[Congressional Record Volume 145, Number 13 (Monday, January 25, 1999)]
[Senate]
[Pages S961-S974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                                 prayer

  The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer:
  Dear God, we are moved by Your accessibility to us and our 
accountability to You. We hear Your promise sounding in our souls, ``Be 
not afraid, I am with you.'' We place our trust in Your problem-solving 
power, Your conflict-resolving presence, and Your anxiety-dissolving 
peace. So we report in to You for duty. What You desire, You inspire. 
What You guide, You provide.
  This is Your Nation; we are here to serve You. Just as Daniel Webster 
said that the greatest conviction of his life was that he was 
accountable to You, we press on with a heightened awareness that You 
are the unseen Lord of this Chamber, the silent Listener to every word 
that is spoken, and the Judge of our deliberations and decisions.
  Bless the Senators with the assurance that Your work, done with total 
trust in You and respect for each other, will not lack Your resources. 
Surpass any impasse with divinely inspired solutions. You are our Lord 
and Savior. Amen.
  The CHIEF JUSTICE. The Sergeant at Arms will make the proclamation.
  The Sergeant at Arms, James W. Ziglar, made proclamation as follows:

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


                              The Journal

  The CHIEF JUSTICE. If there is no objection, the Journal of 
proceedings of the trial are approved to date.
  Pursuant to the provisions of Senate Resolution 16, there are 6 hours 
33 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.


                           Order of Procedure

  Mr. LOTT. As is obvious by the absence of the managers and counsel, 
and a number of the Senators, the two parties are still meeting in 
conference at this time. I believe we are close to reaching an 
agreement which would outline today's impeachment proceedings. It will 
probably be an hour or so before we can complete that because we need 
to explain it in detail to our respective conference, and also make 
sure that we reduce it to writing so we understand exactly what we are 
agreeing to.
  I will in a moment ask that the Senate stand in recess until 2 p.m. I 
apologize for any inconvenience to Senators and the Chief Justice. But 
I think that what we are discussing in the long run would save some 
time and lead us to a fair procedure through the balance of the day and 
how we begin tomorrow.


                                 Recess

  Therefore, I now ask unanimous consent that the Senate stand in 
recess until 2 p.m.
  Mr. GREGG. Mr. Chief Justice, reserving the right to object----
  The CHIEF JUSTICE. The Senator from New Hampshire.
  Mr. GREGG. Mr. Chief Justice, I have a parliamentary inquiry that I 
would like to share.
  The CHIEF JUSTICE. The Parliamentarian says it takes unanimous 
consent.
  Mr. GREGG. I ask unanimous consent to----
  Mr. LEAHY. Reserving the right to object, I believe that if it is 
going to be made, Mr. Chief Justice, if it requires unanimous consent, 
that it would be wise if it can be done at a time when both leaders are 
on the floor.
  Mr. GREGG. I withdraw the unanimous consent.
  There being no objection, at 1:08 p.m., the Senate recessed until 
2:06 p.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Mr. Chief Justice, it is my understanding that the question 
and answer period is now completed. In a moment I will propound a 
unanimous consent agreement that will outline the next steps in this 
process.

[[Page S962]]

                      UNANIMOUS-CONSENT AGREEMENT

  Mr. LOTT. In the meantime, I would ask unanimous consent that 
Senators be allowed to submit statements and introduce legislation at 
the desk today. I further ask unanimous consent that when the Senate 
completes its business today, it stand in adjournment until 1 p.m. on 
Tuesday to resume the articles of impeachment.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  Ms. MIKULSKI. Reserving the right to object, I note that the 
Democratic leader is not in the Chamber.
  May I inquire, has this been cleared?
  Mr. LOTT. I just want to observe, Mr. Chief Justice, that there are 
still some discussions underway. You will note that Senator Daschle is 
not here, and unless there is objection to what I just did, I am 
prepared to note the absence of a quorum so that we can have time for 
Senators to return to the Chamber.
  Ms. MIKULSKI. Point of clarification for the majority leader. Did the 
Senator say that we would come in tomorrow at 1 p.m.?
  Mr. LOTT. I did. If I might respond, Mr. Chief Justice, there had 
been some discussion about coming in earlier, but because of a number 
of conflicts, I understand, from the House managers and concerns that 
we would need that time to continue to have discussions, we thought we 
would go ahead and come in at 1. But let me add that if during the 
process of the day there is a decision that we need to change that to 
either earlier or later, we could revise that request. This is just to 
move the process forward, as we have announced each day we would come 
in at 1 except on Saturday. But if there is a need to change the time, 
we will certainly be prepared to consider that request.
  Ms. MIKULSKI. Mr. Chief Justice, I thank the majority leader.
  Mr. LOTT. Mr. Chief Justice, I suggest the absence of a quorum.
  The CHIEF JUSTICE. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  Mr. LOTT. Mr. Chief Justice, I had earlier asked a couple of 
unanimous consent requests, but the Democratic leader was not on the 
floor, and it was not officially objected to or officially ruled as not 
having been objected to. So I am going to assume that is all null and 
void, and we are going to start over again.
  The CHIEF JUSTICE. The requests are withdrawn.
  Mr. LOTT. Now, to repeat what we had earlier discussed and to make 
sure Members understand it, it is our understanding and our agreement 
that the question and answer period is now completed.


   Order for Submission of Statements and Introduction of Legislation

  Mr. LOTT. I ask unanimous consent that Senators be allowed to submit 
statements and introduce legislation at the desk today.
  The CHIEF JUSTICE. Without objection, it is so ordered.


                           Order of Procedure

  Mr. LOTT. With regard to the time that will be involved today and the 
time that we will come in on Tuesday, we will have further discussions 
on that, and we will have a consent request on that later in the day or 
at the close of business.
  Now I have a unanimous consent request that will allow us to have a 
clear understanding and an orderly procedure for the balance of the 
day. I have discussed this with my counterpart on the other side of the 
aisle, both conferences have had a chance to talk about it, and I think 
it is a fair way to proceed, where we would have a chance to discuss 
the issues that are before us and get us to a conclusion of this part 
of the impeachment proceedings in a logical way.


                       Unanimous-Consent Request

  Mr. LOTT. First, Mr. Chief Justice, I ask unanimous consent that 
following the conclusion of the arguments by the managers and the 
counsel today on the motion to dismiss--and I note that the next order 
of business is 2 hours equally divided, 1 hour on each side, on a 
motion to dismiss when and if it is filed by any Senator--and after 
that, it be in order for Senator Harkin to make a motion to open all 
debate pursuant to his motion timely filed and that the Senate proceed 
immediately to the vote pursuant to the impeachment rules.
  I further ask that following that vote, if defeated, it be in order 
to move to close the session for deliberations on the motion to 
dismiss, as provided under the impeachment rules, and the Senate 
proceed to an immediate vote.
  I further ask that if the Senate votes to proceed to closed session, 
that those deliberations must conclude by the close of business today, 
notwithstanding the 10-minute rule allocated under the impeachment 
rule.
  The CHIEF JUSTICE. Is there objection?
  Mr. HARKIN. I object.
  Mr. FEINGOLD addressed the Chair.
  The CHIEF JUSTICE. The Senator from Iowa.
  Mr. HARKIN. Reserving the right to object.
  Mr. LOTT. Mr. Chief Justice, does he reserve the right to object or 
did he object?
  The CHIEF JUSTICE. The Parliamentarian tells me the Senator does not 
have the right to reserve the right to object.
  Mr. FEINGOLD addressed the Chair.
  Mr. HARKIN. I just have a modification that I would like to discuss 
with the leader, a brief modification of that, that would not engender 
an objection.
  Mr. LOTT. Mr. Chief Justice, so we can proceed with this in an 
appropriate manner, I suggest the absence of a quorum.
  The CHIEF JUSTICE. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The CHIEF JUSTICE. Without objection, it is so ordered.


                      Unanimous-Consent Agreement

  Mr. LOTT. Mr. Chief Justice, I renew my request as previously 
outlined, with one change; that is, that it say in the first sentence 
``unanimous consent that following the conclusion of the arguments by 
the managers and the counsel today on the motion to dismiss, that it be 
in order for Senator Harkin to make a motion to open that debate.'' 
Instead of ``all,'' the word is ``that'' debate.
  With that and no other changes, I renew that request.
  Mr. HARKIN. Mr. Chief Justice, I reserve the right to object.
  OK, I don't have any----
  Mr. LOTT. The reservation is withdrawn, I believe.
  Mr. FEINGOLD. Mr. Chief Justice, I object.
  The CHIEF JUSTICE. Objection is heard.
  Mr. FEINGOLD addressed the Chair.
  Mr. LOTT. Mr. Chief Justice, I suggest the absence of a quorum.
  The CHIEF JUSTICE. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LOTT. Mr. Chief Justice, welcome to the operations of the U.S. 
Senate.
  I ask unanimous consent that the order for the quorum call be 
rescinded.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  Mr. LOTT. Mr. Chief Justice, was the unanimous consent agreement 
agreed to?
  The CHIEF JUSTICE. Not yet.
  Mr. LOTT. I renew my request.
  Mr. FEINGOLD addressed the Chair.
  The CHIEF JUSTICE. Objection is heard.
  Mr. FEINGOLD. Mr. Chief Justice, I and Senator Collins, the junior 
Senator from Maine, ask unanimous consent that when the Senate consider 
the anticipated motion to dismiss, that it shall vote on two separate 
questions: First, whether to dismiss article I of the articles of 
impeachment; and, second, whether to dismiss article II.
  Mr. GRAMM. I object.
  The CHIEF JUSTICE. There is a pending request for unanimous consent 
by the majority leader, who has not surrendered the floor.
  Mr. LOTT. Under his reservation, if the Senator would yield to me, I 
believe if we can get this agreed to, he can make his request and then 
it can be ruled on.
  Mr. Chief Justice, I yield the floor if the Senator would like to 
proceed in that fashion.
  I renew my request, again, for the unanimous consent as outlined 
earlier.
  The CHIEF JUSTICE. Is there objection? In the absence of an 
objection, it is so ordered.

[[Page S963]]

  Mr. FEINGOLD. Mr. Chief Justice, I renew my request, along with the 
junior Senator from Maine--the unanimous consent request that when the 
Senate proceeds to vote on the anticipated motion to dismiss, that the 
question be divided into a separate vote on article I of the articles 
of impeachment, and then a separate vote on article II of the articles 
of impeachment.
  Mr. GRAMM. I object.
  The CHIEF JUSTICE. Objection is heard.
  Mr. LOTT. Mr. Chief Justice, now, if I could, I will outline the 
result of our efforts there. I thank Senator Daschle and my colleagues 
on his side of the aisle and this side of the aisle for trying to come 
up with a process that is fair and that would give us an opportunity 
today to debate this important issue. It is never easy to get 100 
Senators to agree on a method to proceed, so I think this was a good 
accomplishment. I thank one and all.
  I understand that now Senator Byrd will offer the motion to dismiss. 
For the information of all Members, once that motion is offered, there 
will then be 2 hours for debate. The House managers will be recognized 
to open the debate, and following that will be the White House 
arguments. Then the House managers will be recognized again for closing 
remarks. At that point, the consent agreement would apply.
  I anticipate taking our first break at the conclusion of the first 2 
hours of arguments by the managers and White House counsel, unless 
there is an urgent need to do so earlier. Then we will go forward with 
this agreement, which will require a vote on the Harkin motion to open 
the debate; the vote on the amendment to close debate on the motion to 
dismiss; and then the debate which would go on, the 10-minute rule 
notwithstanding, until the close of business today.
  I yield the floor.
  Mr. BYRD addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the Senator from West 
Virginia.


