[Congressional Record Volume 145, Number 16 (Thursday, January 28, 1999)]
[Senate]
[Pages S1107-S1109]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    MOTION OF THE HOUSE MANAGERS FOR THE APPEARANCE OF WITNESSES AT 
                   DEPOSITIONS AND TO ADMIT EVIDENCE

 Mr. LEAHY. Mr. President, the House Managers want to conduct 
depositions of at least four people and their requests to admit 
affidavits could very well lead to the depositions of at least three 
others and, indeed, many more witnesses. The three people they 
expressly ask be subpoenaed are Monica Lewinsky, Vernon Jordan and 
Sidney Blumenthal. All three have previously testified before the Starr 
grand jury and Ms. Lewinsky has been interviewed or testified at least 
23 times on these matters over the last year.
  The fourth deponent requested by the House Managers is none other 
than the President of the United States. Although they characterize 
their request

[[Page S1108]]

as a ``petition'' that the President be requested to appear, in their 
Memorandum, the House Republican Managers are less coy about their 
request. They note that ``obtaining testimony from the witness named in 
the motion, and additionally from the President himself'' is what they 
seek.
  The House Manager' request is unprecedented in impeachments. The 
Senate has never formally requested or demanded that a respondent 
testify in his own impeachment trial. Should the President decide that 
he wants to speak to the Senate, that would be his choice. But I cannot 
support an effort that would have the Senate reject over 200 years of 
our jurisprudence and begin requiring an accused to prove his 
innocence.
  The presumption of innocence is a core concept in our rule of law and 
should not be so cavalierly abandoned. The petition of the House 
Managers is a clever but destructive effort to stand this trial on its 
head. As a former prosecutor and trial attorney, I appreciate the 
temptation to turn the tables on an accused person to make up for a 
weak case, but the Senate should not condone it. The burden of proof is 
on the House to establish why the Senate should convict and remove from 
office the person the American people elected to serve as their 
President.
  I commend President Clinton for focussing on his duties as President 
and on moving the country forward. That the Congress remains immersed 
in this impeachment trial is distraction enough from the functions of 
our federal government. We have heard hours of argument from the House 
Republican Managers and the response of the President's lawyers. 
Senator Byrd has, pursuant to our Unanimous Consent Resolution 
governing these proceedings, offered a motion to dismiss to bring this 
entire matter to conclusion. If, on the other hand, the majority in the 
Senate wishes to continue these proceedings, that is the majority's 
prerogative.
  The House Managers apparently want to excuse the weaknesses in their 
case by blaming the Senate for not calling the President to the stand 
or the President for not volunteering to run the gauntlet of House 
Managers. Having had the House reject their proposed article of 
impeachment based on the President's deposition in the Jones case, the 
House Managers are left to pursue their shifting allegations of 
perjury  before the grand jury. Their allegations of perjury have 
devolved to semantical differences and the choice of such words as 
``occasional'' and ``on certain occasions.'' Their view of perjury 
allows them to take a part of a statement out of context and say that 
it is actionable for not explicating all relevant facts and 
circumstances. They view perjury by a standard that would condemn most 
presentations, even some of their own presentations before the Senate.

