and they were retrieved. And I 
believe the testimony indicates that it was based upon the actions of 
Betty Currie that would have been directed by the President.
  There are other areas of obstruction, including the President 
allowing his attorney, Robert Bennett, to make false representations to 
the Federal district judge in the deposition. The President's defense 
is that there is no proof whatsoever that he was paying any attention. 
We offered the videotape that shows he is believed to be looking at the 
attorney, but we would offer a witness in that regard to show that he 
was attentive. That is simply something that can be substantiated.
  We believe that you can evaluate that, that he was paying attention, 
but that is an element of obstruction because he was allowing his 
attorney to make a false representation to the court that was totally 
untrue, that would aid in the coverup and that was presented.
  The CHIEF JUSTICE. Mr. Hutchinson, I think you have answered the 
question.
  Mr. Manager HUTCHINSON. I thank the Chief Justice.
  The CHIEF JUSTICE. This is a question from Senator Levin to counsel 
for the White House:

       In their brief to the Senate, the House managers said that 
     there was ``no urgency'' to help Ms. Lewinsky until December 
     11, 1997, and that on that day ``sudden interest was 
     inspired'' by a court order, which the House managers had 
     represented was issued in the morning of December 11, before 
     the Vernon Jordan/Monica Lewinsky meeting that afternoon.
       It took some doing yesterday to get the House managers to 
     finally acknowledge that the court order was not issued in 
     the morning, but in the afternoon of December 11. Why were 
     the House managers so reluctant to make that acknowledgment?

  Mr. Counsel KENDALL. Mr. Chief Justice, well, I think they were 
reluctant to make the acknowledgement because they were in cement due 
to their trial brief, which at page 20, as the question indicates, 
said, as to this particular time period after the December 6 meeting, 
``There was obviously''--there was obviously--``still no urgency to 
help Ms. Lewinsky.'' They thought that they had a chronology that was 
consistent with the inference of causation. But when you look at the 
true time of the events, that dissolves.
  Now, Mr. Manager Hutchinson used a word repeatedly, a phrase I would 
like to call your attention to, as he was summarizing the evidence. He 
used the phrase: ``In essence.'' Now, that is another phrase that is 
kind of a weasel word. When you hear that, it means that the evidence 
isn't really quite there, but if you look at the big picture maybe you 
can see what is there ``in essence.'' It doesn't work here. It doesn't 
work because of the evidence.
  Just a week ago, Mr. Manager Hutchinson, on this obstruction of 
justice question, was asked very clearly: ``On the case that you have 
against the President on obstruction of justice, not the perjury, would 
you be confident of a conviction in a criminal court?'' And he said, 
``No, I would not.''
  Now, I am not going to walk through each and every element that he 
identified. I think we have repeatedly dealt with them. And I am not 
going to step on your patience to do that again each time.
  I would like to make two points. That is, in terms of encouraging Ms. 
Lewinsky to lie, were these cover stories an attempt to encourage her 
to lie? As I tried to indicate, there is testimony in the record that 
at a certain time in the relation these cover stories were discussed. 
There is not any evidence, however, from Ms. Lewinsky, the President, 
or anyone else, that these were discussed in connection with the 
testimony, in connection with the affidavit. You remember Ms. Lewinsky, 
when asked if she could exclude that possibility, said, ``I pretty much 
can.''
  Now, the testimony that Mr. Hutchinson mentioned with Mr. Jordan on 
December 19, you remember he quoted Mr. Jordan. He said the discovery 
of the subpoena at that point changed the circumstances. Well, it did, 
but just in the opposite way that Mr. Manager Hutchinson would have you 
infer, because when Mr. Jordan discovered, on December 19, that Ms. 
Lewinsky had a subpoena, was going to testify in the Jones case as a 
witness, unless she could get it quashed, he went to her and went to 
the President to seek assurance that the job assistance he was engaging 
in could not at any time be said to be improper because of the presence 
of an improper relationship. Both parties assured him there was no such 
relationship. This observation by Mr. Jordan cuts just the opposite 
way.
  Thank you.
  Mr. LOTT addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.