                           Motion To Dismiss

  Mr. BYRD. Mr. Chief Justice, I send a motion in writing to the desk.
  The CHIEF JUSTICE. The clerk will read the motion.
  The legislative clerk read as follows:

       The Senator from West Virginia, Mr. Byrd, moves that the 
     impeachment proceedings against William Jefferson Clinton, 
     President of the United States, be, and the same are, duly 
     dismissed.

  The CHIEF JUSTICE. Pursuant to Rule XXI of the Senate Rules on 
Impeachment, the managers on the part of the House of Representatives 
and the counsel for the President each have up to 1 hour to argue the 
motion.
  The Chair recognizes the House managers.
  Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, on 
behalf of the House of Representatives, I rise to speak in opposition 
to the motion to dismiss. During the hour allotted to the managers, I 
will offer a few introductory comments concerning why adoption of the 
motion would be inconsistent with constitutional standards and harmful 
to the institutions of our Government. Mr. Hutchinson, Mr. Graham, and 
Mr. Gekas will present arguments concerning the facts and the law, and 
then Mr. Hyde will close.
  At the outset, I must urge you to consider the fact that this motion 
to dismiss is without precedent. The Senate has never--not once in the 
more than 200-year history of our Constitution--dismissed a proceeding 
against an official who remained in office after impeachment by the 
House of Representatives. I humbly urge you not to depart from the 
Senate's well-established practice of fully considering cases of 
impeachment and rendering a judgment of either conviction or acquittal.

  In the midst of the great differences between the President's counsel 
and the House managers, there actually is at least a little common 
ground. Both sides agree that the impeachment and removal power is 
designed to protect the well-being of the institutions of our 
Government. But there is a critical difference that divides us, as is 
obvious from the argument that has gone before.
  The managers have argued that this power--the power of impeachment 
and removal--is a positive power granted by the Constitution to 
maintain the integrity of Government, a power to preserve, protect, and 
strengthen our constitutional system against the misconduct of 
officials that would subvert, undermine, or weaken the institutions of 
our Government.
  The President's lawyers, on the other hand, advance a much narrower 
view of the role of the impeachment power in protecting our 
institutions. Their case rests on the argument that it is a power to be 
used only in response to conduct threatening devastating harm to the 
system of Government--at least when it is used against a President.
  But I submit to you that Alexander Hamilton did not contemplate that 
the impeachment process would be so restricted when he spoke of it as a 
``method of national inquest into the conduct of public men.'' And 
James Iredell did not have such a narrow view in mind when he spoke of 
the accountability through impeachment of anyone who ``willfully abuses 
his trust.'' Iredell did not have such a limited view when he spoke of 
the impeachment of a President who, as he said, ``acted from some 
corrupt motive or other.''
  Under the standards urged by the President's lawyers, the misdeeds of 
Richard Nixon would not be the threshold for impeachment and removal. 
What he did was corrupt. The legal rights of citizens were treated with 
contempt. President Nixon showed an egregious lack of respect for the 
law. But all these misdeeds did not threaten the sort of ruinous harm 
to the system of Government that the President's lawyers argue would be 
required to justify conviction and removal. After all, the core charges 
against President Nixon related to the coverup of a third-rate 
burglary.
  Members of the Senate, as you consider the motion to dismiss, I ask 
you to pause and reflect on the consequences of the standard advocated 
by the President's lawyers. Consider the consequences for the system of 
justice of allowing the President's dangerous example of lawlessness to 
stand. Consider the consequences for the Presidency itself.
  I respectfully submit to you that the standard advocated by President 
Clinton's lawyers will debase and degrade the institution of the 
Presidency. I know that is not the intention of the President's 
lawyers, but it is the necessary consequence of their position.
  Only 42 men have held the office of President of the United States. 
Some of them have been ordinary men of limited talent. A handful of our 
Presidents have been great men. Most have been capable men who brought 
special skills to the office. No matter what our individual judgments 
may be concerning President Clinton, it is clear that he is one of the 
most intellectually gifted and politically skilled men to hold the 
office of President.
  He was raised to this great eminence--the most powerful office in the 
greatest Nation in the history of the world--an unparalleled 
opportunity, honor and privilege. And in this position of eminence and 
honor, and in this position of trust, what did he do? He made a series 
of choices that has brought us to this day. He made the choice to 
violate the law--and he made that choice repeatedly. He knew what he 
was doing. He reflected on it. Perhaps he struggled with his 
conscience. But when the time came to decide, he deliberately and 
willfully chose to violate the laws of this land. He chose to turn his 
back on the very law he was sworn to uphold. He chose to turn his back 
on his solemn oath of office. He chose to turn his back on his 
constitutional duty.
  As you deliberate on this motion, I ask you to consider what William 
Jefferson Clinton has done to the integrity of the great office he 
holds as a trust. I ask you to consider the harm he has caused, the 
indignity he has brought to the institution of the Presidency.
  Some have asked of us, ``Where is the compassion and where is the 
spirit of forgiveness?'' Let me say that I, for one, believe in 
forgiveness. Without forgiveness, what hope would there be for any of 
us? But forgiveness requires repentance; it requires contrition. And so 
I must ask, where is the repentance? Where is the contrition?

  It is true that the President has expressed regret for his personal 
misconduct. But he has never--he has never--accepted responsibility for 
breaking the law. He has never taken

[[Page S964]]

that essential step, as the argument advanced so vigorously by his 
counsel makes clear. He has refused to accept responsibility for 
breaking the law. He has stubbornly resisted any effort to be held 
accountable for his violations of the law, for his violations of his 
constitutional oath, and his violation of his duty as President. To 
this day, he remains adamantly unrepentant. And, of course, under our 
system of justice, even sincere repentance, which is so lacking here, 
does not eliminate all accountability.
  In the discussion thus far, the debate has brought the concept of 
proportionality to the fore from time to time. You have been urged to 
reject your own precedents--the clear precedents establishing that 
crimes such as lying under oath justify conviction and removal. The 
principle of proportionality, it has been urged, requires that the rule 
you have applied to Federal judges not be applied to the President of 
the United States.
  I will be the first to concede that removing a President of the 
United States is, without doubt, a more momentous decision than 
removing one of the hundreds of Federal judges who hold office in this 
country. When the Chief Executive is removed, the gravity of the matter 
undeniably reaches a higher level. But it is also true--and it must not 
be forgotten--that when the President engages in a calculated and 
sustained course of conduct involving obstruction of justice and 
perjury, the gravity of the consequences for the Nation also reaches a 
far higher level. Such lawless conduct by the President does 
immeasurably more to subvert public respect for the law than does the 
misconduct of any Federal judge or any other Federal official.
  As has been pointed out more than once, the Constitution contains a 
single standard for impeachment and removal of all civil officers; 
there is not one standard for the President and another standard for 
everyone else. There is nothing in the Constitution that requires you--
or allows you--to set a lower standard of integrity for the President 
than the standard you have set for other officials who have been 
convicted and removed by your solemn action.
  Although they can point to nothing in the Constitution, the 
President's lawyers assert that the President is simply different 
because he is elected. So let me say this. The Senate itself has 
established a standard of integrity for its own elected Members that 
President Clinton could not meet. As recently as 1995, an elected 
Senator resigned under imminent threat of expulsion for offenses that 
included acts similar to the acts of obstruction of justice committed 
by President Clinton.
  Senator Robert Packwood was elected, yet he was on his way to certain 
expulsion. Listen to what the Senate Select Committee on Ethics had to 
say about Senator Packwood's conduct. He was guilty, the committee 
found, of

     * * * withholding, altering and destroying relevant evidence 
     . . . conduct which is expressly prohibited by 18 United 
     States Code, section 1505. . . . Senator Packwood's illegal 
     acts constitute a violation of his duty of trust to the 
     Senate and an abuse of his position as a United States 
     Senator, reflecting discredit upon the United States Senate.

  The statute referred to by the committee in the Packwood case is 
closely analogous to the obstruction of justice statute the President 
has violated. Senator Packwood unlawfully sought to impede the 
discovery of evidence. President Clinton has done the same thing. For 
his violation of the law, Senator Packwood, an elected Senator, was 
judged worthy of expulsion from the Senate.
  But the President's lawyers argue the President should be held to a 
lower standard of integrity than the standard you have set for 
yourselves as Members of the Senate. According to them, the 
Constitution establishes a lower standard of integrity for the 
President than the standard for Senators, a lower standard than the 
standard for Federal judges, and a lower standard than the standard for 
members of the Armed Forces of the United States.
  Ladies and gentlemen of the Senate, I submit to you that the 
President's lawyers, honorable as they are, are simply wrong. They 
advocate an arbitrary standard that would insulate the President from 
the proper accountability for his misconduct under our Constitution. 
Our Constitution does not establish a lower standard of integrity for 
the President of the United States.
  The Senate, I respectfully submit to you, should follow the well 
established precedents. The Senate should reject the motion to dismiss.
  The CHIEF JUSTICE. The Chair recognizes Mr. Hutchinson.
  Mr. Manager HUTCHINSON. Mr. Chief Justice, how much time has expired?
  The CHIEF JUSTICE. Twelve minutes.
  Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and gentlemen of 
the Senate, in my former life, when I tried cases, the defense counsel 
would routinely offer a motion to dismiss and my clients would always 
ask me how they could argue to dismiss a case before we had a chance to 
put on our evidence. I would always explain that there was more than 
sufficient evidence to get this case to a jury and they didn't have to 
worry.
  We all know that granting a motion to dismiss is a weapon that is 
rarely used in court. It is a severe remedy that cuts off an 
individual's right to seek justice in court. For that reason, a motion 
to dismiss must fail if there is any substantial evidence to support 
the case. In addition, as you evaluate evidence under a motion to 
dismiss, the facts are to be considered in a way that is most favorable 
to the respondent--in this case the House managers.
  For example, if there is a dispute between the testimony of Ms. 
Lewinsky and the President in consideration of this, I would urge you 
to--and believe that under proper rules you should--consider that in 
the favor of the theory of the articles of impeachment.
  It has been explained to me many times that standard courtroom rules 
do not apply in the U.S. Senate. But, still, granting a motion to 
dismiss by the Senate has the same effect--to cut short the trial and 
avoid the development of the facts--as it would in any State court 
case. In this case of impeachment, the House of Representatives found 
that there was substantial evidence to support these articles. And the 
Senate should not summarily dismiss the charges.
  I might add that, despite Mr. Ruff's references, the House standard 
for the articles of impeachment was not simply probable cause. My 
colleagues on the Judiciary Committee looked at a much higher standard 
of clear and convincing evidence.