  In addition to their request that the President be deposed, the House 
Republican Managers also propose to include in this record affidavits 
and other materials apparently not part of the record provided by Mr. 
Starr or considered by the House. Ironically, in so doing, they have 
chosen to proceed by affidavit. They must know that by proffering the 
declaration of an attorney for Paula Jones about that case and the link 
between that now settled matter and the Starr investigation, they are 
necessarily opening this area to possible extensive discovery that 
could result in the depositions of additional witnesses, as well.
  Does anyone think that the Senate record can fairly be limited to the 
proffered declaration of Mr. Holmes without giving the President an 
opportunity to depose him and other relevant witnesses after fair 
discovery? The links between the Jones case and the Starr investigation 
will be fair game for examination in the fullness of time if the Holmes 
declaration proffered by the House Managers is accepted.
  The Holmes declaration is at variance with the House Managers' 
proffer. The declaration suggests that the Jones lawyers made a 
collective decision, whereas the House Managers suggest that the 
decision to subpoena Ms. Currie was Mr. Holmes' decision. Mr. Holmes 
declares that no Washington Post article played any part in his 
decisionmaking to subpoena Ms. Currie and that the ``does not recall'' 
any attorney in his firm saying anything about such an article ``in the 
discussions in which we decided to subpoena Ms. Currie.'' This could 
lead to discovery from a number of Jones lawyers.
  The Holmes declaration says that the Jones lawyers ``had received 
what [they] considered to be reliable information that Ms. Currie was 
instrumental in facilitating Monica Lewinsky's meetings with Mr. 
Clinton and that Ms. Currie was central to the `cover story' Mr. 
Clinton and Ms. Lewinsky had developed to use in the event their affair 
was discovered.'' That assertion was strongly omitted from the House 
Republican Managers' proffer. That assertion raises questions abut what 
the Jones lawyers knew, when they knew it and whether there was any 
link to the Starr investigation. If the purpose of the declaration is 
to rebut the notion that Ms. Currie was subpoenaed because the Jones 
lawyers were following the activities of the Starr investigation, this 
declaration falls far short of the mark. It raises more questions that 
it resolves.
  I am surprised to see a judicial clerk submit an affidavit in this 
case. The one thing that is clear from Mr. Ward's affidavit is that it 
does not support the conclusions drawn in the House Managers' proffer. 
Mr. Ward says only that President Clinton was looking directly at Mr. 
Bennett at one moment during the argument by the lawyers during the 
deposition. He does not aver, as the House Managers suggest he would 
competently testify, that ``he saw President Clinton listening 
attentively to Mr. Bennett's remarks.''

  While the affidavit of Barry Ward cannot convert the President's 
silence into statements, it does provide one perspective on the 
President's deposition in the Jones case. Accepting that proffered 
evidence may, however, prompt the President's lawyers to want to 
examine other perspectives to give the Senate a more complete picture 
and a fairer opportunity to consider what was happening during the 
discussions among Judge Wright and the lawyers. For that purpose, is 
the Senate next going to authorize the deposition of Judge Wright and 
the other lawyers who attended the deposition? The circumstances under 
which Mr. Ward came to take such an affidavit and what he knows about 
the variety of issues mentioned in the House Managers' proffer on this 
item will undoubtedly be fair subjects of discovery by the President's 
lawyers if this is admitted.
  The House Managers characterized documents as certain telephone 
records and the participants in various telephone calls whose 
identifies are not revealed by the records. Indeed, those proffered 
documents are without authentification. The House Republican Managers' 
brief goes even farther, suggesting that the telephone records will 
prove what happened at the White House gate on December 6, and 
asserting the identity of those who participated in telephone calls and 
the content of those telephone calls and concluding that they prove 
meetings and conversations that were not even by telephone. The 
documents appear to be a series of numbers. Giving them content and 
context will require more than mere authentification and any such 
testimonial explanation can be expected to engender further discovery, 
as well.
  Now let me turn to the witnesses that the House Managers have 
identified by name and for which they are expressly seeking subpoenas 
at the outset of this discovery period. I understand that under Senate 
Resolution 16 Senator must vote for or against the entire package of 
witnesses and discovery requested by the House.
  The House Republican Managers have already interviewed Monica 
Lewinsky after Mr. Starr arranged for that interview and had her 
ordered to comply. In light of the circumstances under which she has 
already been forced to cooperate with the House Republican Managers, 
any doubt as to the coercion being exercised through her immunity 
agreement could not be more starkly seen. I seriously question Ms. 
Lewinsky's freedom to express herself in the present circumstances and 
suggest that her immunity situation will inevitably affect the 
credibility of anything that she might ``add'' to the House's case. Mr. 
Starr has the equivalent of a loaded gun to her head, along with her 
mother's and her father's.
  Consider also the report in The Washington Post on Tuesday that Mr. 
Starr

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tore up her immunity agreement once before when she tried to clarify 
her February 1998 proffer to note that she and the President had talked 
about using a ``cover story'' before she was ever subpoenaed as a 
witness in the Jones case, not after. That is now a key point of the 
House Managers' proffer but it points now in the other direction by 
suggesting that she is now willing to testify that the President 
``instructed'' her to invoke cover stories if questioned in connection 
with the Jones case. Would not such a shift in testimony necessarily 
lead to discovery into the impact of the immunity agreement on her 
testimony and the many twists and turns in the 7-month negotiation 
between Mr. Starr and Ms. Lewinsky's attorneys and the pressures 
exerted upon her over the last six months?

