[Congressional Record Volume 145, Number 21 (Saturday, February 6, 1999)]
[Senate]
[Pages S1330-S1331]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          SUPPORT OF MOTION TO DISMISS ARTICLES OF IMPEACHMENT

 Mr. DODD. Mr. President, last week the Senate, sitting as a 
court of impeachment, voted on Senator Byrd's motion to dismiss the 
articles of impeachment brought by the Managers from the House of 
Representatives. I voted in support of this motion, and would like to 
briefly state my position on this important question.
  While the motion failed, it received the support of forty-four 
senators--eleven more votes than needed to acquit the President of the 
charges made by the Articles. Therefore, this vote demonstrates to a 
near certainty that there are insufficient votes to support the 
Managers' position that the President should be convicted.
  This result comes as a surprise to no one--including most if not all 
of those who support the President's removal. These Articles should 
never have been presented to the Senate. The President's actions were 
undoubtedly reprehensible. They deserve condemnation and may warrant 
prosecution after he leaves office. But they do not warrant removal--a 
sanction unprecedented in our nation's history, and one that the 
Framers of our Constitution envisioned would be used in only the rarest 
of circumstances to protect the country.
  The case presented by the Managers is fatally deficient in three 
respects:
  First, the facts presented, even if viewed in the light most 
favorable to the Managers' case, do not allege conduct that meets the 
high standard laid out by the framers for the impeachment, conviction, 
and removal from office of a president.
  Second, the articles as drafted are vague and contain multiple 
allegations--denying the President the fairness and due process that is 
the right of every American citizen, and depriving senators of the 
clarity that is essential to discharging their responsibility as triers 
of fact.
  Third, the Managers have failed to present facts that meet their 
heavy burden of proving the allegations contained in the Articles.
  Let me address these points in turn.
  The conduct alleged by the Managers to be worthy of conviction arises 
out of a private, civil lawsuit and a private, consensual, yet improper 
relationship between the President and Ms. Monica Lewinsky. It is the 
President's conduct in that lawsuit and in that relationship that are 
the basis of the charges at issue here. No charges arise from his 
official conduct as President.
  (It is worth noting that, with regard to the Jones matter, the 
Supreme Court itself considered the conduct alleged therein to be 
private. The Court ruled that, while the President may delay or avoid 
until leaving office lawsuits based on his official conduct, he may 
claim no such immunity in an action based on private conduct unrelated 
to official duties.)
  The Managers claim that what is at issue is not the President's 
private actions but his actions in connection with efforts to prevent 
his relationship with Ms. Lewinsky from becoming known to his family 
and others. These actions, the Managers argue--including his testimony 
in the grand jury and his statements to staff and others--are official 
in nature. However, these actions clearly arise out of the President's 
efforts to keep secret a personal relationship which he admitted to be 
wrong. Under no reasonable analysis can they be understood to relate to 
the President's official duties.
  It follows, then, that the President's actions certainly do not rise 
to the level of ``treason, bribery or other high crimes and 
misdemeanors'' set forth by the Framers as the standard for removing a 
president from office. As Alexander Hamilton explained, impeachment is 
to be reserved as ``a remedy for great injuries done to the society 
itself''. The impeachment process is intended to protect the nation 
from official wrongdoing, not punish a president for personal 
misconduct.
  It is not in my view reasonable to conclude that the President's 
actions--while by his own admission wrong and offensive--pose a danger 
to the institutions of our society. The President's past behavior did 
not--and his continuation in office does not--pose a threat to the 
stability of those institutions.
  Indeed, I submit that convicting and removing the President based on 
these actions, not the actions themselves, would have a destabilizing 
effect on our institutions of government. Were this scenario to come to 
pass, then henceforth any president would have to worry that he or 
she could be removed on a partisan basis for essentially personal 
conduct. That standard would weaken the presidency. In the words of 
Madison, it would in effect make the president's term equivalent to ``a 
tenure during pleasure of the Senate'', and upset the careful system of 
checks and balances established by the Framers to govern relations 
between the legislative and executive branches.