  But, coming back to the Senate, to dismiss the case would be 
unprecedented from a historical standpoint, because it has never been 
done before; it would be damaging to the Constitution, because the 
Senate would fail to try the case; it would be harmful to the body 
politic, because there is no resolution of the issues of the case; but, 
most importantly, it would show willful blindness to the evidentiary 
record that has thus far been presented.
  An appropriate question, you might ask, is: How should you decide 
whether this motion should be granted? I would contend that you should 
decide this issue based upon the facts that you have before you in the 
record and not on any other criteria. A motion to dismiss should not be 
granted because you do not think there are presently enough votes for 
conviction.
  Let me assure you that I want this over. As Bruce Lindsey, sitting 
over here, will probably attest, this is bad for me politically. I am 
from Arkansas, the State Bill Clinton dominated politically for years, 
and certainly its most influential politician. But we do have our 
responsibilities, and I happen to believe that we should follow the 
process which is dictated by the Constitution and the facts.
  I know I am making legal arguments to this Court of Impeachment, in 
which I understand you make your own rules, and I respect that. But, as 
opposing counsel pointed out on many occasions, there are reasons for 
these rules of procedure and they have relevance to your deliberations 
today. Again, your decision should be based upon the facts, and so 
let's discuss the facts.
  Does the record support the charges of obstruction of justice and 
perjury? To look at this from a different angle, because we talked 
about it at length, let's examine how the President responded to 
critical developments in the Federal civil rights case in which he was 
a defendant.
  First, how did he handle those people he knew to be witnesses? The 
President did not want them to testify, and, if

[[Page S965]]

they did testify, he did not want them to testify truthfully. Two of 
those witnesses were Monica Lewinsky and Betty Currie.
  Clearly, he did not want them to testify in the Federal civil rights 
case and, likewise, his lawyers today do not want those witnesses to 
testify before this body.
  Now, let's look at what happened when the President learned that 
Monica Lewinsky was on the witness list. Very quickly, it was December 
5 that the witness list came in. He learned about it probably the next 
day, December 6. Monica Lewinsky visited with him and said Vernon 
Jordan was not doing very much on the job front. The President's 
response is, okay, I will talk to him. I will get on it.
  Now, Ms. Lewinsky assumed that was a brushoff, but he was serious 
about it because he later learned that day that at the latest--he 
learned later that day that Monica was on the witness list when he met 
with the lawyers.
  After that, the next day, he meets with Vernon Jordan at the White 
House. And even though Mr. Jordan says he thinks it was unlikely that 
the job situation was discussed, Mr. Jordan makes it clear that he 
ultimately went to work to get Ms. Lewinsky a job at the direction of 
the President. According to Mr. Jordan's grand jury testimony on June 
9, he testified, ``The President asked me to get Monica Lewinsky a 
job.'' That is undisputed. He had testified to the same grand jury, 
``He,'' referring to the President, ``is the source of it coming to my 
attention in the first place.''
  And so as the result of the President's request, Vernon Jordan got to 
work, met with Ms. Lewinsky, assisted her in securing key job 
interviews and kept the President informed. The job search became 
critical when she was put on the witness list on December 5, and the 
December 11 order of Judge Wright served to reinforce the urgency of 
the matter.
  Now, all of this was happening when the President knew she was a 
witness in the civil rights case, but the individuals affected by the 
President's unlawful scheme of obstruction may not have been privy to 
his plans. He kept Ms. Lewinsky in the dark about her being a witness 
until he had the job search well underway. And Mr. Jordan indicates 
that he was simply trying to get Ms. Lewinsky a job at the direction of 
the President without any clue that she was a witness until she got the 
subpoena on December 19.
  Now, the President kept his information about Ms. Lewinsky being on 
the list away from her until he called her at 2 a.m. in the morning on 
December 17 to let her know the news.
  So how does the President handle witnesses in the judicial system 
that are a danger to him? He wanted to make sure that they were taken 
care of and cooperative in concealing the truth from the courts.
  The next critical step for the President to assure that Ms. Lewinsky 
sticks with her predesigned cover stories was that she would not 
deviate from that even though they were now in the court system. Vernon 
Jordan testified in the grand jury that ``it didn't take an Einstein to 
know when she was under subpoena the circumstances changed,'' and, of 
course, that is clear.
  When Ms. Lewinsky was placed on the witness list, the truth became a 
threat to the President. He tried to avoid the truth at all costs and 
was willing to obstruct the legal processes of the judicial system in 
order to protect himself. The obstruction started with the job favors 
and then continued through the December 17 conversation with the 
President when the President encouraged her to keep using the cover 
stories even though she would be under oath as a witness, encouraged 
her to sign a false affidavit, and then on December 28, according to 
the testimony of Ms. Lewinsky, the President sent Betty Currie to 
retrieve items of evidence for the purpose of concealment and with the 
obvious effect of obstructing the truth.
  Despite the concerted effort of the President in keeping Monica 
Lewinsky from being a truthful witness, the President was not yet home 
free. He still had to go through the hurdle of his own deposition on 
January 17. And even though he knew there were going to be questions 
about Monica Lewinsky, he was hopeful that the false affidavit, the 
representations of his attorney, Robert Bennett, and the President's 
own affirmation of the false affidavit would be sufficient to prevent 
questioning about Ms. Lewinsky. But it didn't work. Despite this 
effort, the Federal district court judge ordered the President to 
respond to the questions. At that point he had a choice. He could tell 
the truth under oath, or he could provide false statements. He chose 
the latter, and that decision forced a continued pattern of 
obstruction.
  During the deposition, he asserted the name of Betty Currie at least 
six times, and by doing so he dared the plaintiff's lawyers to question 
Ms. Currie as a witness. They knew it, and he knew it. When the Jones 
lawyers returned from the deposition, they immediately set about 
issuing a subpoena for Betty Currie. And what did the President do? He 
immediately set about attempting to assure that Betty Currie would not 
state the truth when called as a witness.
  They defended that she wasn't a witness, she wasn't a prospective 
witness, but yet we produced the subpoena that she was a prospective 
witness, and they wanted her to testify and everyone knew it. The 
President called her at home, arranged for her to come in the next day, 
and put her through the questioning: He was never alone with Monica, 
trying to establish that; that Monica was the aggressor and that the 
President did nothing wrong. That is what he was trying to accomplish 
through his questioning of Betty Currie.

  Can you imagine how uncomfortable Betty Currie was, must have felt on 
that occasion, being called in to see her boss, then having the 
President recreate a fictional account in order to prevent the truth 
from coming out in a court of law. But once was not enough, and 2 days 
later Ms. Betty Currie was brought in for the same series of questions. 
The message was clear. You have got to cover for the President even 
though the purpose was unlawful.
  And so we see a pattern developing. When it comes to a witness, 
whether it is Monica Lewinsky or Betty Currie, the choice is made. The 
President encouraged the witness to lie, and the President chose to 
impede the administration of justice rather than assuring that the laws 
be faithfully executed.
  But the President had one final choice, and that was in his grand 
jury testimony in August. At this point, the embarrassment of the 
relationship was public, and that could no longer serve as an excuse 
not to tell the truth. But, once again, the President chose not to 
abide by his oath but to evade the truth and provide false statements; 
not to protect his family, not to preserve the dignity of the 
Presidency, but to prevent the grand jury from knowing the truth in 
their investigation and to continue the coverup began during the truth-
seeking process in the civil rights case.
  I do not have time to cover all the facts, but they are more than 
substantial, they are compelling, and they are convicting.
  Let me leave you with some questions. First of all, who asked Vernon 
Jordan to get Monica Lewinsky a job? The answer? It was the President.
  Secondly, who suggested that Monica Lewinsky sign an affidavit to 
avoid testifying in the civil rights case, which by its nature had to 
be false? The answer? It was the President. Who obstructed the truth 
when Monica Lewinsky was subpoenaed as a witness? It was the President. 
Who impeded the gathering of evidence when the Federal court subpoena 
called for the production of gifts? The answer? It was the President. 
Who tampered with the testimony of Betty Currie when it was clear she 
was a witness in the case? It was the President. Who took an oath and 
failed to tell the truth before the courts of our land? It was the 
President.
  I state these facts with sadness, but these facts are true. The 
motion should be defeated.
  I thank the Senate. On behalf of the managers, Mr. Chief Justice, I 
reserve the remainder of the time.
  The CHIEF JUSTICE. Very well. The Chair recognizes counsel for the 
President.
  Ms. Counsel SELIGMAN. Mr. Chief Justice, ladies and gentlemen of the 
Senate, distinguished House managers, good afternoon. My name is Nicole 
Seligman. I am a member of the law firm

[[Page S966]]

of Williams & Connolly here in Washington, DC. I have been privileged 
to represent President Clinton as personal counsel since 1994.
  I am honored to stand before you today to argue in support of the 
motion to dismiss the impeachment proceedings that has been offered by 
the senior Senator from West Virginia, Senator Byrd.
  The Constitution reposes in this body and nowhere else the sole 
authority to try impeachments. It has placed in your hands alone the 
decision whether to dismiss now or to go forward. There is no judicial 
review. There is no judicial guidance other than that which each of 
you, in your wisdom, may choose to apply by analogy from judicial 
experience. There are no particular rules of civil or criminal 
procedure that you must follow. The Constitution has freed you from 
that. It has wisely placed in your hands alone the ability to make a 
sound judgment in the manner you think best for the reasons you think 
best, based on your wisdom and experience, as to what is best for this 
Nation at this moment in the proceedings.

  We submit to you that the moment has arrived where the best interests 
of the Nation, the wise prescription of the framers, and the failure of 
the managers' proof, all point to dismissal. You have listened. You 
have heard. The case cannot be made. It is time to end it.
  Without presuming to infringe on the constitutional authority that is 
yours alone, and without repeating at undue length the arguments that 
you heard over the past few weeks, I do want to set out briefly the 
reasons that we believe to be some of the grounds on which an early and 
fair disposition of this difficult matter might rest. There are at 
least four such grounds. Each one stands by itself as sufficient reason 
to vote for the motion of Senator Byrd.
  The first ground is the core constitutional issue before you, the 
failure of the articles to charge impeachable offenses. They do not do 
so. They do not allege conduct that, if proven, violated the public 
trust in the manner the framers intended when they wrote the words 
``treason, bribery, or other high crimes and misdemeanors.'' For absent 
an element of immediate danger to the state, a danger of such magnitude 
that it cannot await resolution by the electorate in the normal cycle, 
the framers intended restraint. There is no such danger to the state 
here. No one has made that claim, or could, or would. A vote for the 
motion is a vote for constitutional stability.
  Impeachment was never meant to be just another weapon in the arsenal 
of partisanship. By definition, a partisan split like that which 
accompanied these articles from the House of Representatives creates 
doubt that makes plain a constitutional error of the course that we are 
on. As Senator William Pitt Fessenden wrote 130 years ago on a great 
and decisive historical occasion, the impeachment trial of Andrew 
Johnson:

       Conviction upon impeachment should be free from the taint 
     of party and leave no ground for suspicion upon the motives 
     of those who inflict the penalty.