                           Order Of Procedure

  Mr. LOTT. Mr. Chief Justice, I do have another question I will send 
to the desk momentarily, but I would like for the Senators to know that 
we have had some 104 or 105 questions now that have been asked. I 
believe that is correct--104. Senator Daschle and I conferred. We want 
to thank the Senators for their participation and their questions. We 
do want to make it clear we are not seeking questions. (Laughter.)

  So don't feel like you need to help us by sending them down. But 
under your rights as Senators, under the Senate Resolution 16 and the 
rules we are proceeding under, every and each Senator is entitled to 
submit a question if he or she feels it is important, but I hope that 
it will be one that you think really is essential that has not been 
touched on somewhere already in the answers to the questions and also 
would hope--and that the Record be made clear--that we, in a bipartisan 
way, have tried very hard to make sure that this proceeding here and 
the question period, and all we have done, has been fair both to the 
President's counsel and the House managers. And we will continue to 
work in that vein.
  With that observation, and if we do need to continue going forward 
with questions, we would have to give some consideration of taking a 
break and going longer, although I had indicated I hoped we could quit 
at 4. Maybe after this question and, if necessary, one or two more, we 
could end for the day and then get together and see if we need more 
time on Monday for additional questions.
  I send the next question to the desk.
  The CHIEF JUSTICE. This is a question from Senators Cochran, Roth, 
Campbell and Frist to the House managers:

       The President's counsel has suggested that the Senate has 
     considered a ``good behavior'' standard in impeachment cases 
     involving Federal judges. The removal of judges seems to have 
     been based by the Senate on the impeachment power whose 
     standard for removal is the same for both Federal judges and 
     executive branch officials. Is the counsel for the President 
     asking us to use a different test for removal of this 
     President than we

[[Page S955]]

     did in the case of Judge Walter Nixon? Please explain.

  Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, I 
appreciate the opportunity to answer this question. It is an important 
question. And it is true that counsel for the President are asking that 
you use a different standard in this case than the standard you have 
already established, not in just one case but, in fact, in a series of 
cases involving Federal judges who were before the Senate in the 1980s. 
There was a succession of three cases in the Senate, all dealing with 
the question of whether a Federal judge who had lied under oath should 
be removed from office because the Federal judge had lied under oath. 
In all three cases, the Senate decided that the Federal judge should be 
convicted and removed.
  Now, the President's counsel have the burden of establishing that 
those recent and very clear precedents of the Senate should not apply 
to this case where the President is charged with lying under oath. And 
they attempt to do that in a number of ways. But I would suggest, as 
you evaluate their attempt to distinguish away those precedents, that 
you look first and last to the Constitution.
  The Constitution should be your guide. And I would suggest to you 
that there is nothing in the Constitution which establishes a different 
standard for the President--for any reason. There is not something in 
the Constitution that says he is subject to a different standard 
because he is elected. That argument had been advanced. If you look in 
the Constitution, you simply will not find that. And to argue for a 
different standard because the President is elected, I would submit to 
you, is to impose something on the Constitution that is entirely alien 
to the document itself.
  The Constitution contains a single standard for the application of 
the impeachment and removal power. I have read it before, but I will 
read it again. Article II, section 4 provides:

       The President, Vice President and all civil Officers of the 
     United States, shall be removed from Office on Impeachment 
     for, and Conviction of, Treason, Bribery, or other high 
     Crimes and Misdemeanors.