  The Articles also deserve to be dismissed because of the fatally 
flawed manner in which they are drafted. Those flaws are of two 
separate kinds.
  First, the Articles fail to allege wrongdoing with the kind of 
specificity required to allow the President--or indeed, any person--to 
defend himself, and to allow the Senate to fully understand and judge 
the charges made against him. White House counsel described the 
articles as an ``empty vessel'', a ``moving target'' where neither the 
President nor the Senate knows with precision what has been alleged. 
Senators were presented with videotaped testimony of former federal 
prosecutors who stated that standard prosecutorial practice requires 
that allegations of perjury and obstruction

[[Page S1331]]

must be stated with particularity and specificity. The allegations here 
have not been so stated. That lack of specificity is manifestly unfair 
to the President. And it is detrimental to the Senate's ability to 
discharge its responsibility as the trier of fact in this case.
  The second fatal structural flaw in the Articles is that the Managers 
have aggregated multiple allegations of wrongdoing into single 
Articles. Article I allows the President to be impeached for ``one or 
more'' of four enumerated, unspecified categories of alleged 
misconduct. Similarly, in Article II he is alleged to have obstructed 
justice in ``one or more'' of seven ways. This smorgasbord approach to 
the allegations creates the deeply troubling prospect that the 
President could be convicted and removed without two-thirds of the 
Senate agreeing on what precisely he did wrong. For this reason, too, 
dismissal is appropriate.
  Dismissal is, finally, appropriate because the facts undergirding the 
managers' case do not prove the criminal wrongdoing the managers 
allege. Manager McCollum told the Senate that it must first find 
criminal wrongdoing and then determine whether to remove the President 
from office. While it is left to each Senator to determine the standard 
of proof he or she will use to judge the evidence, manager McCollum's 
own analysis suggests that that standard should be beyond a reasonable 
doubt. After all, that is the standard used in all other criminal 
cases; why should the President be subjected to any lower standard than 
that to which all citizens are entitled? Indeed, he should not--not 
only because he deserves no less fairness than other citizens, but also 
because this high standard of proof is appropriate to the gravity of 
the sanction the Senate is being asked to impose.
  In my view, the Managers have failed to prove criminal culpability on 
the part of the President beyond a reasonable doubt. The record is 
replete with exculpatory, contradictory, and ambiguous facts.
  Consider, for example, these:
  (1) Ms. Lewinsky--who was questioned some 22 times by investigators, 
prosecutors, and grand jurors (not to mention twice by the Managers 
themselves)--said under oath that neither the President nor anyone else 
ever asked her to lie.
  (2) She also said--again, under oath--that no one ever promised her a 
job for her silence.
  (3) Further, she stated without contradiction that the President did 
not suggest that she return the gifts given her by the President to him 
or anyone else on his behalf.
  (4) Betty Currie, the President's secretary--who was questioned some 
nine times--likewise testified that the President did not suggest that 
the gifts to Ms. Lewinsky be returned.
  (5) She also said that she never felt pressure to agree with the 
President when he spoke with her following the Jones deposition, and, 
indeed, felt free to disagree with his recollection.
  (6) Lastly, the Managers argued that a December 11, 1997 ruling by 
the judge in the Jones case, permitting the calling of witnesses 
regarding the President's conduct, triggered intensive efforts that 
very day by the President and Vernon Jordan to help Ms. Lewinsky find a 
job. We now know that the facts contradict that account of the 
Managers. A meeting on that date between Mr. Jordan and Ms. Lewinsky 
was scheduled three days earlier. It was held several hours before the 
judge's ruling. And at the time of that ruling, Mr. Jordan was on an 
airplane bound for Holland.
  In addition, factual discrepancies between the President and Ms. 
Lewinsky--about when their relationship began, about the nature of the 
inappropriate contacts between them, about the number of those 
contacts, and about the number of inappropriate telephone calls between 
them--amount to differences in recollection that in no way can be 
considered criminal on the part of the President. More fundamentally, 
they cannot be considered material to this proceeding. Not even the 
Office of Independent Counsel considered these discrepancies relevant 
or material to the matter at hand. It cannot reasonably be argued, in 
any event, that the President should be removed from his office because 
of them.
  For all of these reasons--the failure of the Managers to prove beyond 
a reasonable doubt that the President committed criminal wrongdoing, 
the structural flaws in the Articles themselves, and the failure of the 
allegations, even if proven, to warrant the unprecedented action of 
conviction and removal--these Articles should be dismissed. We have 
reviewed enough evidence, heard enough arguments, and asked enough 
questions to know with reasonable certainty that the flaws in the 
Managers' case cannot be remedied. We know enough to decide this matter 
now. The national interest is best served not by extending this 
proceeding needlessly, but by ending it.
  I regret that the Senate has failed to do that. But I continue to 
believe that we must dispose of this matter as soon as possible so we 
can return to the other important business of the nation.

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