  His words echoed those of Alexander Hamilton who, in the much quoted 
Federalist 65, had warned, in his words, of ``the greatest danger that 
the decision''--that is the decision by the Senate--``will be regulated 
more by the comparative strength of the parties than by the real 
demonstrations of innocence or guilt.''
  Now, Mr. Manager Graham has candidly acknowledged that reasonable 
people could disagree about the propriety of removal. He said they 
absolutely could. We suggest to you that there can be no removal when 
even the prosecutor agrees that such reasonable doubts exist. If 
reasonable people can disagree, we suggest to you that reasonable 
Senators should dismiss. The constitutional standard for impeachment is 
not met here.
  The second and third grounds we offer to you relate to the deeply 
flawed drafting of the articles by the House of Representatives. They 
have left the House managers free to fill what Mr. Ruff described as 
``an empty vessel,'' to define for the House of Representatives what it 
really had in mind when it impeached the President. But that is not a 
role that the Constitution allows to be delegated to the House 
managers. It is not a role that the Constitution allows them to fill. 
It is a role that is explicitly and uniquely reserved to the full House 
of Representatives which, under our Constitution, has the sole power to 
impeach.

  The articles also are unconstitutionally defective for yet another 
reason, because each article combines a menu of charges, and the 
managers invite the Members of this body to convict on one or more of 
the charges they list. The result is the deeply troubling prospect that 
the President might be convicted and removed from office without two-
thirds of the Senate agreeing on what the President actually did. Such 
a result would be in conflict with the requirement that the President 
cannot be convicted unless two-thirds of this body concurs. The 
requirement of a two-thirds supermajority is at the core of the 
constitutional protection afforded the President and the American 
people. The Founding Fathers were wise to guarantee that protection, 
and it has protected the Presidency for more than two centuries. The 
House must not be allowed to erode that protection today. The articles, 
as drafted, are unconstitutional.
  The fourth ground for the motion is based on the facts. Mr. Manager 
McCollum has twice asserted that this body must first determine whether 
the President committed crimes, and then move on to the question of 
removal from office. Recognizing that each Senator is free to choose 
the standard of proof that his or her conscience dictates, we submit 
that if the question is, as the managers would have it, whether the 
President has committed a crime, that standard should be proof beyond a 
reasonable doubt. And it is clear that such a standard, that is, proof 
to the level of certainty necessary to make the most significant 
decisions you face in life, cannot possibly be met here. The 
presentations last week demonstrated that the record is full of 
exculpatory facts and deeply ambiguous circumstantial evidence that 
will make it impossible for the managers to meet this standard or, in 
fact, any standard that you might in good conscience choose to apply 
here.
  Now, the managers have with great ingenuity spun out theories of 
wrongdoing that they have advanced repeatedly, persistently, 
passionately. But mere repetition, no matter how dogged, cannot create 
a reality where there is none. The factual record is before you. We 
submit that it does not approach the kind of case that you would need 
to justify the conviction and removal of the President from office. And 
calling witnesses is not the answer. All the evidence you need to make 
your decision is before you, documented in thousands of pages of 
testimony given under oath or to the FBI agents and Mr. Starr's 
prosecutors under penalty of law.
  These, then, are the four grounds for the motion to dismiss. I know 
many of these arguments are not new to you, and I will try to be brief 
as I review them.
  The question before this body requires solemnity on all of our parts. 
It inevitably creates no small measure of apprehension. In our Nation's 
political history, in our legal history, it is fair to say that few 
decisions of such overwhelming magnitude have been confronted by this 
body. There could be no matter more clearly placed in your hands alone 
by the Constitution, and on its resolution rests more than the 
political fate of William Clinton; there rests the course of our 
democracy in the coming years of the new century and for untold years 
thereafter.
  Constitutional history confirms that the decision before you was 
meant to be significant and difficult to make. It demonstrates that 
only the most extraordinary of charges warrants the most extraordinary 
of outcomes. Any question, any doubt, must be resolved in favor of the 
electoral will, for it is the will of the people, the people who have 
all sovereignty in our law, that in the end is the foundation of our 
democracy. And we submit that the doubt here is pervasive: Doubt about 
whether the charged conduct, efforts to conceal a private personal 
embarrassment, could reasonably be deemed a violation against the state 
at all, let alone a violation so severe as to compel removal; doubt 
about the constitutionality of the articles as drafted; doubt about the 
sufficiency of the managers' case; and that doubt upon doubt upon doubt

[[Page S967]]

makes a vote to dismiss the only fair choice.

  Let me turn then to the fundamental constitutional argument.
  The impeachment power was meant to remove the President of the United 
States from office only for the most serious abuses of official power 
or for misbehavior of such magnitude that the collective wisdom of the 
people would compel immediate discharge. One of America's leading 
professors of constitutional law, Professor Akhil Amar of the Yale Law 
School, has framed the problem poignantly and concisely, stating:

       The question to ask is whether [President Clinton's] 
     misconduct is so serious and malignant as to justify undoing 
     a national election [and] canceling the votes of millions.

  We know the answer. It was provided by Charles Black in his classic 
book on impeachment when he wrote that:

       Impeachment and removal should be reserved only for 
     offenses that so seriously threaten the order of political 
     society as to make pestilent and dangerous the continuance in 
     power of their perpetrator.

  James Madison made much the same point two centuries earlier, stating 
that an impeachment provision of some kind was ``indispensable'' 
because a President's ``loss of capacity or corruption . . . might be 
fatal to the Republic.''
  The statements and writings of the framers of our Constitution and 
centuries of scholarship and the meaning of that brief but so 
significant phrase, ``high crimes and misdemeanors,'' enable us to 
establish with solid assurance that the conduct charged against the 
President does not amount to an impeachable offense.
  Our argument today is a simple one: Ordinary civil and criminal 
wrongs may be addressed through ordinary civil and criminal processes, 
and ordinary political wrongs may be addressed at the ballot box or by 
public opinion. Only the most serious public misconduct, aggravated 
abuse of Executive power, is meant to be addressed through exercise of 
the Presidential impeachment power.
  The conduct here arises out of a private lawsuit. Let me talk for a 
moment about that lawsuit which is the backdrop for these proceedings.
  The Jones case arose out of an alleged incident that predated the 
President's first term as President. The charges at issue here arise 
out of the President's conduct in that lawsuit. No charge relates to 
his official conduct as President. Indeed, as we know, the Supreme 
Court told President Clinton that he could not delay defending the 
Jones lawsuit until he was out of office. And when it ruled that way, 
the Court emphasized just this very point. It made clear that he might 
have been able to delay or avoid the lawsuit if it had related to his 
official conduct, because the law provides various immunities for such 
lawsuits; but precisely because it related to his private actions, it 
would be allowed to go forward.
  In drawing that conclusion, interestingly, the Supreme Court actually 
looked to the wisdom of James Wilson, a framer, a Supreme Court 
Justice, and a constitutional commentator, and cited the distinction he 
drew between a President's acts performed in his ``public character,'' 
for which he might be impeached, according to Justice Wilson, and acts 
performed in his private character, to which the President is 
answerable, as any other citizen, in court.

  We agree that there might be extreme cases where private conduct 
would so paralyze the President's ability to govern that the 
impeachment power must be exercised, where the certainty of guilt and 
the gravity of the charge would leave no choice. But charges arising 
out of the President's efforts to keep an admittedly wrongful 
relationship secret are, by no analysis, of that caliber.
  Some have suggested that making this argument is the same as arguing 
that the President is above the law. That simply is not so. The often 
repeated statement that no man--or woman, I should add--is above the 
law is, of course, true. Once he leaves office, the President is as 
amenable to the law as any citizen, including for private conduct 
during his term of office. As my colleagues Mr. Ruff and Mr. Craig 
argued to you last week, if a grand jury should choose to consider 
charges against this President, his status as a former President will 
not prevent that consideration.
  But here is the point: Impeachment is not meant to punish an 
individual; it is a protection for the people; in Alexander Hamilton's 
words, a remedy for great ``injuries done to the society itself.'' It 
is, as your 19th century predecessor, Senator Garrett Davis, pointed 
out in the Andrew Johnson proceedings, ``the extreme remedy . . . 
intended for the worst political disorders of the executive 
department.''
  The House managers appear to argue that the President must be removed 
nonetheless, because to do otherwise places him above the law. But 
there is one thing that can be said with certainty about the 
impeachment power. Although it may have that result, it is not meant to 
punish the man, to set an example, or to provide a ``cleansing'' of the 
political process; it is meant to protect the state. If it is 
punishment the House managers seek, they are in the wrong place, in the 
wrong job, at the wrong time, and for the wrong reasons.
  A question has arisen whether, as a general matter, any violation of 
law demands removal because it would be a violation of the President's 
duty to take care that the laws be faithfully executed or a breach of 
the public trust. But, again, the history of the clause makes clear 
that the framers intentionally chose not to make all crimes or even all 
felonies impeachable.
  I suggest we would all agree that, in the broadest possible sense, a 
proven violation of criminal law is a violation of a public trust. But 
the framers consciously elected not to make impeachment the remedy for 
``all crimes and misdemeanors.'' When the framers wished to address all 
crimes, they knew how to do it, and they did it. In article IV, section 
2, the Constitution states that, ``A Person charged in any State with 
Treason, Felony, or other Crime'' is susceptible to extradition--``or 
other crime.'' The framers knew how to say it, but they didn't say it 
about impeachment, because that is not what they meant.
  Some also have argued that the experience of judicial impeachments in 
this body undermines this argument. They claim that judges have been 
removed for purely private conduct and that a President should be 
treated no differently. This argument completely misses the mark as 
well.
  By constitutional design, judges are very different from a President. 
Presidents are elected for a fixed term, while Federal judges serve 
with life tenure. Presidents are elected by the people in one of the 
great periodic exercises of national will, and their tenure is blessed 
as the choice of the people.
  Judges, on the other hand, are appointed and confirmed by the 
representatives of the people, but their selection does not represent a 
direct expression of the will of the people. Judges' tenure is 
conditioned on good behavior, while that of a President is not. And 
there is an obvious reason for this distinction. Life tenure, which was 
designed to assure judicial independence, plainly becomes a problem in 
the event of a judge who is not fit to serve. A President may be voted 
out by the people, a judge may not; hence the good behavior requirement 
and the duty upon the Congress to enforce it in those exceptional cases 
where it must be enforced.
  It is possible to debate forever whether the good behavior clause 
represents an independent basis for impeachment or whether, in the case 
of judges, it is a factor to be weighed when this body exercises its 
sound judgment to decide what constitutes a high crime or misdemeanor. 
But there is no need to resolve that dispute here. Either way, it is 
clear, as the Watergate impeachment inquiry report established, that 
the term ``high crimes and misdemeanors'' is given content by the 
context of the charge and the office at issue. Because of issues of 
legitimacy, accountability, and tenure, the framers decided that 
Federal judges needed the additional check of the good 
behavior clause--language they left out of the articles creating 
Congress and the Presidency.