  Now, reference was made in the question, and reference has been made 
by the President's counsel, to the good behavior clause. That is found 
in article III, section 1. That clause does not alter the standard I 
have just read to you, however. Rather than creating an altered 
standard for removal of Federal judges, the good behavior clause merely 
establishes that the term of office for judicial officers is life.
  Now, I wouldn't ask you to take my word for this. Let me refer again 
to the 1974 report by the staff of the Nixon impeachment inquiry. There 
they asked the question: ``Does Article III, Section 1 of the 
Constitution, which states that judges `shall hold their Offices during 
good Behaviour,' limit the relevance of the. . .impeachments of judges 
with respect to presidential impeachment standards as has been argued 
by some?'' That is essentially the question before the Senate now. 
Their answer was: ``It does not.'' It does not. ``. . .the only 
impeachment provision''--they go on to say--``discussed in the 
[Constitutional] Convention and [indeed]. . .in the Constitution is 
Article II, Section 4, which by its expressed terms, applies to all 
civil officers, including judges. . .''
  Now, I would go on to note, it is very interesting that at the 
Constitutional Convention, on August 27, 1787, an attempt was made to 
amend the good behavior clause by adding a provision for the removal of 
judges by the executive on the application by the Senate and House of 
Representatives. Now, this proposal, which was offered by John 
Dickinson, was based on the English parliamentary practice of removal 
of judges by address, a practice also utilized by several American 
States. And under this process, judges could be removed for misconduct, 
falling short of the level of seriousness that would justify 
impeachment.
  Now, the proposal offered by Dickinson was overwhelmingly rejected. 
It was overwhelmingly rejected by the Convention. Thus, the sole 
provision for removal and the sole standard for removal is that which I 
have referred to in article II, section (4).

  Now, mention has been made, and I want to respond to this, because 
mention has been made of efforts of Congress to establish a separate 
procedure for the removal of Federal judges, a procedure separate and 
apart from the impeachment and removal process.
  Specific mention has also been made of testimony given in 1970 by the 
Chief Justice, who was then an assistant attorney general, regarding a 
proposal to establish a separate removal procedure. The testimony given 
by the Chief Justice at that time related to the constitutionality of 
the provisions of the bill relating to the removal of judges by methods 
other than impeachment.
  Now, my own view, quite candidly, is that such a removal procedure 
raises serious constitutional questions--serious questions about 
maintaining the independence of the judiciary. Putting that question 
aside, and regardless of the standards that might be applied in such a 
separate removal procedure, it is clear that the single constitutional 
standard for impeachment and removal would remain the same. That is 
what is in the Constitution. That can't be changed by any statute or 
anything set up apart from the constitutional procedures.
  Now, one thing I want to say as I move toward concluding my response: 
It should be recognized that some specific acts might be a breach of 
duty if done by a judge but not a breach of duty if done by the 
President of the United States. That is an important distinction that 
we all should bear in mind. For example, it would be serious misconduct 
for a judge to engage in repeated ex parte meetings with parties who 
have an interest in a matter pending before that judge; but it is 
typical for the President to engage in such ex parte meetings with 
persons who have an interest in matters on which he will decide. For a 
judge, such conduct constitutes a breach of duty; for the President, it 
does not constitute a breach of duty.
  The CHIEF JUSTICE. Mr. Canady, I think you have answered the 
question.
  This question from Senator Harkin is to counsel for the President:

       There are three contradictions in the record: One, who 
     touched whom on what parts of the body; two, when the 
     relationship began; three, who called whom to get the gifts, 
     Ms. Currie or Ms. Lewinsky.
       How will these witnesses clear up the contradiction?