  Moreover, press accounts of the celebrated interview of Ms. Lewinsky 
by the House Managers last weekend suggest that she may also have said 
things during that interview that were favorable to the President. The 
President's counsel are now in the untenable position of having to 
oppose the House Managers' motion without specific knowledge of any 
exculpatory information that Ms. Lewinsky may have provided that would 
weigh against the need to call her as a witness. That is unfair and 
contrary to basic precepts of our law. The House Managers created this 
circumstance and should not benefit from it.
  The House Managers also insist that they must open discovery to take 
the deposition of Vernon Jordan. Mr. Jordan has been interviewed or 
testified under oath before Starr's grand jury at least five times 
already. The House Managers' proffer is merely that they expect that 
his live testimony will lead to reasonable and logical inferences that 
might help their case and somehow link the job search to discouraging 
her testimony in the Jones case. That is not a proffer of anything new 
but an attempt to take another shot at eliciting testimony that Mr. 
Starr could not.
  The House Managers also insist that the Senate must depose Sidney 
Blumenthal. Mr. Blumenthal also testified before the Starr grand jury. 
The House Managers' proffer notes nothing new that he would be expected 
to provide.
  If the President has been willing to forego the opportunity to cross 
examine the witnesses whose grand jury testimony has been relied upon 
by the House Managers, that removes the most pressing need for further 
discovery in this matter. After all, Ms. Lewinsky and Mr. Jordan, and 
to a lesser extent, Mr. Blumenthal, were interviewed for days and weeks 
by the FBI, trained investigators, Mr. Starr's lawyers and then 
testified, some repeatedly, before the Starr grand jury. That is about 
as one-sided as discovery gets--no cross examination, no opportunity to 
compare early statements with the way things are reconfigured and re-
expressed after numerous preparation sessions with Mr. Starr's office.
  These witnesses testified under threat of prosecution by Mr. Starr. 
Ms. Lewinsky remains under a very clear threat of prosecution, even 
though she has a limited grant of immunity from Starr. This special 
prosecutor has shown every willingness to threaten and prosecute.
  If the President has not initiated efforts to obtain more discovery 
and witnesses and is willing to have the matter decided on the 
voluminous record submitted to the House, the House Managers carry a 
heavy burden to justify extending these proceedings further and 
requiring the reexamination of people who have already testified.

  I heard over and over from the House Managers that there is no doubt, 
that the record established before the House and introduced into this 
Senate proceeding convinced the House to vote for articles of 
impeachment to require the removal of the President from office last 
month. The House Managers have told us that they have done a 
magnificent job and established their case.
  Based on the House Managers' Motion and their proffer in 
justification, I do not believe that they have justified extending 
these proceedings into the future through additional depositions and 
additional evidence. Can anyone confidently predict how many witnesses 
will be needed to sort through the evidentiary supplement that the 
House proffers and the issues that it raises? Can anyone confidently 
predict how long that discovery will take and how long this trial will 
be extended? And for what? What is the significant and ultimate 
materiality to the fundamental issues being contested at this trial of 
the materials the House is moving now to include in the record? 
Although the House Managers can say that they only sought to depose 
three witnesses, does anyone think that in fairness the President's 
lawyers and the House Managers together will not end up deposing at 
least 10 people if the Senate were to grant the House motion?
  The Senate should not extend these proceedings by a single day. The 
Senate runs a grave risk of being drawn down into the mire that stained 
the House impeachment proceedings. Republicans and Democrats have all 
told me that they do not believe that there is any possibility that 
this trial will end in the conviction of the President and his removal. 
In that light, the Senate should have proceeded to conclude this matter 
rather than extend it.

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