  And the Presidency is, of course, different. Alexander Hamilton said, 
in Federalist 79, that a judge could be impeached for malconduct. But 
in the words of the Watergate Impeachment Inquiry Report--a report I 
remind you

[[Page S968]]

that Mr. Manager Canady has commended to your consideration--
Presidential impeachment is distinctive. The report stated--and I 
quote, because it is an important quote--``Because impeachment of a 
President is a grave step for the nation, it is to be predicated only 
upon conduct seriously incompatible with either the constitutional form 
and principles of our government or the proper performance of the 
constitutional duties of the presidential office. . . . The facts must 
be considered as a whole in the context of the office,'' the report 
concludes. The office matters. For judges, the good behavior standard 
comes in one way or the other. For the President, the standard is 
different.
  As I mentioned, Mr. Manager Graham candidly acknowledged last 
Saturday that reasonable people could disagree as to whether this 
President should be removed from office, even if they believe he acted 
as charged--reasonable people could disagree. In this connection, 
consider, if you will, the words of Senator William Pitt Fessenden, 
written 130 years ago. Senator Fessenden was one of the seven brave 
Republicans who crossed party lines to vote against the conviction of 
President Johnson in his 1868 impeachment trial. He wrote--and I 
quote--``the offense for which a Chief Magistrate is removed from 
office . . . should be of such a character as to commend itself at once 
to the minds of all right thinking men as, beyond all question, an 
adequate cause.'' Think about that phrase--``beyond all question.'' 
Where there is room for reasonable disagreement, there is no place for 
conviction.
  If many in this Chamber and in this Nation believe that these charges 
do not meet the bar of high crimes and misdemeanors, then the question 
must be asked, Why prolong this process?
  I would like to turn briefly now to two grounds for dismissal based 
on the manner in which the House drafted these articles. The first is 
that each of the articles contain several quite different charges. The 
House compounded its charges. It is tempting to ask how, in a matter of 
such importance, we can urge what might appear to be a procedural, 
highly technical argument like this one.
  There are several answers to that. The first is that it is neither 
``procedural'' nor ``highly technical.'' It goes to the very heart of 
our constitutional protections and raises concerns about fairness and 
the appearance of fairness in this proceeding as so many Senators have 
so eloquently noted in the past when the issue has arisen.
  As Senator Kohl stated in the Judge Nixon impeachment matter, in 
which a similar omnibus article was defeated--and I quote:

       The House is telling us it's OK to convict Judge Nixon on 
     Article III even if we have different visions of what he did 
     wrong. But that's not fair to Judge Nixon, to the Senate, or 
     to the American people. Let's say we do convict on Article 
     III. The American people--to say nothing of history--would 
     never know exactly which of Judge Nixon's statements we 
     regarded as untrue. They'd have to guess. What's more, this 
     ambiguity would prevent us from being totally accountable to 
     the voters for our decision.

  As the Senator said, that is an unacceptable outcome, one that was 
``not fair to Judge Nixon, to the Senate, or to the American people.''
  Judge Nixon was acquitted on this article. We suggest to you that the 
House is now asking this Senate to convict President Clinton on just 
such articles. And that is not fair either to President Clinton, to 
this Senate, or to the American people.
  The second response is that--even if this troubling problem were 
procedural--fair, constitutional procedures go to the heart of the rule 
of law. As the Supreme Court has stated, ``The history of liberty has 
largely been the history of observance of procedural safeguards.'' It 
would, indeed, be ironic if, in the course of this proceeding in which 
the vindication of the rule of law has so often been invoked, this body 
were to ignore an important procedural flaw.
  The legal basis for this argument is by now well known. Article I, 
section 3 of the Constitution provides that on articles of impeachment 
``no Person shall be convicted without the Concurrence of two-thirds of 
the Members present.'' This requirement is plain. There must be, in the 
language of the Constitution, ``Concurrence,'' which is to say, 
genuine, reliably manifested agreement among those voting to convict.
  Without clarity on exactly what the President would be convicted for, 
there can be no concurrence. These requirements of concurrence and a 
two-thirds vote are the twin safeguards of the framers' plain intent to 
assure that conviction not come easily.
  And let there be no doubt, these articles present textbook examples 
of a prosecutorial grab bag. Look at article II, which, by its terms, 
charges obstruction of the Jones litigation. It presents six topics 
related to the Jones litigation and one related to the very separate 
issue of grand jury obstruction. The first six acts alleged are 
unrelated in time or alleged intent to the seventh. Under no 
conceivable theory are they part of the same scheme, and no one ever 
has claimed them to be. But as it is drafted, and as it must be voted 
on by this body, under the Senate rules, the article would allow 
certain Senators to convict on obstruction of the Jones case and others 
on grand jury obstruction. That is not concurrence in a vote on an 
article, as the Constitution demands it. An indictment against any 
American drafted like these articles could not go near the jury. It 
would be dismissed. And no lesser standard should apply here.
  A second fatal flaw in the drafting is their complete lack of 
specificity, which makes it impossible to know precisely what the 
President is alleged to have done wrong. This defect is most 
troublesome in the article I perjury charges, which never simply state 
what the President said that was allegedly perjurious. The defect is a 
plain and obvious constitutional one: The House of Representatives has 
unconstitutionally neglected its ``sole'' power to impeach and 
delegated to the House managers that which cannot constitutionally be 
delegated--the power to decide what the House meant. The result has 
been what can charitably be described as a fluid approach to the 
identification of charges against the President. The House majority and 
its managers have sought to add, delete, amend, expand and contract the 
list as this matter has proceeded from Mr. Starr, to the committee, to 
the full House, to this body.
  They also, mystifyingly, have insisted on couching their charges as 
examples. How on Earth can an accused defend against examples? Where is 
the notice? Where is the due process? And no sooner was this very 
concern raised here by Mr. Ruff than they did it again. This is quite 
extraordinary.
  In response to Mr. Ruff's challenge, the managers put out a press 
release, on January 19, purporting to list allegedly perjurious 
statements on which you are to vote. And what did they say? They 
offered more examples. They said in response--and I quote--``Here are 
four examples of perjurious statements made to the grand jury:''
  Ladies and gentlemen, almost 40 years ago, the Supreme Court made 
clear that this kind of charging is unacceptable. When an indictment 
leaves so much to the imagination of individuals, other than the 
constitutionally designated charging body, it must be dismissed. Again, 
no lesser standard should apply here.
  Our fourth ground for dismissal is based on the facts. The evidence, 
in the tens of thousands of pages before you, establishes that the case 
against the President cannot be proven with any acceptable degree of 
certainty. The record is filled with too much that is exculpatory, too 
much that is ambiguous, too much from the managers that requires 
unfounded speculation.

  A very brief look at the articles and the facts makes clear that in 
light of the uncontested exculpatory facts, such as the direct denials 
from Ms. Currie, from Mr. Jordan, and from Ms. Lewinsky of various 
alleged misconduct, the managers cannot possibly meet their burden of 
proof here. Look briefly at article I. Much of it challenges the 
President's assertions of his own state of mind, his understanding of 
the definition given to him, his understanding of the meaning of a 
word, his legal opinion of his Jones testimony, his mindset during 
statements of his lawyer, Robert Bennett. The managers offer 
speculation and theories about these matters, but you are not here to 
try speculation and theories. You are here to try facts. And the facts 
do not support their theories.
  Other claims in article I are so insubstantial as to be frivolous and 
unworthy of the time and attention of this

[[Page S969]]

historic body. Certain answers about the particulars of the admitted 
intimate relationship between the President and Ms. Lewinsky--whether 
their admitted inappropriate encounters were properly characterized as 
occurring on ``certain occasions'' is but one example--could not 
possibly have had any bearing on the Starr investigation. These answers 
were even irrelevant, immaterial, to Mr. Starr.
  Remember, in the grand jury the President admitted to the 
relationship, admitted it was improper, admitted it occurs over time, 
admitted he had sought to hide it, admitted he had misled his wife, his 
staff, his friends, the country. But how it began, exactly when it 
began, how many intimate encounters there were, whether there were 11 
or 17 or some other number and with what frequency, these are details 
irrelevant to the Starr investigation, and I must say, irrelevant to 
your decision whether to remove the freely elected President of the 
United States.
  There has been much discussion about the Jones deposition here and 
whether it, too, is a part of article I. The point is a simple one. The 
House of Representatives exercised its constitutional authority, and in 
a bipartisan vote defeated an article of impeachment based on the 
answers in the Jones deposition. Those answers are not before you and 
the managers' sleight of hand cannot now put them back into article I. 
The article charges only the statements made in the grand jury about 
that deposition. The managers ask you to look at one response: The 
President's lawyerly assertion that the Jones deposition was not 
legally perjurious, however frustrating or misleading, and to read that 
as an affirmation of every answer he gave. But the grand jury testimony 
must be read as a whole.
  What did the President convey during that testimony? Certainly not 
that he was standing behind every word in the Jones deposition as the 
whole truth. He spent 4 hours in the grand jury explaining that 
testimony--adding to it, clarifying it, discussing the confusing 
deposition questions and answers, and pointing out his efforts to be 
literally truthful, if not forthcoming, explaining what he had tried to 
do, the line he had tried to walk, however successfully or 
unsuccessfully. He laid it all out. He was not asked by Mr. Starr to 
reaffirm or adopt the earlier testimony, and he did not reaffirm or 
adopt it.
  This brings us to the last issue in article I, the so-called touching 
issue. My colleague, Mr. Craig, has talked at length about the legal 
and practical obstacles to a case based on an oath against an oath. 
Whether compelled by law or practice, the rule reflects the commonsense 
proposition that there will always be a reasonable doubt as to the 
truth when the case rests merely on an oath against an oath. That is 
why seasoned prosecutors said in the House of Representatives that they 
would never bring such a case. That is why you need no more information 
to conclude that conviction on that basis will not be possible.