  Mr. Counsel CRAIG. Mr. Chief Justice, Senator Harkin, it is difficult 
for me to explain how, after you have gotten 19 interviews, 2 grand 
jury appearances, and 1 deposition to cover that precise territory, any 
further kind of inquiry along those lines would be of any help.
  The House managers have argued that they need to call witnesses for 
the purposes of resolving inconsistencies, conflicts, and discrepancies 
in testimony. And they have, in fact, identified Monica Lewinsky in 
particular as having given testimony in conflict with the testimony of 
the President, with Betty Currie and Vernon Jordan.
  But it would be well to remember that the lawyers for the Office of 
Independent Counsel certainly are not seeking to elicit testimony that 
is favorable to the President, that those lawyers have already done a 
great deal of this precise kind of inquiry at some great length. Those 
lawyers--no friends of the President--have already explored 
inconsistencies, they have already tested memory, they have already 
laboriously and at great length subjected these witnesses to searching 
scrutiny, and their work is available for all to see in the record of 
this case before the Senate today.

  Let me be very specific and very concrete. Monica Lewinsky was 
interviewed by the lawyers for the Office of Independent Counsel or 
testified before the grand jury on 20 different occasions after Betty 
Currie and Vernon Jordan had given their testimony before the grand 
jury. And contrary to the assertions of the House managers, Monica 
Lewinsky was interviewed six times and testified twice--one time before 
the grand jury and once in a sworn deposition after the President had 
given his testimony before the grand jury on August 17.
  On August 19, she was interviewed by the FBI and by lawyers for the 
special counsel. She testified before the grand jury--Ms. Lewinsky 
testified before the grand jury on August 20. She was interviewed by 
lawyers and FBI agents for the independent counsel on August 24. She 
was interviewed on August 26. She

[[Page S956]]

appeared for a deposition held in the conference room of the Office of 
Independent Counsel on August 26. She was interviewed pursuant to her 
immunity agreement with independent counsel and FBI agents on September 
5. She was also interviewed--excuse me; that was September 3. She 
appeared and listened to tapes with the FBI present on many occasions 
during the period September 3 through September 6. She appeared and was 
interviewed by special counsel, independent counsel, on September 7 and 
September 5 and September 6.
  So it raises a question as to whether or not the desire to interview 
Monica Lewinsky stems from a desire to resolve conflicts that she has 
with other people, because certainly these occasions gave the lawyers 
for the independent counsel an opportunity to do so.
  I would simply submit that within the bounds of ethical behavior, I 
am sure, because I respect the professionalism of the House managers, 
but I would suspect that one of the reasons they want to inquire of Ms. 
Lewinsky is not to resolve discrepancies and disputes, it is to perhaps 
challenge her testimony when it is helpful to the President and perhaps 
bolster her testimony when it is not helpful to the President. The 
House managers are not neutral investigators, they are neutral 
interrogators.
  It raises questions about what the managers' true purpose is in 
calling Vernon Jordan and Betty Currie forward as witnesses, what they 
want to inquire about if they conduct an interview of them. I suggest 
that this is also a bit of a fishing expedition, looking for evidence 
that will be damaging to the President.
  We are not afraid of witnesses, but we do want fairness, and we don't 
think it is fair in this process. If you are going to have a real 
trial, then we want to have a real defense, and to have a real defense 
requires real discovery and real opportunity to have access to 
documents and witnesses and evidence that has been in the custody and 
the control of the House of Representatives, that has never been made 
available to us, that is in the custody and control of the Office of 
Independent Counsel, that has not been made available to us.
  I suggest, as we have seen from the statements made by the managers 
to this body yesterday and today about Vernon Jordan suggesting--
actually suggesting that he did not tell the truth when he testified 
numerous times before the grand jury, which is an outrageous 
suggestion, and suggesting, which happened today--implying that he 
destroyed evidence, which not even the independent counsel had 
suggested, they seek to do nothing more than to attack, attack, attack 
the best friend of the United States, the President of the United 
States, and his personal secretary.
  That is the reason they want to talk to these people. I think it is 
an improper reason. It is wanting to win too much. I don't think the 
U.S. Senate should be part of it.
  The CHIEF JUSTICE. This question is from Senators Hagel, Abraham, and 
Hatch to the House managers:

       White House counsel has indicated their opposition to 
     calling witnesses, asserting that calling witnesses would not 
     shed light on the facts and would unnecessarily prolong the 
     proceedings. But it is the responsibility of the Senate to 
     find the truth. And if any Senators reasonably believe that 
     hearing witnesses would assist in finding the truth, why 
     shouldn't they be called?

  Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
  ``Methinks thou doth protest too much.'' I think that is what White 
House counsel has been doing. I don't know why, but they, frankly, 
don't want witnesses. They don't want what you normally have in a 
trial. We can paint this with any kinds of colors you want to have, but 
a trial without witnesses, when it involves a criminal accusation, a 
criminal matter, is not a true trial; it really isn't. It is not what I 
think of, and I guarantee it is not what any of my friends sitting over 
here who have been counsel, prosecutors and defense lawyers, think of. 
It is remotely conceivable, but certainly not where you have had the 
inferences and the conclusions that we draw logically from the entire 
sequence of events that are painted from the very day when the 
President got word of Monica Lewinsky being on the witness list, and 
all the way through his testimony in the Jones case, all the way 
through the grand jury testimony, when they challenge every inference 
that you should logically draw from the record, and then suggest that, 
oh, but we should not have anybody in here; so you who are going to 
judge ultimately whether our representations are persuasive or not 
about those inferences, whether you should be able to judge--and I 
think you should--what the witnesses actually are saying.
  I will give you one illustration. I don't know how many times--two or 
three times--I put up here on the board, or I have said to you--and I 
know a couple of my colleagues said to you--that during the discussion 
with regard to the affidavit that Monica Lewinsky had in front of the 
grand jury, she explicitly said: No, the President didn't tell me to 
lie, but he didn't discourage me either. He didn't encourage me or 
discourage me.
  You need to have her say that to you. They have even been whacking 
away at that, confusing everything they can, talking about the job 
searches at the same time they are talking about the affidavit, what 
she said here, there, or anywhere else. Witnesses are a logical thing. 
There are a lot of conflicts that are here.
  When we get to the point--which we presume we will get that 
opportunity to do--to argue our case on why we should have witnesses, 
maybe Monday or perhaps Tuesday--I think that even though you have a 
motion to dismiss, we will get that chance--we will lay out a lot of 
these things. There are a lot of them out there. But the point is, 
overall, you need to have the witnesses to judge what any trier of fact 
judges about any one of these.
  I would be happy to yield to Mr. Graham or Mr. Rogan if they wish--
neither one. That is fair enough.
  Mr. LOTT addressed the Chair.
  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. LOTT. Mr. Chief Justice, it now approaches the hour that we had 
indicated we would conclude our work on Saturday. There may still be 
some questions that Senators would like to have offered. I have talked 
to Senator Daschle.

  One suggestion made is that maybe on Monday we would ask that 
questions could be submitted for the Record in writing. I think that is 
a common practice. We don't want to cut it off. At this point, I would 
not be prepared to do that. But I would like to suggest that we go 
ahead and conclude our business today, and if there is a need by a 
Senator on either side to have another question, or two or three, we 
will certainly consult with each other and see how we can handle that, 
perhaps on Monday, and even see if it would be appropriate to prepare a 
motion with regard to being able to submit questions for the Record, 
which would be answered. We would not want to abuse that and cause that 
to be a protracted process.
  In view of the time spent here--in fact, we have had around 106 
questions, and we are about 10 hours into this now--I think we should 
conclude for this Saturday. We will resume at 1 p.m. on Monday and 
continue in accordance with the provisions of S. Res. 16. I will update 
all Members as to the specific schedule when it becomes clear.


                      Unanimous-Consent Agreement

  Mr. LOTT. I ask unanimous consent that in the Record following 
today's proceedings there appear a period of morning business to 
accommodate bills and statements that have been submitted during the 
day by Senators. I thank my colleagues for their attentiveness during 
the proceedings.
  The CHIEF JUSTICE. Without objection, it is so ordered.

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