  The evidence also undermines the allegations of article II. My 
colleagues, Ms. Mills and Mr. Kendall, made a detailed review of the 
allegations in each of the seven subparts of article II. They went over 
the evidence in great detail, and I am certainly not going to repeat 
that here. They pointed to the significant amount of direct evidence in 
the record that controverts the claims made in this article, most 
notably the consistent statements by Ms. Lewinsky that no one ever 
asked, suggested, or encouraged her to lie, and that no one ever 
promised her a job for her silence.
  They demonstrated that with regard to the transfer of gifts, the 
testimony of Ms. Lewinsky and Ms. Currie has consistently been 
inconsistent, but that even Ms. Lewinsky has acknowledged it was she 
who was concerned about the gifts and who raised the issue with the 
President. And the fact that the President gave Ms. Lewinsky more gifts 
on December 28 simply cannot be reconciled with any theory of the 
managers' case.
  Ms. Mills reviewed the evidence concerning the President's 
conversation with Ms. Currie on the Sunday after the Paula Jones 
deposition. However ill-advised that conversation might have been under 
the circumstances, it was not criminal. The President was motivated by 
his own anxieties and by a desire to find out what Ms. Currie knew in 
anticipation of the media storm he feared would break, as it surely 
did. Contrary to the suggestion of Mr. Manager Hutchinson, Ms. Currie 
had not yet been subpoenaed at the time of that conversation. Ms. 
Currie was not on any Jones case witness list at the time of the 
conversation. She testified that she felt absolutely no pressure to 
change her account during that conversation. She never testified that 
she felt uncomfortable--again, contrary to the suggestion of Mr. 
Manager Hutchinson. She was not a witness. There was no pressure. There 
is a completely reasonable explanation.
  Let me be clear here: There is no evidence that the President ever 
asked Ms. Lewinsky to file a false affidavit or told her to give false 
testimony if she appeared as a witness. Both believed Ms. Lewinsky 
could file a limited but true affidavit that might--might--avoid a 
deposition in the Jones case. While the two had discussed cover stories 
to explain Ms. Lewinsky's visits, Ms. Lewinsky never testified that 
they discussed the cover stories in the context of the possibility of 
her testifying personally, as article II alleges.
  Now you have heard in detail from Mr. Craig and Mr. Kendall about the 
fleeting moment in the Jones deposition when Mr. Bennett tried 
unsuccessfully to prevent the President being questioned about Ms. 
Lewinsky by citing her affidavit. The judge immediately overruled the 
objection. It did not obstruct in any way the Jones lawyers' ability to 
question the President.
  The statement had no effect. And the tape of the President cannot 
disprove the President's testimony that he wasn't paying attention. He 
doesn't comment, concur, or even nod. With a weak case at hand, the 
managers have tried to turn a blank stare into a high crime.
  The last subpart of article II is flawed in many respects: The 
article alleges obstruction of the Jones case, but the President's 
misleading statements to his White House aides about Ms. Lewinsky had 
no effect on that case at all. In any event, the effect of the 
President's statements on his aides was no different than on the 
millions of Americans who had heard and seen the President make similar 
denials on television.
  And finally, the subpart claims obstruction of the grand jury, 
whereas the whole point of article II is alleged obstruction of the 
Jones case. As I asked before, what is it doing here?
  As to Ms. Lewinsky's job search, all the managers have presented it 
is a theory, a hypothesis in search of factual support.
  The direct evidence is clear and uncontradicted. Ms. Lewinsky, Mr. 
Jordan, the President, and people at the New York City companies Ms. 
Lewinsky contacted all testified that there was no relation of any of 
the job search activity to the Jones case--none. Not a single witness 
supports the managers' theory. As we demonstrated, their core theory 
that the job assistance intensified after the Court's December 11 order 
was based on plain and simple error. And without that support, the 
theory collapsed.
  No doubt, the managers' response will be that that is why witnesses 
are needed, to help the managers make their case. But witnesses will 
not fill the void in the evidence:
  First, because the evidence, as we have shown, is overwhelmingly 
uncontested. If there is no dispute, why do witnesses have to be 
questioned at all? House Majority Counsel Schippers himself made this 
point when speaking of the very same transcripts and FBI interviews 
that you all have before you. He stated to the Judiciary Committee: 
``As it stands, all of the factual witnesses are uncontradicted and 
amply corroborated.''
  Second, because the actual disagreements--for example, what was in 
the President's mind in his deposition?--are about conclusions that 
must be drawn from the undisputed evidence, not disputes in the 
evidence itself. More evidence will not inform a judgment on the 
President's state of mind.
  Third, because those witnesses with testimony pertinent to the 
charges have already repeated their testimony again and again and 
again--in some instances, 5 or 10 times--over and over and over to FBI 
agents, to prosecutors, to grand jurors. Experienced career 
prosecutors, trying to make their best

[[Page S970]]

case against the President, questioned scores of witnesses. They 
compiled tens of thousands of pages of evidence. They questioned Ms. 
Lewinsky on at least 22 separate occasions. They questioned Mr. Jordan 
on at least five occasions. They questioned Ms. Currie on at least 
eight occasions. On one day alone--July 22, 1998--prosecutors asked Ms. 
Currie more than 850 questions, and that was only 1 of her 5 
appearances before the grand jury or FBI agents. And they did, in 
fact--contrary to the suggestion of the managers--question witnesses, 
including Ms. Lewinsky, after the President's testimony to the grand 
jury.
  These witnesses whom I have mentioned, who were questioned 
repeatedly, are not alone. They could not possibly add to their 
testimony, or amend it, in any significant way that could alter the 
judgment you could make today. Yet, it is the hope that these witnesses 
will be forced to change their testimony, to provide evidence where 
there now is none, that drives the current desire to question them.
  Let me make a few final points about this witness issue. ``Bringing 
in witnesses to rehash testimony that's already concretely in the 
record would be a waste of time and serve no purpose at all.'' That is 
our argument, but those are not my words, they are the words of Mr. 
Manager Gekas, spoken just last fall, talking about this same factual 
record you have before you.
  And Mr. Manager Gekas was correct. ``We had 60,000 pages of testimony 
from the grand jury, from depositions, from statements under oath. That 
is testimony that we can believe and accept. Why re-interview Betty 
Currie to take another statement when we already have her statement? 
Why interview Monica Lewinsky when we had her statement under oath, and 
with a grant of immunity that, if she lied, she would forfeit?''

  Again, that is our argument, but, again, those are not my words, 
those are the words of Chairman Hyde. He, too, was correct. Those words 
apply with equal force today. The witnesses are on the record. Their 
testimony is known. There is no need to put them through the ordeal of 
testimony again.
  The House managers, no doubt, will answer that that was then, this is 
now. But that is not good enough. The House had a constitutional duty 
to gather and assess evidence and testimony and come to a judgment as 
to whether it believed the President should be removed from office--not 
to casually and passively serve as a conveyor belt between Ken Starr 
and the U.S. Senate, not to ask this body to do the work the House 
failed to do.
  The actual power to remove the President resides here, of course. But 
the power to take that first step rests with the House. And the House 
exercised it: The articles explicitly find that certain conduct 
occurred and that that conduct warrants ``removal from office and 
disqualification to hold and enjoy any office of honor, trust, or 
profit under the United States.'' If there was any doubt about the 
testimony on which they based their judgment in reaching that 
conclusion, such doubt should have been resolved before any Member rose 
to say ``aye'' to an article of impeachment calling, for the first time 
in 130 years, for the Senate to decide on the removal of the President.
  The President did not obstruct justice. The President did not commit 
perjury. The President must not be removed. The facts do not permit it.
  Now, ladies and gentlemen of the Senate, I hope I have outlined 
clearly for you some of the many valid grounds on which you might base 
a decision to vote for the motion offered by Senator Byrd.
  On constitutional grounds, the matters simply don't meet the test of 
high crimes and misdemeanors, as specified by the framers or 
interpreted by hundreds of historians. As a matter of law, these 
articles are defective. In a court, they would be dismissed in a 
heartbeat for vagueness and for being prosecutorial grab bags.
  The evidence itself, after being gathered in what may be one of the 
largest criminal investigations in this country's history, fails to 
offer a compelling case and is based largely on weak inferences from 
circumstantial evidence. Each of these is reason enough to end this 
trial now, without further proceedings.
  As Senator Bumpers said more personally and eloquently than I could 
hope to, the President has been punished; he is being punished still--
as a man, as a husband, as a father, as a public figure. Beyond his 
family, you have been reminded that the criminal law will still have 
jurisdiction over Bill Clinton the day he leaves office. And while I am 
confident the case would have no merit in a court of law, that is the 
venue in which justice may be sought against an individual.
  So the sole question you are faced with is the most important one: Do 
you, for the first time in 210 years of our freedom, set aside the 
ultimate expression of a free people and exercise your power to remove 
the one national leader selected by all of us?
  If you don't believe this body should remove the President, or if you 
believe that no amount of requestioning of witnesses or torturing facts 
will change enough minds to garner the two-thirds majority necessary to 
remove the President, or if you simply have heard enough to make up 
your mind, then the time to end this is now.
  The President has expressed many times how very sorry he is for what 
he did and for what he said. He knows full well that his failings have 
landed us in this place, and he is doing all he can to set right what 
he has done wrong.
  The entire Nation--indeed the world--is now looking to this body, to 
this Chamber, to this floor, for sound judgment, and we are asking you 
not to answer a serious personal wrong with a grievous constitutional 
wrong. When we ask you to vote for Senator Byrd's motion to dismiss, we 
do not mean that nothing ever happened, that this is no big deal--and 
that is where we lawyers have done a disservice to the language--
because this is a big deal. It is a very big deal. Punishment will be 
found elsewhere. Judgment will be found elsewhere. Legacies will be 
written elsewhere. None of that will be dismissed. None of that can 
ever be dismissed.
  We ask you to end this case now so that a sense of proportionality 
can be put back into a process that seems long ago to have lost all 
sense of proportionality. We also ask you to end the case now so that 
the family members and others who did no wrong can be spared further 
public embarrassment.
  We also ask you to end this case now so that the poisonous arrows of 
partisanship can be buried and the will of the people can be done--
allowing all of you to spend your full days on the most pressing issues 
of the country.
  You have heard the charges in full; heard the defense. Now is the 
time to define how the national interests can best be served by 
extending this matter indefinitely or ending it now. We submit that it 
is truly in the best interest of this Nation to end this ordeal in this 
Chamber at this time and in this way.
  Thank you.
  Mr. LOTT addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Could I inquire? Is there further presentation from the 
White House counsel, or will the time be used for concluding remarks by 
the House managers?
  The CHIEF JUSTICE. The White House counsel has 6 minutes remaining; 
the managers have reserved 36 minutes.
  Mr. Counsel RUFF. There will be no further presentation, Mr. Chief 
Justice.


                                 Recess

  Mr. LOTT. In view of that, Mr. Chief Justice, I understand the White 
House counsel will have no further presentation to make, so what is 
left would be the concluding remarks by the House managers. I would 
like for us, when that is concluded, to go right into the votes.
  In view of that, I think it would be a good idea to take a 15-minute 
break at this point. And I ask for that.
  There being no objection, at 4:12 p.m., the Senate recessed until 
4:38 p.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Mr. Chief Justice, I believe we are ready now for the 
closing part of the argument by the House managers on the motion to 
dismiss.
  The CHIEF JUSTICE. The Chair recognizes the House managers. Mr. 
Hutchinson.
  Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice, Senators. My

[[Page S971]]

fellow Manager Graham has extended me a few minutes before he comes up 
here just to allow me to respond to a couple of factual assertions by 
the White House counselors during the recent presentation. I know that 
there was a reference made to the impeachment proceedings of former 
President Nixon, and there were various articles that were considered. 
But one of them that I don't believe was talked about was obstruction 
of justice, and I believe that the Senators in this Chamber would agree 
that obstruction of justice has historically been a basis for 
impeachment of public officials because of the impact that it has on 
the administration of justice. And that was historically true during 
the time of the impeachment of President Nixon. It was an issue during 
that time and it should be no less of a concern this year, in 1999.
  Now, when I listen to a defense attorney make a presentation, 
oftentimes I will listen to what they didn't cover as much as what they 
did cover. And you always have to go back to that because many times 
that points to a big gap of something they just can't explain. As I 
listened to the presentation, of course they addressed the assertion 
that Ms. Currie, Ms. Betty Currie was, in fact, not a witness at the 
time the President called her in and went through the questioning of 
her after his deposition on January 17. But, yet, it has been clearly 
established that she was a known witness at the time. Now, they hoped, 
they prayed, they wished, they counted for the fact that that subpoena 
would never be uncovered. But the subpoena was uncovered. The fact was 
established that she was put on the witness list and that she was a 
known witness at the time. But the fact is, it does not matter. She was 
a prospective witness, and that was what the President did when he came 
back and talked to her.

  But what has never been addressed--has never been addressed--is why 
in the world did the President believe he needed to talk to her a 
second time. It was one time the questioning, but 2 days later she was 
brought in and taken through the same paces. The answer was, ``Well, he 
explained it.'' Well, he tried to explain why he did it the first time, 
he was trying to get information. There could be no explanation for the 
second instance of which she was called in and questioned. She was a 
witness, she was a known witness and she had to be talked to, and it 
was done twice.
  Another thing that I do not recall ever being mentioned, they argue 
that, ``Well, there is no evidence of favors on a job search,'' and I 
believe that is not supported by the record. How many times has the 
President's attorneys discussed the description and the report by Mr. 
Vernon Jordan to the President, ``Mission accomplished''? I do not 
believe they have ever discussed that particular terminology. I do not 
believe they have ever discussed the terminology, the call from Mr. 
Vernon Jordan to Mr. Perelman saying, ``Make it happen if it can 
happen.''
  So I think there are some gaps in their defense and, clearly, you 
understand that the facts have supported each of the allegations of 
obstruction that we have set forth.
  They argue that, ``Well, there was no evidence of any false 
affidavit.'' Whether it is evidence that an affidavit was encouraged by 
the President of the United States, he suggested the affidavit and, as 
of necessity, it would have to be false if it was going to be 
accomplishing the intended purpose.
  They are asking you in this motion to dismiss to ignore the evidence 
that we have presented, to ignore the testimony, the documentary 
evidence, to ignore the common sense and simply to accept the denials 
of the President of the United States. That is not what a motion to 
dismiss is about. We ask that we move forward to consider the full 
development of these facts.
  I yield to Mr. Graham.
  The CHIEF JUSTICE. The Chair recognizes Mr. Graham.
  Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. How much time do we 
have left?
  The CHIEF JUSTICE. The House managers have 32 minutes remaining.
  Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. To my colleagues, 
my chairman wants 11 minutes. So, for my own sake, please let me know 
when we get close.
  (Laughter.)
  We meet again to discuss a very, very important event in our Nation's 
history. To dismiss an impeachment trial under these facts and under 
these circumstances would be unbelievable, in my opinion, and do a lot 
of damage to the law and to the ultimate decision this body has to 
make: whether or not Bill Clinton should be our President.
  As I understand the general nature of the law, the facts and the law 
break our way for this motion. What I would like to discuss with you is 
whether or not a reasonable person could believe that Bill Clinton 
should not be our President and the facts that have been presented rise 
to the level of creating serious doubts about whether he is a criminal, 
not just a bad man who did bad things. For he is a good man in some 
ways, as all of us are, and he has done some things that everybody in 
this body will condemn roundly.

  America needs no more lectures about Bill Clinton's misconduct, about 
his inappropriate relationship. We need no more lectures about his 
sins. We all have those. We need to resolve, Is our President a 
criminal? That is harsh, but the facts bear out those statements.
  When you dismissed the judges for perjury and filing statements under 
oath, some of you said some very harsh things about those judges, not 
because you are harsh people, but because their conduct warranted it.
  One thing I am not going to say, and I will quit this job before I do 
this, is, I am not going to run over anybody's conscience when they are 
exercising it as they deem appropriate for the good of this Nation. My 
name has been brought up a couple of times about whether or not 
reasonable people can disagree with me and still be reasonable about 
what we should do in this case. I have told you the best I can that 
there is no doubt these are high crimes, in my opinion. This is a hard 
decision for our country, but when I first spoke to you, I thought we 
would be better off if Bill Clinton left office, and I want the chance 
to prove to you why. Give me a chance to prove to you why I believe 
that, why my colleagues voted our conscience to get this case to where 
it should be, not swept under a rug, but in a trial to a disposition.
  I have lost no sleep worrying about the fact that Bill Clinton may 
have to be removed from office because of his conduct. I have lost tons 
of sleep thinking he may get away with what he did. But the question 
was: Could you disagree with Lindsey Graham and be a good American, in 
essence? Absolutely. You can disagree with me on abortion, and Mr. 
Hyde, and I am not going to trample on who you are, because I know that 
the liberal wing of the Democratic Party and the moderate wing of the 
Republican Party have different views than I do.
  But I didn't come up here to run you down. I came up here to build my 
country up the way I think it needs to be built up.
  Ladies and gentlemen of the Senate, if you will listen to our case, 
if you will let us explain why we have lost no sleep asking for this 
President to be removed and why we voted to get it here and you 
disagree with me at the end of the day, I will never ever say you don't 
love your country as much as I do. That is what that statement was 
meant to convey, and it will convey that until I am dead and gone.
  The idea that 130 years ago a Senator took a vote and made a 
statement that the only way you can remove a President is it has to be 
unquestionable in anybody's mind tells me he sure thought a lot of 
himself. I am glad to see that stopped in the Senate. One hundred 
thirty years later, we don't have people like that anymore. What that 
conveyed to me was that a person made a hard decision and tried to 
create a standard that slams somebody else who came out differently.
  I hope that is not what this is all about. He goes down in history, 
but I wouldn't want that as part of my epitaph, that when I voted my 
conscience, I reached a level that if you didn't go where I was, there 
is something wrong with you.
  What did Bill Clinton do, and why are we all here? Are we here 
because of Ken Starr, because of Lindsey Graham, because of--why are we 
here? We are here because William Jefferson Clinton, in my opinion--we 
are here because on our watch in the House, the President

[[Page S972]]

of the United States, when he was a defendant in a lawsuit, instead of 
trusting the legal system to get it right, did everything possible, in 
my opinion, to undermine the rule of law, including going to a grand 
jury in August of last year and committing perjury after people in this 
body and prominent Americans said, ``Stop it.'' And now we are here to 
say, ``Well, we really didn't mean it. The motion to dismiss means 
we're sort of just kidding, Mr. President.''
  If you believe he is not guilty of these offenses based on this stage 
of the trial, then you ought to grant the motion to dismiss, but you 
will be changing the law as we know it today. We haven't had a chance 
to present our case, really, and all the facts should break our way. 
You can believe this if you would like. They stood up here and argued 
that the conversation between President Clinton and his secretary, 
Betty Currie, was to find out what she knew to refresh his memory. If 
you think that when the President goes to Betty Currie and makes the 
following statement, ``Monica wanted to have sex with me and I couldn't 
do that,'' that he is trying to figure out what she knew and is trying 
to refresh his memory, you can do that. I would suggest that ``ain't'' 
reasonable. If you believe that he wanted to figure out whether he was 
alone or not with her and he had to ask Betty, that is not reasonable. 
That is a crime.

  Let me tell you the subtleties of this case, things that really tell 
you a lot about why we are here--William Jefferson Clinton. Before we 
get into the subtleties of this case, Senator Bumpers made a very 
eloquent speech about the ups and the downs of this case and about his 
relationship with the President and how close it was, and the human 
nature of what is going on here. But here is what he said:

       You pick your own adjective to describe the President's 
     conduct. Here are some that I would use: indefensible, 
     outrageous, unforgivable, shameless.

  How about illegal?
  And he says:

       I promise you the President would not contest any of those 
     or any others.

  When you put in the word ``illegal,'' everything is a big 
misunderstanding.
  Take this case to a conclusion, so America will not be confused as to 
whether or not their President committed crimes. There will be people 
watching what we do here, and they will be confused as to whether or 
not the conversation between President Clinton and Ms. Currie was 
illegal or not. Let us know. That is so important.
  Let us know--when he went to Monica Lewinsky and talked about a cover 
story--if that is what we want to go on here every day. And a trial 20 
months from now does us no good, because this happened when he was 
President, ladies and gentlemen. This happened when he raised the 
defense, ``You can't sue me because I'm President.''
  And what did he do after that defense was taken away from him by the 
Supreme Court? He went back to somebody who is very loyal to him, 
somebody who admires him, somebody whom you and I pay her salary--his 
secretary. And he put her in a situation, through misleading her, that 
she was going to pass on his lies. That is not what we pay her to do. 
He put her in a situation where she was going to incur legal costs 
because he cared more about himself than he did his secretary. He put 
his Cabinet Members, he put the people who work for him, in a horrible 
spot.
  The subtleties of this case. Let me tell you one of the subtleties of 
this case. And this was read by the defense in this case:

       The President had a followup conversation with Mr. Morris 
     during the evening of January 22, 1998, 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 because ``there's some 
     slight chance that she may not be cooperating with Starr and 
     we don't want to alienate her by anything we're going to put 
     out.''

  And they were trying to tell you that ``ain't'' bad, that is a good 
thing. The best you can get from that statement is the President, when 
approached with the idea of blasting her, said, ``Let's wait.''
  The subtleties in this case. Who is this young lady? His consensual 
lover. But this case started not about consensual loving. This case 
started about something far from consensual loving. This case started 
about something like a Senator who ran into problems with you all. And 
if you will let us develop our case, you may have a hard time 
reconciling those two decisions. But that is up to you.

  Please don't dismiss this case. For the good of this country, for the 
good of the law, let us get to what happened here.
  John Podesta--the subtleties of this case--he talked to him about 
what happened, and he said, ``I had no relationship with her 
whatever.'' Everybody who went into that grand jury, who talked to Bill 
Clinton, was lied to. And they passed those lies on to a Federal grand 
jury. You know what? In America that is a crime, even if you are 
President. And you need to address whether that happened or not. Don't 
dismiss this case.
  But you know what is even more subtle is that John Podesta, somebody 
who is very close to him, once he said nothing happened, felt the need 
to ask one more question--and pardon me for saying this--``Does that 
include oral sex?'' That says a lot about what Mr. Podesta thinks about 
Mr. Clinton, because he felt he had to go one step further, and in his 
grand jury testimony he tells us the President took that behavior off 
the table.
  Some of you are worried about the perjury charge in this case. Let me 
tell you right now, you should have no worries, because you have a 
dilemma on your hands that is easy to resolve in terms of whether or 
not the President committed perjury in the grand jury. If you believe 
that he said that he was truthful when he said, ``I never lied,'' or, 
``I was always truthful to my subordinates, to the people that work for 
me, to my aides,'' then when he told John Podesta, ``Our relationship 
did not include oral sex,'' he was being truthful. If he was being 
truthful to John Podesta, he lied through his teeth about everything 
else in the grand jury when he considered or when he approached the 
grand jury with the idea that, ``Our relationship was of one kind of 
sex but not the other.'' He told John Podesta it wasn't there at all.
  You pick the lie, but it is there. And if you can reconcile that, you 
are better than I am. That is up to you all. And does it really matter? 
So what? I think it matters a great deal if you are suing for sexually 
harassing somebody, and they are on to the fact that you can't control 
yourself enough to stop it 4 or 5 years after you are sued, and you are 
doing it in the White House with somebody half your age. I think that 
would matter. Maybe that is the difference between getting bamboozled 
in court and having to pay $850,000.
  People are going to be confused if we don't bring this case to a 
conclusion. I suggest to you, it matters a great deal, that any major 
CEO, any low-level employee of any business in the country, would have 
been tossed out for something like that. But I know he is the 
President. Electing somebody should not distance them from common 
decency and the rule of law to the point that, when it is all over 
with, you don't know what you have got left in this country.
  Is that what you want to do in this case? Just to save this man, to 
ignore the facts, to have a different legal standard, to make excuses 
that are bleeding this country dry?
  The effect of this case is hurting us more than we will ever know. Do 
not dismiss this case. Find out who our President is. Come to the 
conclusion, not that it was just bad behavior, it was illegal behavior. 
Tell us what is right. Tell us what is wrong. Give us some guidance. 
Under our Constitution, you don't impeach people at the ballot box, you 
trust the U.S. Senate. And I am willing to do that. Rise to the 
occasion for the good of the Nation.
  Thank you very much.
  The CHIEF JUSTICE. Do the House managers have any additional 
presentation?
  Mr. Manager GRAHAM. Yes. I am sorry. Mr. Chief Justice, I now yield 
to Manager Hyde.
  The CHIEF JUSTICE. The Chair recognizes Manager Hyde.
  Mr. Manager HYDE. Thank you, Mr. Chief Justice.
  Mr. Ruff, and counsel, and distinguished Senators, I want to be very 
candid with you, and that may involve diplomatic breaches because I am

[[Page S973]]

parliamentarily illiterate. But nonetheless, I looked at this motion to 
dismiss and I was astounded, really. If the Senate had said something 
similar to the House, it would certainly have received such treatment 
as comports with comity, and I don't know enough about comity to wave 
that flag, but I don't want to waive my rights to raise that issue, 
anyway.
  I know Black's Law Dictionary is a resource book for all of us, but I 
looked in the Thesaurus about ``dismiss'' and I came up with 
``disregard, ignore, brush off.'' I just was surprised that this motion 
is here now before we conclude the case.
  Some years ago when I was trying lawsuits, I appeared before a judge 
in Chicago. My opponent was an oldtimer who was just mean--a good 
lawyer, but he was mean--and the judge interrupted him in one tirade 
and he said, ``Counsel, I have a lot of respect for you. I wish you had 
a little respect for this court.'' I sort of feel that way. I sort of 
feel that we have fallen short in the respect side because of the fact 
that we represent the House, the other body, kind of blue-collar 
people, and we are over here trying to survive with our impeachment 
articles.
  The most salient reason for defeating this motion is article I, 
section 3 of the Constitution which says that the Senate shall have the 
sole power to try--to try--all impeachments. Now, a trial, as I 
understand it, is a search for truth, and it should not be trumped by a 
search for an exit strategy.
  It seems to me this motion elevates convenience over constitutional 
process and by implication ratifies an unusual extension of sovereign 
immunity. If these articles are dismissed, all inferences in support of 
the respondents, in support of us, the managers, should be allowed; and 
if you allow all reasonable inferences in our favor, what kind of a 
message does it send to America to dismiss the articles of impeachment? 
Charges of perjury, obstruction of justice are summarily dismissed--
disregarded, ignored, brushed off. These are charges that send ordinary 
folk to jail every day of the week and remove Federal judges. But I can 
see this President is different. But if the double standard is to 
flourish on Capitol Hill, I don't think we have accomplished a great 
deal.
  Yes, it is cumbersome. These proceedings are archaic in many ways. 
The question period was something out of the Old Bailey, I guess. I 
don't know. But democracy is untidy. I will stipulate that. It is 
untidy. But it is also a blessing. Impeachment and trial by the Senate 
were devised by our framers to make this difficult process as 
definitive as possible.
  ``Let's get the matter behind us.'' That is a mantra. That is a 
cliche. We all say it. You won't get it behind you if you dismiss this 
without voting on the articles. You guarantee contention. You will 
never get it behind us. Vote these articles up or down. That is the 
only way they really get it behind us.
  What this is--this motion--is a legal way of saying, ``so what'' to 
the charges that we levied here. Now, look at what these charges are. 
So what that the President violated his oath of office and willfully 
corrupted and manipulated the judicial process for his personal gain 
and exoneration. So what that President Clinton willfully provided 
perjurious, false, and misleading testimony to the grand jury on 
several topics. So what that the President corruptly encouraged a 
witness in a Federal civil rights action brought against him to execute 
a sworn affidavit in that proceeding that he knew to be perjurious, 
false, and misleading. So what that the President encouraged a witness 
to lie to the grand jury and conceal evidence. So what that the 
President has undermined the integrity of his office, has brought 
disrepute on the Presidency, has betrayed his trust as President, and 
has acted in a manner subversive to the rule of law and justice, to the 
manifest injury of the people of the United States.

  That is an awful lot to dismiss with a brushoff, to ignore with a 
mere ``so what.''
  No, it may be routine. We certainly don't have enough experience in 
these impeachment matters, and thank God for that. It may be routine to 
file a motion to dismiss. But I take very seriously a motion to 
dismiss, especially when it is offered by the very distinguished 
Senator who did that. But I hope in a bipartisan way, I would hope some 
Democrats would support the rejection of this motion, as difficult as 
it is, because I don't think this whole sad, sad, drama will end. We 
will never get it behind us until you vote up or down on the articles. 
And when you do, however you vote, we will all collect our papers, bow 
from the waist, thank you for your courtesy, and leave and go gently 
into the night. But let us finish our job.
  Thank you.
  Mr. WELLSTONE addressed the Chair.
  Mr. LOTT. Parliamentary inquiry, Mr. Chief Justice Rehnquist.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. I believe under the agreement we entered into the next 
order of business, then, would be the vote on the motion by Senator 
Harkin to go into open session; is that correct?
  The CHIEF JUSTICE. The managers have used their time. The Chair 
recognizes the Senator from Iowa, Mr. Harkin.


                      Motion to Suspend the Rules

  Mr. HARKIN. Mr. Chief Justice, in accordance with rule V of the 
Senate Standing Rules, I and Mr. Wellstone filed a notice of intent to 
move to suspend the rules solely regarding the debate by Senators on 
the motion to dismiss, so Senators can have open rather than a closed 
debate on this issue.
  This motion is offered on behalf of myself and Senators Wellstone, 
Feingold, Leahy, Lieberman, Johnson, Inouye, Schumer, Wyden, Kerrey, 
Bayh, Torricelli, Lautenberg, Robb, Dodd, Murray, Dorgan, Conrad, 
Kennedy, Kerry, Durbin, Boxer, Graham, Bryan, Landrieu, and Mikulski.
  My motion is at the desk. However, Mr. Chief Justice, I send a 
corrected copy of my motion to the desk. There were two typos in it; I 
want to have it corrected.
  Mr. LOTT addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. If it is appropriate at this point, I ask the Senators if 
they would remain at their desks so we can go through this vote, and I 
ask unanimous consent, since we are all here, to reduce the time for 
the vote from 15 minutes to 10 minutes.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  Is there objection to the Senator from Iowa modifying his motion?
  Without objection, it is modified.
  The clerk will report the motion.
  The legislative clerk read the motion, as modified, as follows:

       I move to suspend the following portions of the Rules and 
     Procedure and Practice in the Senate When Sitting on 
     Impeachment Trials in regard to debate by Senators on a 
     motion to dismiss during the trial of President William 
     Jefferson Clinton:
       (1) The phrase ``without debate'' in Rule VII;
       (2) The following portion of Rule XX: ``, unless the Senate 
     shall direct the doors to be closed while deliberating upon 
     its decisions. A motion to close the doors may be acted upon 
     without objection, or, if objection is heard, the motion 
     shall be voted on without debate by the yeas and nays, which 
     shall be entered on the record''; and
       (3) In Rule XXIV, the phrases ``without debate'', ``except 
     when the doors shall be closed for deliberation, and in that 
     case'' and ``, to be had without debate''.

  Mr. HARKIN. Mr. Chief Justice, I ask for the yeas and nays.
  The CHIEF JUSTICE. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The CHIEF JUSTICE. The clerk will call the roll.
  The legislative clerk called the roll.
  The CHIEF JUSTICE. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 43, nays 57, as follows:

                         [Rollcall Vote No. 2]

             [Subject: Harkin motion to suspend the rules]

                                YEAS--43

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Cleland
     Collins
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Hutchison
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

[[Page S974]]



                                NAYS--57

     Abraham
     Allard
     Ashcroft
     Baucus
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Chafee
     Cochran
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Inhofe
     Jeffords
     Kyl
     Lincoln
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
  The CHIEF JUSTICE. Are there any other Senators wishing to vote or 
change their vote? If not, on this vote the yeas are 43, and the nays 
are 57. Two-thirds of the Senators voting, and a quorum being present, 
not having voted in the affirmative, the motion is rejected.
  Mr. REID addressed the Chair.
  The CHIEF JUSTICE. The Chair recognizes the Senator from Nevada.
  Mr. REID. May we have order in the Chamber, please?
  The CHIEF JUSTICE. The Senate will be in order.


                        ORDER FOR CLOSED SESSION

  Mr. LOTT. Mr. President, I move that we now go into closed session 
for the purpose of Senators debating the motion to dismiss.
  The motion was agreed to.
  The CHIEF JUSTICE. The Chair, pursuant to rule XXXV, now directs the 
Sergeant-at-Arms to clear the galleries, close the doors of the 
Chamber, and exclude all the officials of the Senate not sworn to 
secrecy.


                                 Recess

  Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that we take a 
10-minute break for the purposes of closing the doors and preparing for 
the debate.
  There being no objection, at 5:23 p.m., the Senate recessed until 
5:50 p.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.


                             Closed Session

  (At 5:50 p.m., the doors of the Chamber were closed. The proceedings 
of the Senate were held in closed session until 9:51 p.m., at which 
time, the following occurred.)


                              Open Session

  (At 9:51 p.m., the doors of the Chamber were opened and the Senate 
resumed proceedings in open session.)
  Mr. NICKLES. I ask unanimous consent that the Senate now return to 
open session.
  The CHIEF JUSTICE. Without objection, it is so ordered.


                         Order for Adjournment

  Mr. NICKLES. I ask unanimous consent that when the Senate adjourns, 
it stand in adjournment until the hour of 12 noon on Tuesday, and I 
further ask consent that during the remainder of the trial it be in 
order for Members to submit unanswered questions to the Chair.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                                Program

  Mr. NICKLES. On tomorrow, we will resume and begin debate on the 
motion to subpoena. I now ask unanimous consent that the time for 
argument be reduced to 4 hours, equally divided, as provided for under 
Senate resolution 16.
  The CHIEF JUSTICE. Is there objection? It is so ordered.
  Mr. NICKLES. Mr. Chief Justice, for the information of all 
colleagues, tomorrow we will begin the debate at 12 noon instead of 1 
o'clock.

                          ____________________